The appendix to last year's interim Constitutional Declaration issued by SCAF ensures the generals remain in control, writes Gamal Essam El-Din
Days before the announcement of Egypt's first freely elected president the Supreme Council of the Armed Forces (SCAF) has given itself the final say over swathes of domestic and foreign policy.
An appendix to last year's interim Constitutional Declaration, published in the official gazette on 17 June, amends nine articles of the original 30 March, 2011 text, to take effect immediately.
Changes to Article 30 mean the newly elected president will be sworn in before the Supreme Constitutional Court's (SCC) general assembly rather than the People's Assembly, which the SCC dissolved on 14 June.
Changes to Article 53 give SCAF control of all issues relating to the Armed Forces, including appointments and decisions over extending current appointments. They make SCAF head, Field Marshal Hussein Tantawi, commander-in-chief until a new constitution is drafted, and make any declaration of war by the president conditional on SCAF approval.
Changes to Article 56 see SCAF assuming parliamentary prerogatives set out in sub-article 1 of Article 56 of the 30 March 2011 Constitutional Declaration, at least until a new parliament is elected. These include the authority to issue legislation and approve government budgets.
Article 60 has been amended to allow SCAF to appoint a new constituent assembly to draft a constitution should the existing assembly fail to complete its work on time for whatever reason. The changes also allow the president, the head of SCAF, the prime minister, the Supreme Council of the Judiciary or a fifth of constituent assembly members to file objections against any constitutional article which they think is in conflict with "the goals and principles of the revolution" or with principles agreed in earlier constitutions. They can demand the assembly revise any article within 15 days. Should the constituent assembly refuse the article, the article will be referred to the Supreme Constitutional Court (SCC) which will furnish a judgement within seven days. The SCC's decision, published in the official gazette within three days of being delivered, will be final.
The Muslim Brotherhood immediately attacked the appendix. It called on Egyptians from across the political spectrum to take to the streets to express their rejection of changes which the group believes will render its presidential candidate, Mohamed Mursi, a lame duck.
Brotherhood leaders also refused to accept the Supreme Constitutional Court ruling dissolving the People's Assembly and calling for new elections. Brotherhood leaders said the SCC decision to annul parliamentary election results on the grounds that the election regulations, for which the Brotherhood pushed strenuously, were biased against independent candidates, constituted an attack against the will of the people.
SCAF spokesman tried hard to contain reactions to the appendix. In a two-hour press conference on Monday SCAF member Major General Mohamed El-Assar said the military was committed to seeing a civilian president sworn in by the end of the month but that as the guarantor of national stability it was determined that the constitution should ensure Egypt's emergence as a civil state. "We vow that a new constitution and a new parliament will be created within a year," said El-Assar.
Egypt's incoming president, he added, would retain the power to appoint ministers and veto legislation regardless of the legislative authority SCAF has assumed.
El-Assar also suggested the constituent assembly formed by the now dissolved People's Assembly should proceed with its work, though should it face any judicial challenge that is upheld it will be disbanded. The assembly held a procedural meeting on Monday which was boycotted by more than a third of its members. The mainly secularists charge that the assembly is dominated by Islamists and cannot, therefore, produce a constitution suited to a civil state.
If the constituent assembly is disbanded, El-Assar said SCAF will oversee the selection of a replacement.
El-Assar asked the public to "trust the Armed Forces for we do not seek power".
"The People's Assembly was freely elected and it was one of the greatest achievements of the revolution but no one can refuse the SCC order. We must all respect the rule of law and uphold the sovereignty of the judiciary," said El-Assar. "The army itself regrets that parliament was dissolved."
El-Assar went on to defend the justice minister's decree allowing the military to detain civilians, which many believe is tantamount to the declaration of martial law.
"Egypt is a country with 90 million people and most of its citizens are suffering from economic hardship," he said. "This complicates the transition of democracy though we are determined Egypt will be a democratic state from the beginning of July. Its freely elected president will then have to face the formidable challenges ahead."
SCAF legal advisor Mamdouh Shahin argues that under the changes introduced by the appendix "neither the newly elected president nor SCAF will have a free hand in issuing legislation“ê¶ both will have to reach an agreement".
"SCAF assumed legislative power after parliament was dissolved because the president of the republic cannot hold executive and legislative powers simultaneously. The situation will end after a new parliament is elected."
According to Shahin, the newly elected president will appoint the prime minister and cabinet ministers, including the minister of defence. He added that a new constitution should be completed within four months and a new parliament in place by the end of the year.
Constitutional law expert Ahmed Kamal Abul-Magd insists that "the appendix should be considered a correction in as much as it means a constitution will be in place ahead of parliamentary elections".
Sameh Ashour, the Nasserist chairman of the Bar Association, argued that "the appendix seems designed to prevent the new president gaining sweeping powers that could be used to serve partisan political ends in the absence of a constitution".
Nasserist presidential candidate Hamdeen Sabahi, who came third in the first round poll, believes that any nuanced reading of the appendix misses the point. It is clear, he said, that the military is determined to hang onto power.