- By Zaid Al-AliZaid Al-Ali is a lawyer specializing in comparative constitutional law and is the author of The Struggle for Iraq's Future., Nathan J. BrownNathan J. Brown is a professor of political science and international affairs at George Washington University and a nonresident senior associate at the Carnegie Endowment for International Peace.
Egypt’s experience with constitutions over the past half-century may reverse Marx’s dictum that everything in history occurs twice, first as tragedy and then as farce. Egypt’s 1971 constitution — memorably described by NGO activist Nasser Amin as "a joke that turned serious" was replaced by a 2012 document written in a process that began with high hopes and ended with bitter recriminations, high-handed maneuvers by the drafters, and an opposition boycott of the final stages of the drafting.
But if Egypt’s current constitution was produced in a tragic process, the ongoing drama may now be taking a series of unexpected turns as the constitution begins to work in ways that are surprising the political forces that dominated its composition. The short-term result is confusing and complicates an already impossibly complicated transition. The longer-term result could be to entice opposition elements back into participating as they come to realize the system does provide opportunities to hem in their adversaries who now sit in power.
Parliamentary elections and the reduced presidency
The current saga commenced in June 2012, when the Supreme Constitutional Court (SCC) dissolved the newly elected lower chamber of parliament. Although some experts argued that the decision was well reasoned, the experience of having the most democratic parliament in living memory dissolved on a technicality was immensely frustrating to many Egyptian voters. It was also highly damaging to the SCC’s own stance of political neutrality and pulled the court into a political dispute: regardless of its decision’s merits, the court was considered in many quarters to be operating as a partisan institution, leading to enthusiastic calls for a purge. But it became a hero to those who saw it as providing a bulwark against Islamist domination. With that debacle in mind, the newly appointed Constituent Assembly set about creating a system of government that would have as one of its objectives that parliament could no longer be dissolved because of flawed electoral laws.
That was the genesis for what eventually became article 177 in the final version of the constitution that was approved in December 2012. That article provides that all electoral bills have to be referred to the SCC before they enter into law. The SCC is required to rule on whether each individual bill is in conformity with the constitution within 45 days. If it fails to issue a decision within that period of time, the bill is considered to have been approved and once in effect, according to article 177, the constitutionality of electoral bills can no longer be challenged.
Shortly after the 2012 constitution entered into force, the Shura Council (parliament’s upper chamber, which the SCC had not dissolved and was designated by the constitution as the acting legislature until new elections could be organized) finalized an electoral bill that was referred to the SCC in accordance with article 177. The circumstances, as always, were politically charged: the opposition National Salvation Front (NSF) had already stated its view that the bill was unfair and that it would boycott the elections if the rules were not amended. The SCC’s decision on February 18 was that the electoral bill violated the constitution on five grounds, including some relatively small technical issues that were easily remediable. However, the court also found that the bill’s proposed distribution of seats within electoral districts was in violation of the constitutional principle of equality, which was a far more serious matter and one that was likely to take far more time to fix.
Districting in Egypt, as in most places, is a highly complex affair: it requires the involvement of several ministries and agencies, with the final decision ultimately belonging to the legislature (currently, the Shura Council). The opposition had already complained that the distribution of seats under the bill was skewed in favor of the countryside and against Egypt’s major cities. The assumption is that the ruling Freedom and Justice Party (FJP) derives more of its support in Egypt’s poorer rural districts and would favor those areas by granting them proportionally more seats in the parliament’s final makeup. The SCC found favor in that argument and ordered the Shura Council to offer a more equitable distribution of seats.
It was only at that point that the first real controversy arose. The question was not whether the bill was in violation of the constitution; no one disputed that the SCC’s decision was final and that it therefore needed to be amended. The problem emerged in that article 177 did not explicitly state what the decision’s legal effect and subsequent process should be. The FJP’s legal representatives immediately stated that the bill would be amended to reflect the SCC’s decision, and that it would be sent to the president for final approval. Certainly the spirit of the constitutional language was to prevent a lengthy procedure. And there was a solid precedent for their claim — when the interim military rulers followed a similar procedure for the presidential election law in 2012, it fixed flaws the SCC found without sending the amended version back to the court for a second review.
