Cairo Update: After the referendum, a new turn in constitutional developments

Just a few days before the constitutional amendment referendum held in Egypt on March 19, the current ruling authority, the Supreme Council of the Armed Forces (SCAF), announced that the results of the referendum, positive or negative, would be followed directly by a “constitutional declaration.” Prior to that announcement, it had been expected that if the referendum passed, the SCAF would merely amend the provisions of the constitution as provided for in the referendum and then reinstate the constitution. In such a case, the declaration was anticipated to be a straightforward statement of the timetable for subsequent parliamentary and presidential elections. If the referendum did not pass, the SCAF would have to come up with a new plan.

The referendum did pass, but one week later, the SCAF still has not issued the constitutional declaration. During the course of the week, more information has been released about its expected contents. The press reported rather consistently that the declaration would contain the amended constitutional provisions, other provisions from the constitution that are relevant in this interim period, and the most important laws (as amended by the constitutional drafting commission) for the coming elections. (These include the laws on the formation of political parties and the election process for both houses of parliament and the presidency.) This bundle of constitutional provisions and laws would act as a temporary constitution until new parliamentary and presidential elections take place and a new constitution is subsequently drafted and accepted by Egyptians.

The idea of a temporary constitution raised significant questions, especially among judges and lawyers paying close attention to the constitutional aspects of the transition process. Will the temporary constitution include a role for the SCAF, so that it can become a constitutional actor? Why was a referendum to amend certain provisions of the constitution even needed, if the SCAF in fact has the power to make substantive constitutional decisions on its own? And if a referendum to amend the constitution really was needed, is a new referendum also necessary in order to accept the interim constitution? The SCAF has not provided answers to these
questions.

Further, the sense of certainty with which the SCAF initially announced that a constitutional declaration would be forthcoming now seems to be fading quickly. News reports suggest that it may be several more days, and there is no explanation for the delay other than vague statements that the SCAF wants to ensure widespread agreement on its contents. The delay may suggest that the SCAF is reevaluating its plan to hold in quick succession parliamentary and then presidential elections. It is even possible that the opponents of the referendum have convinced some on the SCAF that the process it initially envisioned might exclude the youth movement and others from effectively competing in the elections. The delay may mean that the SCAF is finally taking note of the concerns raised by some constitutional law scholars, most vocal among them Supreme Constitutional Court justice Tahani al-Gebali, about the constitutionality of the process and the possibility that aspects of it could later be challenged as unconstitutional. And the delay certainly indicates that the path forward in the constitutional process is more complicated than the SCAF admitted when it presented the referendum to the people for a vote.

–Kristen Stilt, Northwestern Law School