—Mohamed Abdelaal, Assistant Professor of Constitutional and Administrative Law, Alexandria University, School of Law
Was the overthrow of President Mohamed Morsi on June 30 a popular revolution or a military coup? The debate is outdated.
What is more important is that the events of June 30 returned Egypt to square one, right back where it started from in January 2011, when President Hosni Mubarak was forced to step down under the pressure of massive popular demonstrations.
Today, the major challenge facing Egyptians is how to avoid the mistakes of the first democratic transition after the 2011 revolution in order to make the current one more viable.
In this post, I offer suggestions for how Egypt can learn from its previous mistakes.
One of the fatal mistakes that needs to be avoided is that after the 2011 revolution, the Egyptians elected a president and a parliament without drafting a new constitution after the suspension of the 1971 Constitution. In fact, when the Egyptians proceeded to this step, it was as if they had agreed to play a game without knowing its rules; so the outcome was simply that a president was elected without knowing his constitutional powers and duties, which created many doubts about his intent to reserve broad powers for himself.
Specifically, in the summer of 2012, when a Constituent Assembly was elected by the Islamist-majority Parliament to draft Egypt’s new constitution, the Parliament and President Morsi tried to control this Assembly. In doing so, the Parliament intentionally made the Assembly, which was composed of 100 members, heavily dominated by Islamists. More precisely, Islamic parties filled 24 out of the 39 parliamentary seats and the Al-Azhar Islamic Institute occupied 5 of the independent seats. Further, in his 2012 Constitutional Declaration, President Morsi immunized this Constituent Assembly from dissolution by the courts and also prevented its decisions from being challenged before the courts. What resulted was the 2012 suspended Constitution, a constitution that many Egyptians and political activists did not cheer.
Now, in their second democratic transition, Egyptians should agree on the rules of the game before playing it. Thus, a constitution should be drafted first before proceeding to either presidential or parliamentary elections. The urgent question right now is how this constitution should be drafted.
First, the new constitution should end the blurry status regarding the system of governance in Egypt under the 1923, 1971, and 2012 Constitutions. Specifically, Egypt’s new constitution should plainly adopt a clear system of governance that properly draws the borders among the executive, legislative, and judiciary branches and determines the relations among them. In both the 1971 and 2012 Constitutions, Egypt adopted a semi-presidential system of governance patterned after the German Weimar Constitution of 1919 as a mid-point between presidentialism and parliamentarism, the two classical systems of governance. However, in fact, Egypt intentionally deviated from the accepted features of semi-presidentialism by adopting a unique version of this intermediary system of governance that made it easy to install the president as a dictator figure. More precisely, unlike the situation in semi-presidentialism, Article 132 of the suspended 2012 Constitution, on the onet hand, lists the president as the sole executive who enjoys quite tremendous constitutional powers, and, on the other hand, Article 141 provides that the president assumes and exercises his powers through the prime minister, his deputies, and the ministers, placing the burden of political accountability on the prime minister and the cabinet.
Consequently, although the president is the sole executive with tremendous executive powers, the 2012 Constitution relieved the president from being held politically accountable for official wrongdoings, which is ordinarily a stark deviation from semi-presidentialism. Although Article 152 provides that the president may be prosecuted before a special court for committing a felony or treason, this is ineffective simply because the impeachment jurisprudence in Egypt is to a great extent far too immature to consider this Article an actionable impeachment vehicle. Moreover, neither the Article nor the debate that preceded the referendum clarifies what constitutes an impeachable offense. Further, using the word felony instead of high crimes is likely to steer the Article towards the criminal law arena, which means that the Article does no more than state that the president, like any other ordinary citizen, is criminally accountable.
Accordingly, if Egypt’s new constitution continues the semi-presidential system, it should uphold the hallmark of this system: that the president is not the sole executive. A president and a cabinet should exist and be accountable to parliament. Relatedly, the new constitution should determine and explicitly enumerate the presidential powers in such a way that does not pave the way for another autocratic regime. In the same context, a president with quite considerable executive powers should not be immune from accountability. Thus, an impeachment article should be included and declare that the president is politically accountable for official misconduct and it should be precise regarding impeachable offenses. Indeed, a well-drafted presidential impeachment article will help to free Egypt from the joke that a president is to be inaugurated by elections but cannot be dethroned by any means but revolution.
Another urgent need is that the new constitution should guarantee the independence of the judiciary. In doing so, Egypt’s new constitution should end any kind of control over the judiciary. Specifically, Article 4 of the 2012 Constitution, which requires that the Al-Azhar Institute, a prominent Islamic institute, be consulted on issues related to Islamic sharia law, could be construed to mean that the judiciary is likely to serve at the pleasure of Al-Azhar simply because a judge will be obliged to consult Al-Azhar before ruling over any case that involves a sharia matter. Thus, this Article should be omitted or at least amended in such a way that clearly determines the role of Al-Azhar and frees the judiciary from any external influence. Likewise, the new constitution should figure out an alternative way regarding the appointment of the head of the Supreme Constitutional Court (SCC) other than vesting it solely in the hands of the president. Vesting the power of appointing the head of the SCC in the president’s hands threatens the Court’s independence as it causes the Court to serve at the pleasure of the president. Consequently, taking this job out of the president’s hands or at least finding some other parties, such as the Parliament, to carry out this job beside the president is likely to better ensure the independence of the court.
Last but far from least, deliberations and arguments from the drafting process should be recorded and documented as a kind of a legislative history simply because knowing the framers’ intent could help in settling any future conflict regarding the interpretation of a certain article.
There remains much work to be done Egypt. But these are a few steps that can help Egypt take the appropriate steps as it continues its transition to democracy.
Suggested Citation: Mohamed Abdelaal, Egypt: What’s Next?, Int’l J. Const. L. Blog, Aug. 12, 2013, available at: http://www.iconnectblog.com/2013/08/egypt-whats-next
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