But many people (the authors of the current contribution included) complained that this would essentially mean that the Shura Council would be the only judge as to whether it was properly addressing the SCC’s decision. If that process were allowed to stand, it would mean that, if it wanted to, the Shura Council could ignore one or several aspects of the SCC’s decision without the possibility of judicial review (unheard of in any functioning democracy). Under that interpretation, article 177, which was designed to establish a priori review for electoral bills, would have the effect of preventing any form of effective review at all. Nevertheless, the Shura Council proceeded on that basis, quickly amending the bill, which was then referred to the president and signed. The president issued a decree calling for elections to commence in April to take place over several rounds.
Unsurprisingly, more than a dozen challenges were brought before the administrative court on several grounds. The court issued a decision on March 7 in which it cancelled the president’s decree and ordered the Shura Council to refer its second bill back to the SCC. The administrative court offered two reasons for its decision, one that was well publicized and the other that was not.
The first was that the FJP’s interpretation of article 177 was incorrect: in order for the article to make any sense, electoral bills would have to keep being referred back to the SCC until the latter gives a final green light on a particular bill. The administrative court therefore referred the bill back to the SCC for consideration.
The second reason offered by the administrative court was far less publicized but is far wider in its implications. It found that the 2012 constitution establishes a semi-presidential system of government, according to which the president of the republic has to share executive authority with the government. More specifically, the court referred to article 141 according to which all of the president’s powers, aside from a small number that are specifically listed, are to be exercised through the prime minister. Given that the list of exceptions does not include electoral matters, the court found that the president no longer has exclusive authority to call for elections. Current legislation (including the 1956 electoral law that was applied in this case) that granted the president exclusive authorization to call for elections was therefore overridden by the 2012 constitution. Instead, the court found that executive decrees calling for elections had to be first signed by the prime minister, and only then sent to the president for signature. The court also found that this applied to every area that was not explicitly designated
as an exclusive presidential power by the 2012 constitution.
Although this second reasoning passed generally unnoticed by the media and by the wider public, it caught the presidency’s attention within a few hours. When the administrative court’s ruling was issued, the presidency’s legal advisors, the FJP, and the Muslim Brotherhood all immediately stated that it would respect the decision and that they would not appeal. A few hours later however, they overturned their initial reaction and launched an appeal ostensibly after they had the opportunity to review the court’s rationale and after its implications dawned upon them.
If the decision is allowed to stand — and there are already signs that it will — the consequences are hard to predict but are potentially momentous for Egypt. For the first time, the 2012 constitution provides that the president no longer has exclusive authority to form governments and that parliament is now heavily involved in the process, to the extent that in some circumstances parliament may be able to form a government on its own without any involvement from the president. If and when a government is formed that is antagonistic to a sitting president, the prime minister could use the administrative court’s reasoning to block the president from involving himself in a number of areas. This is precisely the mechanism by which many European monarchies became constitutional monarchies, and so therefore it is understandable why the presidency was concerned enough to appeal the administrative court’s decision.
Al-Azhzar and Article 4
As part of a complex bargaining process, the 2012 constitution included a clause (article 4) declaring that al-Azhar would be consulted in matters related to the Islamic sharia. The passive voice was used in the Arabic, making it completely unclear how al-Azhar would be called upon to speak. The surprise already is that the institution seems to be quite willing to voice opinions even when not called upon.
The Brotherhood’s developing orientation toward article 4 is becoming clear: legislation is fundamentally a parliamentary responsibility. The organization and the FJP, make no claim to religious authority whatsoever and proclaim their respect for al-Azhar. But they also seem to feel that it should be up to the parliament to decide how and when to call on al-Azhar’s guidance and advice, and that the parliament’s judgment on legislation should be final. Yet that has not been the institution’s behavior. Instead of being able to invoke al-Azhar’s authority on its own, there are already signs that the Brotherhood is finding the institution a bit of an obstacle. The Brotherhood may use election results in order to claim to speak for the people, but ironically it may find some of its actions obstructed by those constitutionally designated to speak for eternal truths.
