The Egyptian Political System in Disarray
June 19, 2012
The developments in
Egypt over the past few days have thrown what had been a confused set of
institutional arrangements into even greater disarray. The Supreme
Constitutional Court (SCC) declared the parliamentary elections
unconstitutional, and the Supreme Council of the Armed Forces (SCAF) announced
a supplementary constitutional declaration with no apparent public input. On
top of that, the first presidential election since the fall of Mubarak was
To make things a bit more
confusing, statements have been attributed to military leaders that are at
variance with the text of their own declaration. For instance, in a news
conference, SCAF members reportedly promised the incoming president that he
would have the authority to appoint a defense minister, even though that
authority was explicitly removed by the supplementary constitutional
The original constitutional
declaration from March 2011 had all kinds of loopholes and ambiguities to begin
with; the decision to tinker with its provisions this month has widened those
loopholes considerably. Many of the gaps are likely to be filled in political
practice—often unilaterally by the SCAF according to its needs of the moment.
Indeed, the overriding effect of events of the past week has been to contain
and sideline the role of elected institutions in Egypt’s transition.
Only the presidency remains
(assuming the victor is allowed to take office) a democratic structure, and its
authority has been clipped. The current Constituent Assembly was chosen by an
elected parliament and thus also has some democratic legitimacy, but its
existence is threatened, and, even if it survives, it will have to operate
under the watchful eyes of other actors.
What follows is an attempt to
clarify where matters stand today—and where gaps still remain.
The SCAF has
strengthened its position in a number of ways. First, it has ensured that it
will continue its political role after the inauguration of the president. There
will be no return to the barracks at the end of this month, despite the promise
of a symbolic ceremony in which the military leadership will hand power over to
the president. Most important, the SCAF’s legislative role—in abeyance since
the parliament began to meet in January—has been restored.
Second, it has declared
itself completely autonomous from civilian oversight and given itself free rein
in military affairs.
Third, it has granted
itself a new, strong voice in the constitution-writing process.
And finally, the SCAF
has augmented its positions through institutionalizing an internal security
role as well as granting itself a veto over any declaration of war. The first
step is likely to be far more important; the second is striking and unusual but
also likely primarily of symbolic importance for now.
The military’s internal
security role amounts to a standing authorization to the president and the SCAF
to invoke martial law. And the SCAF has coupled its supplementary
constitutional declaration with a provision for a defense council—a preexisting
body—that, while headed by the president, will give the military the dominant
The full extent of the
SCAF’s authority is not always clear. Its executive authority is strong but not
absolute under the emerging system, and it will turn over some significant
authority to the president, especially in administrative and domestic affairs.
It is likely that true clarity will come only in practice. If the past week is
any indication, ambiguities will be resolved in accordance with the SCAF’s
shifting preferences and political will. For instance, its budgetary role is
ambiguous—while the non-military budget is not one of those areas of authority
explicitly retained by the SCAF, the SCAF has asserted a legislative role, and
the budget is, in fact, a law. This would seem to give the SCAF a platform to
claim budgetary authority, but there are no preliminary indications yet of any
inclination to use it.
The SCAF issued the
supplementary constitutional declaration as a decree, not allowing the elected
president or the Egyptian people to have a voice in the changes. That suggests
the generals are not comfortable with the democratic process.
When the new president
is sworn in, he will have considerable authority over domestic politics and administration
on paper. But exercising authority in practice in most areas will likely
require him to negotiate with the SCAF—especially since the SCAF has just
granted the new president the gift of a general to oversee fiscal and
administrative affairs for the presidency. Complicating his life still further,
the president might also have to negotiate with other important actors, such as
the security services.
The president will
appoint the cabinet with the exception of the minister of defense. While the
position of minister of defense is reserved for the current head of the SCAF,
there are no apparent legal or constitutional restrictions on the new president’s
choice for all other positions. In the absence of a parliament, the president
will be able to make these appointments without any parliamentary oversight—giving
him an even freer hand on paper.
