Thursday 21 June 2012

A different perspective on the dissolution of parliament

No one can deny the Egyptian transitional period has been a legal mess from the very beginning. Let's take the constitutional referendum for instance, in which citizens were asked to either approve or reject amendments made to the Constitution of 1971. Was there enough time between the publication of the final version of the amended articles and the referendum so a decent public debate could take place? Could we say that a reasonable person would have had sufficient information and time so as to make an informed decision? Questioning that was often made equal to questioning the intelligence of the Egyptian people which would result in one's branding as 'nokhba' (elite), and thus started the first chapter of The War of Words I wrote about before. 

After the referendum had taken place and a majority of the population had approved the revised articles, a Constitutional Declaration was issued, one which included articles the public had never seen or discussed. Yet that declaration would become the main legal document for the transitional period. At the time some people questioned this, how due to a lack of time and information (mainly also about the consequences of a no-vote) the results may have been manipulated, but many were silenced and branded as "undemocratic" because the ballot boxes had 'spoken'. And so the entire theory of democracy, the whole process was reduced to what the 'ballots' said.

This piece is not meant to focus on the Constitutional Declaration and its many flaws, however I think what is written above clarifies the skewed understanding of democracy some people have. If millions went to vote, many would say this overrules any terrible procedural flaws which may even be enough to strip the whole process of any legitimacy.

This leads us to the recent dissolution of parliament. After the announcement of the decision taken by the Supreme Constitutional Court, media immediately jumped to the conclusion that a "coup d'état" had taken place as the only "democratically" elected body was dissolved. Going back to the facts of the case (AR), it was a lawyer who had asked an administrative court to halt the declaration of the results in a certain district by the Supreme Electoral Commission. In that district two party members had battled over a seat belonging to the one-third of seats to be filled by individuals (as opposed to the two-thirds reserved for electoral lists). The plaintiff argued that several articles in the electoral law were unconstitutional for disregarding the principle of equality stipulated in article 7 of the Constitutional Declaration. The administrative court refused to grant the plaintiff what he wanted on January 9th 2012 so he appealed the decision before the Supreme Administrative Court. In February, the case was halted and referred to the Supreme Constitutional Court so as to judge the constitutionality of the articles in question. 

Egypt's Supreme Constitutional Court

In its decision, the Supreme Constitutional Court mentioned article 38 of the Constitutional Declaration, which stipulates the electoral system would be mixed including one third through individual voting and two thirds through the electoral list system (this article had been amended by the Constitutional Declaration of 25 September 2011 in order to constitutionally solidify the mixed electoral system). The Supreme Constitutional Court, arguing on the basis of the principle of equality and non-discrimination, found that this should mean that while two thirds of parliamentary seats were reserved for electoral party lists, the other third should be reserved for independents not belonging to any political party. 

This, indeed, had been the system which was in place before the political parties, most prominently the Freedom & Justice Party and the Nour Party who together garnered the majority of the seats in parliament, had threatened to boycott the elections unless SCAF amended the electoral law. Article 5 of said law which stipulated that only independents were allowed to run for the seats reserved for individual voting, was cancelled. This meant that parties were allowed to field candidates both on the party lists and through the individual voting system thus limiting the chances of independents. 

At the time, the political parties were ready to disregard considerations of fairness and equality under the pretext that article 5 would allow for the NDP to return to parliament. However, former NDP members could still join parties and run on their lists and didn't need to run for the individual seats, thus rendering that argument (at least partly) invalid. Unless specific NDP members were tried and convicted of certain crimes, one shouldn't simply derogate their rights (and that's assuming all independents are NDP members), at least not in a democracy in which the equal exercise of political rights is essential.

Furthermore, the people should be the ones to decide who they want in parliament. However, the slogans which were used during the constitutional referendum in March, which argued that any criticism of the process was an insult to the intelligence of the people and which glorified the ballots to the extreme, were no where to be heard. Apparently, the same people who were able to vote yes on the constitutional referendum, were unable to vote against the NDP in parliamentary elections..

So the Supreme Constitutional Court found this system to be in disregard of the equal political rights of independents, not belonging to any political party, as they were only allowed to run for one third of the seats while candidates belonging to parties were allowed to run for all seats in parliament including the one third which should have been solely reserved for independents. Based on this, the Court found the articles in question to be unconstitutional and consequently also the entire voting system, since if article 5 had still been in place, the entire outcome of elections would have been different: not only the third reserved for independents, but also the other two thirds, since parties would have probably organized their lists differently had they known they couldn't run candidates in the individual system as well.

