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Pretty Names and Ugly Things: Getting to Know the Law of Egypt’s Second Transitional Period

[20 April 2012, protesters refusing a constitutional referendum process under military rule. The Arabic reads: [20 April 2012, protesters refusing a constitutional referendum process under military rule. The Arabic reads: "no constitution under military rule". Image originally posted to Flickr by Gigi Ibrahim]

Since 25 January 2011, Egypt has been ruled by three consecutive basic documents, each buffeted with a collection of military and presidential decrees, then set in litigious motion with a seemingly never ending stream of conflicting court decisions. 

It all began with the March 2011 Constitutional Declaration, issued by the Supreme Council of the Armed Forces (SCAF), and intended to steer the country through its “first” transitional period. This legally ended with the 2012 Constitution coming into effect after public referendum, only to be “suspended from application” on 3 July 2013.

Subsequently, Egypt’s current Interim President, Chief Justice Adly Mansour, issued a new Constitutional Declaration on 8 July 2013. Composed of thirty-three articles, this document not only lists the rights and liberties enjoyed by citizens over what is now called the “second” transitional period, but also crucially, it provides signposts for the kind of “roadmap” that is to bring our second transition to a democratic close.

Barely hours after the 8 July Declaration came into effect, the document was slammed by everyone who was absent from its drafting. This included Tamarod, the National Salvation Front, and Dr. Mohammed ElBaradei himself. At first glance, one thought that addressing the concerns raised by such important political actors would be made a condition for any cabinet appointments after 30 June, or that at least no oath of office would be taken before appropriate amendments were introduced to the Declaration? 

None of that has happened, and once again yet another set of “transitional proceedings” came streaming live from the Presidential Palace, and with it yet another state of jurisprudential confusion.

Given the suspension of the 2012 Constitution, on what basis was the Interim President sworn into office exactly? And on what constitutional terms did Dr. ElBaradei assume responsibility as the country’s vice president, only to be followed by the entire Hazem Beblawi government swearing yet another oath of office? To what, in fact, were these figures swearing?  To respect the 8 July Declaration and uphold its statutes?  And if so, where is the cause for alarm?”

A detailed answer to these questions can be found in a recently issued report by the National Community for Human Rights and Law (NCHRL), entitled “An Authoritarian and Deceptive Constitutional Declaration.”  The Report compares legal articles across the SCAF’s 2011 Declaration, the 2012 Constitution, and finally the 8 July Declaration, all with a handy table to illustrate major shifts across the three documents.

On form, the NCHRL Report criticizes the 2013 Declaration for ignoring any reference in its preamble to the will of the people, on which the document’s legitimacy rests, and sufficing instead with formal reference to the Statement of the General Command of the Armed Forces issued briefly before the Declaration was born. Not only does this omission reveal that the will of the 30 June masses had no role in the drafting of the document, it more dangerously accepts the events of 3 July as a military coup, rather than a revolution, through which the Egyptian people reclaimed their sovereign power.

This simple omission has deep implications. For one thing, the 8 July Declaration provides no grounds for initiating a process of transitional justice to hold accountable those who stand behind the murder and torturing of Egyptians under Hosni Mubarak, subsequent SCAF rule, or the Morsi regime after them.  There is also no mention of restructuring any of the deep state institutions, most notably the ministry of interior and the state media. Additionally, the Declaration does not come close to addressing the process of national reconciliation, as should befit the historic moment at which the document was issued.

These formal objections on the Declaration’s preamble are echoed in substance through the thirty-three articles, which ensue, raising objective cause for doubting any rule of law sincerity in the minds of its drafters. Specifically, the NCHRL Report offers six major sets of criticism; each is serious, and can be summarized as follows:

1. The Declaration provides constitutional cover for exceptional legal measures, mixed with a significant retreat in terms of rights and liberties, all signaling a premeditated intention against the deposed president and his leading allies—and after them any element of the opposition the president may wish to prosecute.

Compared with the 2012 Constitution, the 8 July Declaration is nothing short of dictatorial, for all the rights and liberties enshrined in the former are gone from the latter.  Gone is the 2012 constitutional requirement for state compensation if private property that is nationalized or appropriated for public benefit, and gone with it is the article which used to require a judicial order for any monitoring of personal mail or other means of communication.  

Along with those, the Declaration omitted multiple safeguards previously contained in its 2012 predecessor, such as the right to be informed of the reason of arrest within twelve hours; the defendant’s right to legal representation before prosecution within twenty-four hours; the state obligation to pay damages for unwarranted preventative detentions; the prohibition against home surveillance; and the guarantee that residents will be notified before their homes can be searched.