But there will be
significant political pressures connected with cabinet formation. For instance,
in recent years the minister of justice has generally been a judge and the
minister of interior has long come out of the security apparatus. It might be
possible to violate the first tradition, though it might seem wiser for the new
president to placate what has been a fairly active and somewhat aggrieved
judiciary. It would be extremely daring and politically risky to violate the
second tradition by appointing a civilian interior minister, a step many
political reformers have insisted is necessary to begin the overhaul of the
abusive and unaccountable state security apparatus.
More generally, with the
SCAF always lurking in the background, the president is unlikely to feel free
to select a cabinet of his own choosing. The cabinet and individual ministers
have considerable authority to make policy as well as issue regulations and
decisions. Without any parliamentary oversight or accountability, the only way
to challenge any act by a minister or the cabinet may be to file a suit in the
administrative courts (which act with varying speed) or to appeal to the SCAF
to issue legislation reversing the action.
In the past, the
president’s assent has been necessary for parliamentary legislation to become
law. That requirement seems to carry over to the new system, but there is some
tension in the various provisions on this issue. In one clause, the SCAF seems
to have grabbed all legislative authority for itself, but another requires
presidential assent for legislation and a third allows the cabinet to draft
legislation (whether to forward to the SCAF or the president for further consideration
is unclear). In comments to the press, SCAF members did suggest that the
generals themselves would be forwarding legislation to the president for
Egypt has been dominated
by the presidency for so long that there are a whole myriad of structures,
commissions, and procedures that run through the presidency and give the
president a strong potential role. These are still part of the legal order.
The term of the
presidency is fixed in the March 2011 constitutional declaration at four years (renewable
once). Logically, if the president is taking office under a temporary
constitution, it might be appropriate to hold new elections once a new
constitution is in place. The SCAF has hinted that the new president will only
be a transitional
figure. But such an arrangement is hardly inevitable, and if that
was what the SCAF intended last year, it is not clear why it allowed a
four-year term limit in the text of the constitutional declaration.
The only plausible
explanation is that the SCAF changed its mind—or is now reserving the right to
change its mind depending on what it thinks of the president. There is no clear
way of resolving the issue. The permanent constitution could address it, though
the SCAF’s newfound assertiveness may lead it to insist on its own answer.
Before the parliament
was found unconstitutional, it had elected a Constituent Assembly as required
by the constitutional declaration. Actually, it had done so twice—the first
body was struck down in March by an administrative court and a new one was
formed just days before the presidential election. The parliament had also
passed a law governing formation of the body, but that law was never approved
by the SCAF.
The second assembly has
met once. In an environment in which judges have played an active role, the
body took the astute step of electing the most senior judge in the country (one
reputed to have some Islamist inclinations) as its president. Yet its days could
well be numbered.
Previously, the assembly
was expected to submit its work directly to the people with no other review or
oversight stipulated. Now a variety of actors—the president, the head of the
SCAF, the prime minister, the Supreme
Council of Judicial Organizations, or one-fifth of the members of
the Constituent Assembly itself—can ask for any provision of the assembly’s
draft constitution to be reconsidered before submission to the people. If the
Constituent Assembly does not change its mind, the objecting party can resort
to the Supreme Constitutional Court for final and binding determination of
whether the challenged provision is consistent with the goals of the
revolution, the higher interests of the country, or the basic principles of
past constitutions. In an earlier
piece, I used the phrase “constitutional obscenity” to refer to the
extreme vagueness of these standards, the absurdity of holding a new
constitution accountable to older ones, and the assignment of final and
absolute interpretive authority to an unelected judicial body formed under the
Now the SCAF has taken
the audacious step of allowing itself to form a new Constituent Assembly. If
the operations of the current assembly are obstructed and the body is unable to
fulfill its duties, the SCAF will form a new assembly within one week—all on
its own. In such a case, the new body will have only three months to complete
its work, rather than the six months that the current assembly has. This is a
period of time that would virtually bar serious public debate.