Finally, I would like to point out that the same parties and political leaders who insisted on a voting system they knew could be found constitutionally flawed and yet went ahead with elections despite that, would later on enact the political disenfranchisement law. That law was declared unconstitutional as well by the Supreme Constitutional Court for being in blatant disregard of the respect for political rights among other things.

The law meant that parliament could simply vote away fundamental individual rights if the required majority is met (and not through a court decision after due process). Additionally, the law signified that it would be acceptable for parliament to limit the choices of the very same people who voted that parliament in by excluding certain candidates from the race.

It is this way of thinking, in which the outcome of the ballots is the only thing that matters even if the process itself was terribly flawed that is the most dangerous thing for a nascent democracy. I will conclude with this saying by Sallust: "Every bad precedent originated as a justifiable measure": if we are willing to trample the most basic individual rights, to disregard the principles of rule of law in order to reach our goals, then we must be careful for we will become like the very monsters we're claiming to fight. 

Sunday 17 June 2012

The new Constitutional Declaration of 17 June 2012

As the results of Egypt's first 'democratic' presidential elections trickle in, a new constitutional declaration, issued by the Supreme Council of the Armed Forces (SCAF), is made public. Here's a quick summary of the changes/additions made:

  • The new President is to take the oath before the Supreme Constitutional Court instead of parliament which has been dissolved. 
  • SCAF remains fully in charge of everything military-related. Field Marshal Tantawi maintains the duties legally assigned to him as president of SCAF and Minister of Defence.
  • The President has the right to declare war, but only after the approval of SCAF.
  • In case of trouble within the country, the President (again, only with the approval of SCAF) can ask the military to intervene to uphold order and security. The military maintains the competences bestowed upon it by law (and SCAF happens to be the legislator until a parliament is elected, cf. infra)
  • SCAF makes the laws until a new parliament is elected and is practicing its competences.
  • If there is an obstacle in the way of the working of the Constitutional Assembly (which there is), SCAF can appoint one within a week. The only 'specification' mentioned (if it can be called that) is that it has to represent all groups in society. This Assembly will have three months to write a draft constitution after which it is to be presented to the people in a referendum. Within the month following the  approval of the draft constitution in a referendum, the process for new parliamentary elections has to take off.
  • The President of SCAF, the President, the Prime Minister, the President of the High Council of the Judiciary or 20% of the members of the Constitutional Assembly can object to the draft constitution prepared by the Assembly if the draft is not in accordance with "the goals of the revolution, the principles safeguarding the higher interests of the country or the principles which governed the former constitutions of Egypt". By exercising this veto right, they can demand that the Constitutional Assembly review the articles in question, if there is no agreement, either of the parties can present the dispute to the Supreme Constitutional Court, the decision of which will be binding. No absolute deadline is included.
  • The law defines the conditions for eligibility of the candidates for parliamentary elections according to the system the law chooses. (The former article 38 of the Constitutional Declaration of 30 March 2011 which is altered here had the extra sentence "and these [conditions] may include minimum quota for women in both chambers". This sentence is now omitted.)

Addition: when it comes to the powers of the president, the following articles of the March 2011 Constitutional Declaration remain unaltered:

Art. 25
The President of the State is the president of the republic. He shall assert 
the sovereignty of the people, respect for the constitution and sovereignty 
of the law, and defense of national unity and social justice, according to 
means stipulated in this Announcement and the law. 

He shall undertake upon assuming his position responsibilities referred to 
in article 56 of this announcement, except for what is stipulated in 
provisions 1 and 2 of the article.  

Art. 31
The president of the republic will appoint within a maximum of 30 days 
after assuming his duties at least one vice president and determine his 
responsibilities, so that in the case of his stepping down from the position 
of the president, another will be appointed on his place. The conditions 
that must be met by the president will apply, as will rules governing the 
accountability for vice presidents of the republic.  