Absent also from the Declaration is the 2012 constitutional prohibition against house arrest without judicial order. Morsi was of course the first victim of that omission, and there is nothing, constitutionally speaking, that forbids placing others under house arrest in the future. 

The same goes for media shut downs, since the Declaration also failed to stipulate that a judicial ruling is required to close private television channels, as was the case in the 2012 document, and we all know that Islamist stations were the first victims of this omission, which can apply to others in the future too, and until the end of our second transition. 

In addition to all the above, and in continued contrast with the 2012 Constitution, the 8 July Declaration has omitted all reference to the rights of workers in free and independent unions, their right to peaceful strikes, and lifts the criminalization of influence peddling for job procurement in the public sector. Also left out is the 2012 article that specifically required the presence of a judicial order to dissolve civil society associations.  What the Declaration includes instead is a vaguely worded prohibition against “anti-society” associations, or those of a “militia” nature. The latter is noteworthy given that the Declaration has also ignored the old 2012 articles guaranteeing the right to form cooperatives and unions.

2. The privileged position of the Armed Forces under the 2012 Constitution was kept in place and reinstated verbatim in the 8 July Declaration.

So for example, any discussion of the Armed Forces budget may only take place in meetings of the National Defense Council, whose exact membership balance between civilians and the military was deferred to law, and has proven heavily weighted in favor of the latter. But keeping with the spirit of the times, there is no mention of SCAF in the 8 July Declaration, with reference made instead to the army’s “General Command,” which has in effect been running the current situation now since the retirement of Field Marshal Mohamed Hussein Tantawi and General Sami Anan almost a year ago.

Likewise, the Declaration once again legalizes military trials for civilians by omitting the procedural curtailment previously stated in Article 198 of the now-suspended 2012 Constitution. That article had specifically forbidden trying civilians before military courts except in cases of crimes committed against the armed forces. By omitting this this article, the Declaration makes it possible for exceptional courts and/or martial judicial proceedings to take place throughout the second transitional period.

3. The 8 July Declaration stripped both the Office of Administrative Prosecution and the State Litigation Bureau of the judicial character they used to enjoy under the 2012 Constitution, though members of the two bodies still retain the formal frills of office. 

More specifically, Article 20 of the Declaration stipulates a blanket prohibition against any amendment to laws regulating the judiciary as long as the Declaration stays in force.  This eliminates the possibility of legal reform where questions of judicial independence or reparations for trying civilians before military court are concerned. It also vests the Interim President with the power of appointing the country’s Attorney General, just as the case was in both Mubarak and Morsi eras.

As such, Article 20 has been defended as an expression of the Interim President’s desire not to meddle in judicial affairs, and avoid getting into a conflict of interest situation, given his prior position as Chief Justice of the Supreme Constitution Court. 

Yet, in reality, the Declaration has already meddled on the subject, specifically in Article 16, which striped Administrative Prosecutors and members of the State Litigation Bureau of the judicial character they used to enjoy under the 2012 Constitution. This was a controversial matter that remains hotly debated in judges’ circles today. Legitimate doubts can therefore be raised over the interim President and his neutrality in his office, and whether his duties might be influenced by the fact that he is both the head of state as well as a sitting Judge on the bench. 

These doubts are further compounded by the fact that 8 July Declaration has stripped the Supreme Constitutional Court of its abstract review powers previously enjoyed under the 2012 Constitution, so that the Court can now no longer rule on the constitutionality of draft legislation before it is issued into law. This will doubtless reflect on current cases before the Court, specifically those that will govern upcoming parliamentary and presidential elections – and the Court has a long set of precedents in which it declared transitional measures unconstitutional on exactly the same grounds.

4. The 8 July Declaration has entirely moved executive power back to the hands of the President, almost entirely in the same manner of Mubarak rule before the revolution. 

While the 2012 Constitution opted for a mixed system of executive power, handing the office of prime minister much of the power previously enjoyed by the president, the Declaration by contrast stripped these powers back, and came empty of any provision determining what the cabinet or even the vice president may do or not. 

This means that the powers of Beblawi’s government, and of ElBaradei’s vice president’s office, all depend upon what the Interim President delegates to them. And since men accepted office without having any semblance of a constitutionally backed job description, it is only a matter of time until resignations from one office or another will take place, specifically over disputes of power sharing, or the obvious lack thereof. 

