The Question of Egypt's Constitution

Here is an important piece of news regarding the question of Egypt's Constitution, which has been the subject of controversy recently. Following the recent fall of Egypt's Government, its constitution ceased to be valid. The Supreme Council of the Armed Forces, however, had appointed a committee to amend the former constitution rather than allow it to fall with the fall of the regime and permit the writing of a new constitution when it is timely to do so. Since recent opinion polls have been predominantly against patching up a flawed constitution, the planned referendum on the proposed amendments is now in question. The semi-official daily newspaper al-Ahram has published the following article regarding this question:

Egypt Military considers postponing constitutional referendum, hold presidential elections first 

In response to strong opposition, the Supreme Council of the Armed Forces is considering the postponement of the constitutional referendum, due 19 March, and opting for presidential elections first 

Ahmed Eleiba , Sunday 13 Mar 2011 

Well informed sources have confirmed that there is a strong trend within the Supreme Council of the Armed Forces to hold back the constitutional amendment referendum planned for 19 March, after a number of prominent political voices positioned themselves to vote against the amendments. Commenting on this, a source from the Supreme Council said: “Our eyes are on the opinion of the street and the existing political forces in the interest of the country, and if this is the trend among the people, then there is no problem in delaying the referendum." He went on to add, however, "the Supreme Military Council wants to bring an end to its role in governance as soon as possible.”

A government source, who met with the military council to discuss parliamentary and presidency elections, told Ahram Online that “the council is now leaning, though as yet undecided, towards holding the presidential election first, before parliamentary elections, and that the president would take his oath of office before the head of the supreme constitutional court." The elected president, the source said, would then invite a Constituent Assembly to formulate a new Constitution, which in turn would be put to a referendum ahead of parliamentary elections. The source went on to point out that this position came out of a meeting between the military council and the prime minister.

In a poll conducted by the Egyptian cabinet's Information Support Center on Saturday, 59 per cent said they would reject the amendments. Commenting on this, the military source said that he expected more of these polls to resolve the issue finally in the next few days.

In a similar vein, Judge Hossam Mekawy, head of the South Cairo Court and one of the most prominent representatives of the Judicial Independence trend, told Ahram Online “the military council has one eye on the situation in the street and another on the opinion makers among the political and intellectual elite.”

Mekawy pointed out that a vote on the constitutional amendments introduced by a specially constituted committee would, in fact, prove faulty in legal terms. Such a referendum had no legal basis in the 1971 Constitution, which the military had suspended, but which would be revived in the event the amendments were approved by popular referendum, creating a legally anomalous situation. Furthermore, he pointed out, the amendments do not touch on the seeping presidential powers which the 1971 constitution grants the president, and there is no guarantee that a president elected in accordance with that constitution will want to relinquish such powers.

He continued, “there are more problems for the military council studying the process of holding a referendum and elections as the military council are not covered by any article in the 1971 Constitution. The term ‘suspension of the Constitution’ is a legal anomaly and the problem remains that the military council does not have the right to either call presidential or parliamentary elections or name a committee before the Constitution falls completely.”

Mekawy added that, in fact, "the military council overthrew the president, for there is no constitutional or legally binding text that says the president can hand over his powers to the military, which underlines that he was forced to do so.”