December 6, 2013
The 'New' Draft Constitution Part I: A Flawed Beginning
By Yussef Auf
This brings us to the dilemma of Egypt's flawed constitutional process, beginning in 2011. All steps taken so far to amend or write new constitutional documents (whether in March 2011 or December 2012) were done under the control of a dominant political faction, without the participation of other groups. Time and again, this has resulted in the most important political factions in Egypt—namely the Islamists and powers representing civil society—alternately refusing these constitutional measures. This scenario is now repeating itself with the Committee of Fifty’s constitutional process. The result will surely be that Egyptian voters heading to the polls in the upcoming referendum will have their choices limited to either supporting those who created and administered the constitutional process or rejecting them – instead of a choice between accepting or rejecting the constitutional document itself. In other words, the vote on the new constitution will in reality be a vote on either accepting July 3, and everything that has resulted from it, or rejecting it completely. This, as usual, is precisely what diverts the constitutional referendum process from its true purpose: to test the merit of the constitutional document itself.
Despite the fact that some Egyptians reject the Committee of 50 on these grounds, it has finished writing a new constitution that will be voted on in a public referendum. This represents the first and most important legal issue with respect to the committee's work. Article 29 of the constitutional declaration issued by the interim President on July 8 stated that the Committee of 50 would make "amendments" to the suspended 2012 Constitution, yet a reading of the new constitutional document clearly shows that we have been presented with a new constitution composed of 247 articles. This constitutes a major change to the 2012 Constitution; to the extent of writing a new preamble. This makes it clear that this is an entirely new constitution, as, under accepted constitutional practices, a preamble is only written for new constitutions. Article 246 of the new draft constitution also stipulates that "any constitutional texts, or provisions contained within the Constitution issued in 2012" are annulled. This last article is a clear legal statement about what the Committee of 50 has done—not only has it comprehensively amended the 2012 Constitution, but it has annulled it too.
Evaluating this issue from a strictly legal standpoint, the work done by the Committee of 50 is a clear violation of the Constitutional Declaration issued on July 8, 2013. Furthermore, it could lead to a number of legal complications, adding to a list of problems Egypt has experienced in the past three years. These issues have triggered a number of legal controversies in the country that have yet to be resolved.
The impetus for writing a new constitution, as evidenced by a number of statements from members of the Committee of 50, was the need to make a break with the past. This past, which was controlled by the Muslim Brotherhood, included a constitution that had been written during their rule, and the Egyptian people’s revolution of June 30 deserves to be reflected in a new constitution. While this concept was politically acceptable to most people, it was also necessary for it to be legally supported by amending the July 8 constitutional declaration. It is therefore surprising that the President has released an official statement commending the Committee of 50’s work, indicating an implicit approval of the Committee’s work. This gives rise to an important question: what is preventing the President from amending the constitutional declaration to an order to write a new constitution? This would legally correct the situation and close any loopholes that could jeopardize the entire constitutional process.
The second legal issue surrounding the Committee's work relates to Article 29 of the constitutional declaration, which decreed that the Committee of 50 would finish writing the amendments to the constitution "within a maximum of sixty days." However, the committee, which met for the first time on September 8, 2013, announced that its work would last for sixty "working" days. In other words, the sixty days would not include public holidays. This is indeed what happened, and the Committee's work lasted nearly three months. This interpretation of Article 29 conflicts with established legal precedent in Egypt. The Committee should have abided by the period of sixty days. This opens the door to legal controversy and litigation, which could invalidate the work of the Committee as a whole. It should be noted, too, that the sixty-day period was sufficient only if the Committee's work was limited to amending the 2012 Constitution. Since the Committee's work was expanded to amending the constitution in full (as a number of its members had announced from the first day of the Committee's work), this required a new interpretation of the sixty-day period, since the process of drafting a new constitution naturally requires a longer period of time. Thus, the same question arises again: if the majority had intended to write a new constitution from the beginning, why did the constitutional declaration limit the time period to only sixty days? In other words, why wasn't the constitutional declaration amended to increase the period (to three months, for example), so that the Committee's work would not become subject to appeal?
Throughout the transitional period since former president Hosni Mubarak was overthrown, Egypt has entered a spiral of extended legal and constitutional controversies. We would have hoped that the July 3 authority would have learned from the mistakes of the recent past, and that they would have avoided repeating the mistakes of their predecessors in managing the current constitutional process. However, a number of these mistakes have indeed been repeated, and may end up jeopardizing the third transitional period just like the two that preceded it.
Yussef Auf is a fellow with the Rafik Hariri Center for the Middle East. His work focuses on Egyptian constitutional issues, elections, and judicial matters. He has been a judge in Egypt since 2007.