5. As set in the 8 July Declaration, the “roadmap” out of the second transitional period is not only vague and confusing, but it also fails to deliver on the people’s demand for early presidential elections.

The Declaration specifies that a committee of ten experts will determine which articles should be amended from the 2012 Constitution. Those experts will then submit these amendments for discussion to a committee of fifty members, intended in turn represent the various sectors of Egyptian society.

In doing so, the Declaration effectively eliminated the representatives of the people from the process of deciding which articles require amendment in the first place – exchanging those representatives for “legal experts”, and failing in the process to set a deadline for the formation of the committee of fifty. The Declaration did not even establish standards for selecting members of that committee and determining which elements of the Egyptian people are to be represented there. And no one in his right mind would agree that the immense diversity of Egyptian society can be justly reduced to fifty representatives only.

Worse still, the Declaration gives priority to holding parliamentary elections over presidential ones, despite the fact that popular will has demanded early presidential elections as the only near consensus issue leading up to 30 July. The Declaration even failed to set a deadline for holding presidential elections.  

All of the above has undermined the country’s future “road map,” an already much derided term in itself. It is particularly shocking that the Declaration has failed to address, even for form’s sake, any likelihood that the Egyptian people might reject the constitutional amendments when they vote them in public referendum, and has therefore come free of any provisions on how to deal with such a scenario. 

6. Finally, the Declaration has pandered for Salafi support by keeping the Islamic law articles they added to the 2012 Constitution essentially intact today.

While the first article of the 8 July Declaration incorporates Article 219 of the suspended Constitution, which limits the principles of Shari‘a to only those sources recognized in Sunni jurisprudence. It was this position that compelled some churches to reject the 2012 Constitution, and many have warned that it will complicate the system of personal status laws applied in Egypt since 1920. That system depends on a method of selecting and adapting from both Sunni and Shi‘i sources, so that over a century now, this hybridity has enabled Egyptians for example to give a third of their inheritance by will to a testate relative, a principle entirely derived from Shi‘i jurisprudence.

It is true that the 8 July Declaration has reduced the “state of emergency” duration from six months under 2012 Constitution, to a new limit of only three months, and that “emergency” it cannot be extended beyond that new shorter timeline without the people’s approval in a public referendum. 

These new limits on declaring the state of emergency has been touted by some as a historical achievement for the 8 July Declaration, yet a close reading of the NCHRL Report as summarized above would suggest otherwise.  

Egypt is already ruled by emergency powers, enshrined and sanctioned constitutionally in the articles of the 8 July Declaration. 

Indeed, we may argue that Egypt has already gone beyond the formalities of declaring emergency law, and is effectively now a living example of what Carl Schmitt would have called the “state of exception.” For what need is there to declare emergency when Article 23 of the Declaration grants our Interim President the power to “take all necessary measures for the country’s protection,” precisely the same clause that first featured in the Weimer Constitution and was later reproduced in Egyptian variation up to January 25, 2011?

Lawyers may use pretty names of jurisprudence to grapple with the violent realities of our second transitional period. And they may excel at splitting constitutional hairs while revolutionary turmoil finally gets to the ugly drawing of lines between friend and enemy.  Be that as it may, the fact remains the same: With the 8 July Declaration, the sovereign in Egypt has now openly claimed his power to kill, to pardon, and to declare the exception on all. Such is not just an academic projection of Schmitt on legal events in Egypt—such is our legal reality. 

Those in charge of Egypt today may deem such a “state of exception” all too necessary if we are to protect a country threatened by economic ruin, civil war, and spillover from conflicts at its Eastern and Western borders.  And they may be right. The governance of Egypt could be, at this particular moment, truly in need of the tyrannical powers sanctioned by the 8 July Constitutional Declaration.

If so, then why not just call things by their names, pretty or not?  The rights and freedoms that were fought for by revolutionaries were all forfeited under the 8 July Declaration, and the leading figures of our liberal political elite have all accepted to swear oath and serve under a document that upends the most basic principles of constitutional democracy.

In the end, the matter now boils down to one of two options: Either the 8 July Declaration is amended immediately to address all of the concerns raised in the NCHRL Report, or else our ruling elite should have the courage to admit their agreement to govern the country under a state of exception they collectively swore to uphold, and place state interest above all else for the rest of Egypt’s second transitional period.

[A version of this article appeared in El-Sherouk on 24 July 2013. It was translated by Anny Gaul and Amr Shalakany.]

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