Constitutional path remains in limbo leaving power sharing unresolved

In light of the imminent failure of political groups to draft a permanent constitution before a new president is elected, the debate resumes on the best temporary constitutional framework that can regulate power sharing between different branches of the state.

Almost two weeks stand between Egyptians and the kick-off of the presidential poll. In the meantime, the future of the Constituent Assembly tasked with drafting the constitution remains murky. Therefore, the new president will take office before a full-fledged permanent constitution that lays out his exact authorities versus those of the parliament is issued.

To avoid a constitutional ordeal, legal experts suggested that the old constitution be reactivated or that the Supreme Council of the Armed Forces issue a new constitutional declaration detailing the jurisdiction of each branch of government. However, not all political forces seem to agree on the same way out.

Azab Mostafa, an MP representing the Muslim Brotherhood's Freedom and Justice Party, opposed both options.

“We do not need to issue any addition to the constitutional declaration or to resurrect a dead and buried [constitution],” he told Egypt Independent in a phone interview on Wednesday. He believes the original  military-issued constitutional declaration is enough.   "The [original] constitutional declaration has laid out a roadmap for the next president and gave him several powers during the transitional period."

In the meantime, he contended that generals have no right to issue another constitutional declaration independently now that there is a parliament in place. "It can only make suggestions to the parliament," he said. 

In March 2011, the generals issued a 63-article interim constitution known as the constitutional declaration. This text outlines the SCAF’s authorities during the transitional period and stipulates that most of these authorities shall be relayed to the president after he takes office.

Under this declaration, the president shall appoint the ten unelected members of the People’s Assembly; call the People’s Assembly and the Shura Council to enter into normal session; adjourn or hold an extraordinary session, promulgate laws or veto them; represent the state domestically and abroad; sign international treaties and agreements; appoint the prime minister and his/her deputies and ministers and their deputies, as well as relieve them of their duties; appoint civilian and military employees and political representatives, as well as dismiss them according to the law; accredit foreign political representatives and pardon or reduce punishment.

It is quite clear that this constitutional document does not serve the Muslim Brotherhood's long-expressed ambition that the cabinet comes automatically from parties holding a parliamentary majority or that the parliament can move a no-confidence vote against a cabinet appointed by the President.

The same constitutional declaration stood at the heart of Brotherhood-SCAF feuds in recent months. The Brothers have been battling to use their parliamentary weight to sack the military-appointed cabinet and pressure the SCAF to let them lead a coalition government. Yet, the generals were too reluctant to subdue to pressure, always invoking the legal framework of the constitutional declaration that gives the parliament no say over the cabinet.

Nevertheless, Mostafa still prefers to keep the same declaration into effect until the new constitution is drafted. The People's Assembly member seemed too confident that until then no feud will arise between the parliament and the president over the matter of the Cabinet

"Let's not anticipate [feuds]. There will be no problem with the next president regardless of his [political] inclinations," said Mostafa, whose party holds more than 40 percent of seats in parliament.

“If the next president, no matter who he is, respects the people’s will, he will appoint a cabinet that can achieve the goals of the revolution,” he added, in an oblique reference to a cabinet that reflects the make-up of parliament.

The first phase of the presidential race is set for 23 and 24 May. Thirteen candidates are engaging in the contest, which raises the specter of a run-off on 16 and 17 June. The Muslim Brotherhood's Mohamed Morsy is among the contenders. According to most opinion polls, his chances are very slim, which may mean the Brothers need constitutional guarantees that the parliament can have a say over the cabinet before the new president, who may not come from their group, is sworn in. However, Mostafa does not seem concerned by this matter.

“Let the next president come to power in light of the constitutional declaration until we are finished with the constitution,” Mostafa concluded.

Once again, the FJP leader sounded confident that the Constituent Assembly could be elected shortly and hence "we will not await the constitution for long."

“We are in the final stages of drafting a bill for the Constituent Assembly and if the will exists, we can write the constitution in one month,” he said.

Until very recently, FJP and Muslim Brotherhood leaders were confident that the assembly could be formed and the whole constitution could be drafted before the final handover of power to an elected president, set for 30 June, takes place.

As events unfolded, Islamists leaders were proven too optimistic. Following the election of the Constituent Assembly in March, secular forces decided to challenge the assembly's Islamist make-up in court. In April, the Administrative Court dealt a blow to the assembly on grounds of unconstitutionality and eventually it was dissolved. Since then, the debate over a bill laying out new criteria for the assembly's members has heated up. The new assembly has yet to be elected and it remains unclear when exactly it will come into existence.

"This is called political idiocy," Mohamed Naim, a member of the high board of the secular Egyptian Social Democratic Party said about Mostafa's confidence that the constitution could be written in one month. "Writing the constitution in the midst of presidential elections means that there is a desire to pass certain controversial articles that gives the SCAF a privileged position in the political system."

Naim alleged that the Brothers and the military might be allying once again to draft a constitution that benefits their mutual interests, he added.

"If you want to pass a constitution this way, why would you form a Constituent Assembly then? Are you going to elect members who can just rubber-stamp [what you want]?"  asked Naim rhetorically.

He went on, admitting that his party is still confused over whether to back the revival of the 1971 constitution or an additional constitutional declaration. "People at the party are confused and have not come up with a clear position. I personally believe that issuing a complementary constitutional declaration is the most logical option."

According to Mohamed Nour Farahat, a professor of constitutional law at Zagazig University, the March constitutional declaration has three flaws that need to be fixed in another military-issued declaration until a permanent constitution is drafted.

"First the president cannot hold a public referendum over the dissolution of the parliament as was the case in 1971 constitution," he said.

If the Supreme Constitutional Court rules that the parliamentary elections law was unconstitutional and the parliament is consequently dissolved, the president will not be able to dissolve it, explained Farahat, anticipating the SCC ruling on a case contesting the legitimacy of the electoral process on grounds that it failed to ensure party candidates and independents equal opportunities.

"Second, the parliament cannot move to a no-confidence vote against the Cabinet, and third, the president has the absolute authority to veto any bill. He can just put the bill in the drawer and it is dropped forever. However, the old constitution stipulated that if the president vetoes legislation, it goes back to the parliament. If the bill is approved by a two-third majority, it comes into effect," added Farahat.

For the sake of a balance of power, an additional constitutional declaration that imports clauses from the 1971 constitution on these matters is required, concluded Farahat. However, he vehemently opposed the reactivation of the full old constitution for "symbolic" reasons.

"How can you bring back a constitution belonging to a regime that people have revolted against?" he wondered.

For the Salafi Nour Party's leader Ashraf Thabet, there may be a third solution.

"The best of all solutions is to have the Constituent Assembly start by working on the nature of the political system and specify the authorities of the president and the parliament and then issue a constitutional declaration with the assembly's conclusions," said Thabet, deputy speaker of the People's Assembly.

"This will not take time and can be finished before a president is elected," argued Thabet, whose party controls the second largest bloc in parliament after the FJP.

Otherwise, if we start by issuing a constitutional declaration, members of the Constituent Assembly may come up with a different constitutional framework, he added. "This means that the president will rule for a few months according to one framework and then the whole thing will be destroyed," Thabet warned.

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