Friday,20 July, 2018
Current issue | Issue 1127, 20 - 26 December 2012
Friday,20 July, 2018
Issue 1127, 20 - 26 December 2012

Ahram Weekly

A winding road

Gamal Essam El-Din investigates the Machiavellian turns of the path leading to Egypt’s first post-25 January Revolution constitution

Al-Ahram Weekly

On 15 December, after more than a year and a half of political wrangling, Egyptians went to the polls in the first stage of a two-part referendum on the new draft constitution.

The text on which they are being asked to vote is the result of a tortuous process that began on 13 February, 2011, two days after Hosni Mubarak was forced from office, when the Supreme Council of the Armed Forces (SCAF) — the military rulers that took over after Mubarak — issued a decree that led to the abrogation of the 1971 constitution and the dissolution of the People’s Assembly and Shura Council.

By the end of February a panel composed of constitutional law professors and legal experts recommended that SCAF  issue a temporary constitutional declaration to regulate political life until parliamentary elections could be held and a post-revolution constitution promulgated.

On 19 March 2011, of around 18 million who turned out to vote, 77 per cent said yes to a raft of constitutional amendments the most important of which stated that a constituent assembly be formed to draft a new constitution.

On 30 March SCAF issued a 63-article constitutional declaration, Article 60 of which stated that elected members of the People’s Assembly and Shura Council must meet within six months to select a 100-member constituent assembly which would draft a new constitution. The article was opposed by secular forces, an intimation of the polarisation between Islamists and supporters of a civil state that has since rent the body politic.

Secular forces — mainly liberal, leftist and nationalist political parties — organised several mass demonstrations to press for a constitution to be in place ahead of parliamentary elections. Islamists mobilised their supporters in rival protests in Cairo and other cities to oppose the drafting of the constitution before elections. The Muslim Brotherhood — confident that it would form a majority in the first post-revolution parliament, said it “would never accept violating Article 60 which states that parliamentary elections must be held first”. Together with its Salafi allies it accused those opposed to the military’s edict of trying to destabilise the state.

After a summer of rival demonstrations the Islamists were able to impose their agenda. Parliamentary elections were held and the Islamists found themselves in the majority. They had the upper hand in selecting just who the 100 people were that would write the constitution. 

On 24 March 2012 members of the newly-elected People’s Assembly and Shura Council selected the constituent assembly charged with drafting the constitution. A little over two weeks later, on 10 April, Cairo’s Administrative Court ruled that the constituent assembly must be disbanded and re-formed in a manner more representative of political forces.

On 12 June a new constituent assembly was named. Once again it was dominated by Islamists. Secular political forces accused the Brotherhood and Salafis of once again hijacking the constitution-drafting process. Several petitions were filed with the Administrative Court asking for the new constituent assembly to be dissolved.

On 14 June the Supreme Constitutional Court (SCC) ruled that the parliamentary election law regulating elections to the People’s Assembly and Shura Council was itself unconstitutional. As a result the People’s Assembly was dissolved. On 17 June SCAF issued a new constitutional declaration giving itself the right to appoint a new constituent assembly should the one selected by the now dissolved People’s Assembly fail to complete its task.

On 30 June the Muslim Brotherhood’s candidate Mohamed Morsi was declared the winner of presidential election. After just eight days in office Morsi asked the dissolved People’s Assembly to reconvene in an open challenge to the SCC’s ruling. The assembly met on 10 July for 15 minutes during which it passed a law immunising the 12 June constituent assembly from any administrative court ruling.

On 11 August Morsi issued yet another constitutional declaration giving himself the power to appoint a new constitution-drafting assembly should the current one be dissolved.

On 23 October, following five months of judicial disputes, Cairo’s Administrative Court decided to refer the law giving the 12 June constituent assembly immunity to dissolution to the SCC.

By 18 November the bulk of secular members of the constituent assembly had withdrawn, accusing Islamists of forcing through a constitution that would transform Egypt into an Islamist state.

On 22 November Morsi issued a sweeping decree which placed the constituent assembly beyond judicial review. A week later the now exclusively Islamist assembly opted to finalise its draft in just two days. On 30 November, following a marathon 18-hour voting session the fast tracked, 236-article constitution was passed. The following day a copy was handed to Morsi who immediately announced it would be put to referendum on 15 December.

On 2 December the SCC was besieged by Morsi’s Islamist supporters who prevented judges from entering or leaving Egypt’s highest court, thus preventing it from considering a verdict on the validity of the Islamist-dominated 12 June constituent assembly or the Shura Council. The court postponed its sessions with no further notice, opening the door for the referendum to go ahead.

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