2011-14 - Complementary Constitutions

The office of president had been vacant since the overthrow of Hosni Mubarak in February 2011. Muhammad Hussein TANTAWI, head of the Supreme Council of the Armed Forces [SCAF], was Acting head of state.

A referendum was held on 19 March 2011 in which a majority of 77.2% voted for the amendments introduced to Articles 75, 76 and 77 on the president’s qualifications, election and tenure, Article 88 on the judicial supervision of elections, Article 93 on the Determination of the Validity of Parliamentarians' Membership, Article 193 on the appointment of vice presidents, Article 148 on declaring the state of emergency, and Article 179 on counter-terrorism. A new paragraph was introduced to Article 189 in addition to 2 other Articles: Article 189 (Idem) and Article 189 (Idem) A on the Promulgation of a New Constitution.

On 30 March, 2011, SCAF promulgated a Constitutional Declaration organizing the affairs of the State until a new parliament and president are elected. The Declaration consisted of 63 Articles, including those over which the referendum was held. The 1971 Constitution was suspended. Law No. 12 of 2011 on Political Parties was promulgated, allowing the formation of new parties by notification. More than 50 parties were so-formed.

After the dissolution of the parliament’s lower chamber, the People’s Assembly (Majlis Al-Sha’b), in June 2012 and its upper chamber, the Advisory Council (Majilis Al-Shura), in July 2013, the new constitution (promulgated on 18 January 2014 by the interim president[3]) allowed for the creation of a unicameral House of Representatives. The constitution stipulates that the new body must have at least 450 members serving for 5 year terms. Article 102 of the 2014 constitution states that the electoral system may be “individual, list, or mixed”.

Just after the polls closed on 17 June 2012, the ruling Supreme Council of the Armed Forces [SCAF] issued a constitutional declaration, granting itself legislative powers, control of the economy and the right to pick who will draft the next constitution. According to the Complementary Constitutional Declaration, SCAF shall form a new constitution-drafting panel within a week to draft a new constitution within three months. Under the declaration, the new constitution shall be put to referendum within 15 days from being drafted.

Issuing a complementary Constitutional Declaration was necessary to help Egypt transfer to a democratic state through a tough process that has been replete with dangers and challenges. What led SCAF to issue the complementary Constitutional Declaration was the failure to write the constitution before the holding of the presidential vote, the end of the state of emergency and the dissolution of the parliament by a court ruling.

Under the Complementary Constitutional Declaration, the president elect would be sworn in before the General Assembly of the Supreme Constitutional Court. The new president was expected to take oath in front of the Supreme Constitutional Court and will exercise his powers in line with the constitutional declaration until drafting a constitution for the nation. Under the declaration, the constitution was to be drafted in a period of three months, followed by new parliamentary elections.

The incumbent SCAF members were responsible for deciding on all issues related to the armed forces including appointing its leaders and extending the terms in office of the leaders. The head of the SCAF was to act as commander-in-chief of the armed forces and minister of defense until a new constitution is drafted.

SCAF member Major General Mohamed el-Assar and SCAF member Major General Mamdouh Shaheen addressed a joint press conference on Monday 18 June 2012. The elected president will have complete powers with full respect, Assar said. The president will be in charge of appointing the government, the deputy premiers and the ministers including the defense minister, Shaheen said, stressing that the president will also have the power to fire them. When asked about whether the complementary Constitutional Declaration gives the SCAF the mandate to stay in power till the end of the year, Shaheen said the elected president will be handed over full powers, including those of forming the government, noting that SCAF will only, under the new declaration, hold some legislative powers until a new parliament was elected to replace the dissolved one.

On 01 July 2013, following significant protests against the government led by President Mohamed Morsi, the Egyptian military set a 48 hour ultimatum for the government to come to an agreement to settle its differences with the political opposition and answer the demands of the people. On 2 July 2013, the military elaborated its plan should the government not be able to meet the requirements of the ultimatum, which involved removing President Morsi from power, establishing an interim government, drafting a new constitution, and then holding a new presidential election. President Morsi rejected the military's demands, saying his government was constitutional and had been elected by the majority of Egyptians and that he would not be "dictated to," setting the stage for a stand off between President Morsi and the Muslim Brotherhood and the Egyptian Military.

The process to write a new, permanent constitution was derailed twice after liberals and secularists argued that Islamists were trying to dominate the Constituent Assembly tasked with drafting the charter.

An Egyptian court suspended an Islamist-dominated panel that had the job of rewriting the country's constitution. The ruling issued 10 April 2012 followed complaints from lawyers and liberal political parties who say the Islamist majority in the new parliament abused its powers by allocating a majority of the panel's seats to themselves and like-minded individuals. Many liberal and leftist party members had already withdrawn from the 100-member panel in protest of Islamist attempts to dominate the process. Forging a new constitution was a crucial step in Egypt's attempts to form a new government.

On 3 July 2013, Army chief Abdel Fattah al-Sisi announced that despite its best efforts to negotiate a settlement, it had decided to remove President Morsi from power, suspend the new constitution (which had previously been declared to be invalid by the Supreme Constitutional Court), and designate the head of the country's supreme constitutional court (a step outlined under the previous Mubarak-era constitution in the event there was no president), Adli Mansour, as the head of an interim government until such time as the constitution could be amended and new elections held. Al-Sisi made it clear that the Egyptian military had sought to negotiate with the government of President Morsi, but was compelled to answer a call from the people for assistance in resolving the crisis. He further added that no political group would be excluded from the process of returning to constitutional rule. On 4 July 2013, Adli Mansour was officially sworn in as the country's interim leader.

On 14-15 January 2014, Egypt held a constitutional referendum to approve an amended constitution drafted by the 10-member Committee of Experts and finalized by the 50-member Committee of Society. The amended constitution replaced the 2012 constitution promulgated under President MORSI and suspended at the time of his ouster. Voter turnout was 38.6 percent, with 98.1 percent voting in favor of the amended constitution.