An obstacle in the path
of the current assembly is possible and even likely to emerge. A lawsuit has
been filed against the sitting assembly on grounds that members of the
parliament voted some of their own members into the body. Although that might
sound normal and innocuous, the first assembly was disbanded on the basis of a
In all these ways, the
constitutional process has been modified in order to make it more accountable
to the institutions and principles of the old order than to the Egyptian
I have analyzed the
argument over whether the parliament has been dissolved in an earlier
piece. While those who claim the court has no right to dissolve the
parliament do have plausible (if hardly overwhelming) arguments, they have
virtually no political chance of success.
The justices of the
Constitutional Court gave conflicting signals about how their ruling on the parliamentary
election law applies to the upper house of the Egyptian parliament, and that
body appears to still be viable. But a legal challenge has been entered against
it, so its future is still uncertain.
constitutional declaration states that the next set of parliamentary elections
will take place one month after the new constitution is approved, effectively
suspending parliament until after the transition is complete and oddly
suggesting that the current temporary document rather than the final
constitution defines when elections are to be held. The amended declaration
also allows for a new law to be promulgated now (presumably by the SCAF with
presidential assent) to govern those elections, again extending the legal
effects of the SCAF’s authority into the operation of the new constitutional
The Supreme Constitutional Court
Constitutional Court has been placed in a powerful position as guardian, final
arbiter, and effective definer of the vaguely defined principles the new
constitution must embody.
The justices of the SCC
have been referred to in press accounts as “Mubarak appointees,” something that
is accurate but sometimes misleading. There is no doubt that the current court
was fully formed under the old regime, but its autonomy varied considerably
over time and it was never a direct creature of the president. It is true that
its reputation and record for independent action has declined over the past
decade. I generally share Tamir
Moustafa’s views that the court has become politically weaker in
The current composition
of the court is a bit mixed. The SCC chief justice was a direct presidential
appointee, although he actually recused himself from the case concerning the
disputed candidacy of Ahmed Shafiq, the last prime minister appointed by Hosni
Mubarak. He thus can hardly be held responsible for the ruling that allowed
Shafiq to run for president despite former ties to the Mubarak regime. The
other justices were generally nominated by the court itself and then approved
by the president. That has made for some variety and independence in the past.
My general impression is that the current court is actually a very diverse
The law governing the
SCC was changed by the SCAF last summer to allow the court to select its own
president from among the three most senior current members. The effect was to
insulate the SCC from all other actors though also perhaps to inculcate however
subtly a sense that the SCAF (and not the parliament) was the best protector of
the judiciary. The new chief justice—a judge on the SCC since 1991—will take
over next month.
What justices on the SCC
tend to share, despite diverse orientations, is a strong sense of mission to
the law and abstract constitutional principles. In a sense, their attitude is
analogous to that of the SCAF, though the comparison might offend some of them:
senior judges, like senior generals, see themselves as guardians of the public
interest and the interests of the state, and therefore as above politics,
democratic mechanisms, and accountability. The parliament that was seated in
January had offended the SCC’s sensibilities quite deeply by criticizing the
chief justice and by proposing legislation that would have deprived the court
of some of its authority and autonomy.
It is not quite clear how the
court will interpret the vague principles placed in its care for the
constitution-drafting process. While many Egyptian judicial authorities work to
hew closely to formalistic interpretations of legal texts, the SCC, given its
mandate, has shown some comfort departing from narrow textualism and
undertaking expansive readings of general constitutional principles. However,
the task here is so novel that there is no sure indication of how it would use
its authority if called upon.
Brown is a non-resident senior associate in the Middle East Program of the
Carnegie Endowment for International Peace, and a professor of political
science and international affairs at George Washington University.
From Guide to Egypt’s
Transition, Carnegie Endowment for International Peace: http://egyptelections.carnegieendowment.org/2012/06/19/the-egyptian-political-system-in-disarray