Art. 56 
The Supreme Council of the Armed Forces deals with the administration of 
the affairs of the country. To achieve this, it has directly the following; 
1- Legislation 
2- Issuing public policy for the state and the public budget and 
ensuring its implementation 
3- Appointing the appointed members of the People's Assembly 
4- Calling the People's Assembly and Shoura Councils to enter into 
normal session, adjourn, or hold an extraordinary session, and 
adjourn said session 
5- The right to promulgate laws or object to them 
6- Represent the state domestically and abroad, sign international 
treaties and agreements, and be considered a part of the legal 
system of the state 
7- Appoint the prime minister and his deputies, ministers and their 
deputies, as well as relieve them from their duties 
8- Appoint civilian and military employees and political 
representatives, as well as dismiss them according to the law; 
accredit foreign political representative 
9- Pardon or reduce punishment, through blanket amnesty is granted 
only by law 
10-Other authorities and responsibilities as determined by the 
president of the republic pursuit to laws and regulations. The Council 
shall have the power to delegate its head or one of its members to 
take on its responsibilities 

Thursday 7 June 2012

Mr. President, you have been warned.

Mr. President,

Whoever you are, whether leading Muslim Brotherhood figure and former president of the Freedom & Justice Party, prof. dr. Mohammed Morsi or former minister of aviation and prime-minister of the Mubarak regime, lieutenant general Ahmed Shafik. You need to know that I, like many others in this country, didn't want you to be the first post-revolution president in my beloved Egypt or at any other time for that matter. 

You are where you are despite the wishes of millions of Egyptians and you need to remember that very well. I imagine that the main force that drove people to choose you was either fear or greater disgust for the other candidate. The reason I'm telling you this is because I want you to know your place, know that we will not tolerate state media attempts to portray you as 'the great national leader' through songs and documentaries glorifying you and your past. After thousands of years, Egyptians are finally ready to abolish the position of Pharaoh in their country. Your former accomplishments and/or academic degrees are not of importance and you will be judged by what you do while in office.

Whoever you are, I would like you to be aware that you represent a lot of what I despise as an Egyptian liberal. You advocate for a big, intrusive government and you clearly disrespect the autonomy and intelligence of the individual citizen. 

Please know that I will not stand by as you try to make decisions for me that I should be making for myself in complete freedom. I will not tolerate censorship on my opinions and you can be sure I will write to criticize you in the harshest manner. No, you are not my father, no you don't deserve any respect because of the title you can now add to your name. I have been following your news, listening to your words and researching your opinions for a while and I have no reason to respect you, you will have to earn that while in office with incredibly hard and thoughtful work. 

Know that I will not tolerate you making decisions for me on the economic, cultural or social front. You will not subsidize sectors simply because your friends are active in them using ordinary Egyptians' tax money. You will not hinder the working of the free market for the sake of those close to you who stand to lose if faced with true competition. It is your job to tackle excessive bureaucracy and to make it as easy as possible for Egyptians to participate in a corruption-free economic environment. Workers' unions and syndicates as well as consumer groups and business owners' associations shall exist independently of government control. No favors to certain groups over others will be permitted. In short, you will not treat this country as your family business!

I don't need you to tell me what to wear, what to say, what to eat. Stay out of my wallet, my fridge and my closet. You will not dictate to me what morality is and how I should live and I won't stand for any abuse of religion and/or manipulation of religious institutions on your part in an attempt to justify your crooked policies. You will treat all Egyptians as equal before the law with no government discrimination based on sex, ethnicity or religion.

Human rights will be zealously defended  against any vicious attacks on them by your security apparatus under whatever pretense. NGOs and human rights organizations shall operate freely in the country when you're president. You will respect the rule of law and don't expect to get away with any exceptions to that in favor of your cronies.You will be responsible for the competences that have been granted to you in the constitution, if you feel you're too old or weak to do your job, don't count on any sympathy, your predecessor tried and didn't get any. Surround yourself with people who know what they're doing and who will advice you with honesty and integrity, again, if you don't, that is solely your failure. 

Finally, I absolutely do not want to hear empty, loud speeches and hollow rhetoric. I want you to be realistic and transparent when talking to the people you work for, the country is facing many difficulties and challenges, your job is to tackle them without adding any to the list yourself. Know that any impediment to the free exercise of our political and civil rights will be faced with vigorous protest and any attempt on your behalf to stand in the way of the Egyptian people's liberty will cost you dearly. 

Mr. President, you have been warned. 

An Egyptian citizen.