The Constitutional Addendum Dissected

On June 18, the Supreme Council of the Armed Forces (SCAF) announced amendments to the Constitutional Declaration of March 2011. The annexed articles appeared in the official state gazette, outlining the president’s powers and SCAF’s position after the People’s Assembly dissolution by the Constitutional Court. Egypt Today talked to constitutional law professor at the American University in Cairo, Gianluca Parolin, dissecting the added articles and explaining their legal implications. Q: Can you explain Articles 53 and 56 to our readers?  GP: [Article 53-bis and Article 53-ter] create a double-sovereignty system: The state and the Supreme Council of the Armed Forces.  Art.53-bis grants SCAF the right to decide its "internal" affairs beyond the reach of any of the state’s institutions — be it the Parliament or the president. Art.53-bis requires the approval of SCAF for the president to declare war.  Art.53-bis thus limits the internal sovereignty of the state (but setting off the table all the decisions that affect the military) whilst art.53-ter limits the external sovereignty of the state — by limiting the president's war powers and conditioning them to the approval of a body on which the state has no control. Art.56 is but an interim provision that allows SCAF to issue legislation until the next parliament will be in session.  Any law approved by SCAF, however, will need to be enacted by the president in order to come into force.  Q: Regarding Article 60, does this mean that we will have a military written constitution? What do you think of that from a legal standpoint? GP: Art.60-bis and art.60-ter provide for a prominent role for SCAF in the drafting of the constitution.  Art.60-bis gives SCAF the right to appoint a new constituent assembly in case of any impediment affecting the existing one.  More far-reaching is, however, art.60-ter.  Through an articulate system of possible appeals, it allows five institutional actors including the president, SCAF, and a minority in the constituent assembly the right to object to any provision in the draft.  Unless solved, the conflict will be decided by the Supreme Constitutional Court.  Q: In Article 60 what do you think of the stated right to contest clauses in the constitution with a veto right and a ruling by the Supreme constitutional court? What exactly does this clause assure for the process of writing a constitution? GP: Art.60-ter has two main problems: First, there is no reason why the [judges] actually sitting on the Supreme Constitutional Court (SCC) — all appointed by the former president — should have the final say on the new constitution.  Second, the grounds on which these [judges] will decide are, at best, broad: “The goals of the revolution and its fundamental principles fulfilling the supreme interests of the country, or the well-established principles of previous Egyptian constitutions.” Progressive and conservative readings are here in full conflict and one can only guess what position the SCC might take.  Art.60-ter might sound a lot like the one adopted by the interim constitution during the South African transition, but the Constitutional Court in South Africa decided on a document (the interim constitution) that provided for clearly defined principles, and principles on which all political forces agreed upon — the outcome of the so-called Multi-Party Negotiating Process. Q: What happened to Article 38 concerning the parliamentary elections? GP: Art. 38 is one of the most poorly drafted provisions, and it has already been amended twice.  In its March 2011 version, it provided for a statute to set the electoral system on which to run the parliamentary elections and it allowed for the setting of a minimum participation for women. In September 2011, in the height of the debate over the parliamentary elections and the threat of the SCC ruling the electoral system unconstitutional, SCAF issued a third constitutional declaration amending art.38. [It indicated] that the electoral system will be based on the [independent] system for one third of the seats and closed party-list for the remaining two thirds.  The minimum participation for women was left out, and the successive decision to allow candidates with party affiliation run for the individual seats ultimately led to the SCC ruling of June 14, 2012.  The third [and] current version goes back to the early stipulation, but [leaves] out possible quotas for women candidates.  Parliament […] will be free to decide the electoral system when issuing the statute regulating parliamentary elections — provided it does not conflict again with the well-established court's case law — but the President will have to agree on it for the statute to come into force. Q: Overall, what do you think of these additional clauses and what are their implications for the coming period?  GP: The fourth constitutional declaration is in line with the three that preceded it in that SCAF clearly retains its constituent powers.  What seem to be the two present dangers are a divided sovereignty and the blank check in the hands of the Supreme Constitutional Court on the new constitution.