This arose first in the matter of a law governing sukuk, the functional equivalent of a bond in sharia-compliant finance. The FJP wishes to enable the Egyptian state to use the device, convinced it will help alleviate intense fiscal pressures. But the Islamist party found that its own judgment on what was appropriate in Islamic legal terms was not automatically accepted. An attempt to legislate the matter before the 2012 constitution was promulgated stalled, partly based on al-Azhar’s objections.
Now the matter has been taken up by the Shura Council. A parliamentary committee tried to invite al-Azhar experts to give their views, but al-Azhar considered that kind of participation beneath the institution’s dignity. Instead it insisted that the law should be formally submitted to its "Body of Senior Scholars" specified in article 4 so that it could conduct a review on its own. Impatient and worried that this would drag things out, the FJP bloc rushed ahead with the sukuk law, leading to howls of protests from some Salafi deputies, embittered al-Azhar officials, and elements of the opposition who claimed that the failure to consult al-Azhar violated the constitution. It is not clear what the outcome will be, but even if it is promulgated, the parliament’s law will operate under a constitutional and religious cloud of doubt, hardly a comfortable position for an Islamist legislative body.
Just as ominously, al-Azhar’s Body of Senior Scholars has been asked by the sheikh to take up a second difficult matter — a United Nations document on violence against women. Earlier this month, the U.N. Commission on the Status of Women concluded its meetings by issuing a lengthy set of recommendations that would likely have gone unnoticed had the Brotherhood not decided to issue a harsh denunciation of the commission’s document. It is not clear why the movement decided to speak so forcefully, though it may have something to do with the fact that the head of the Egyptian National Council of Women was invited to address the meeting and used that opportunity to denounce the country’s constitutional process in a manner utterly at odds with the soothing message of the Egyptian president’s own representative at the same meeting. But the flurry of exchanges had a consequence since al-Azhar will now weigh in on an issue in which neither the president nor the parliament has asked for its views. Indeed, there is no legal question at issue, only a U.N. document. Yet the process could still result in an authoritative statement from al-Azhar at odds with the Brotherhood’s starkly stated position.
The effect of article 4 may be to further the Brotherhood’s long-term goal of promoting Islam in Egyptian society, but the same article has created a series of short-term political headaches for the president and the parliament, both in Brotherhood hands. And the reason is structural: the constitution has led to the creation of an autonomous force that can speak authoritatively for Islam that is neither majoritarian or fully in tune with Islamist political forces.
Problems and Possibilities
The Egyptian constitution is operating in some unanticipated ways in part because of the hastiness of the drafting process. A document rushed through so quickly is bound to pack even more surprises in the years ahead. But more is at issue than Strunk and White could have fixed with their admonitions to "be clear" and "use the active voice." The Egyptian constitution is also afflicted by a cavernous political divide that encourages actors to push their interpretations to the limit and by the failure of the drafting process to coax any underlying set of understandings out of the collection of leading political forces.
Not all surprises are unpleasant for the Muslim Brotherhood. Worried that the movement was about to be declared illegal, its leaders were able to make sudden use of a provision on NGOs to register, even before the implementing legislation (also on the Shura Council’s agenda) is passed.
But the most important silver lining is that the constitution is backfiring on its authors in a way that may offer Egyptian political leaders one more opportunity. The events of the past week have been confrontational and even violent. But by clearly showing that the constitution can work against the Brotherhood’s interests, the document might still entice those who have felt excluded back into the political process. That is not inevitable or even likely, but it may be Egypt’s best hope to get back on track.
Zaid Al-Ali is a senior advisor on constitution building at International IDEA. Follow him on Twitter @zalali. Nathan J. Brown is a professor of po
litical science and international affairs at The George Washington University and a nonresident senior associate for the Carnegie Endowment for International Peace.