The End of 'One Hand': The Egyptian Constitutional Declaration and the Rift Between the 'People' and the Supreme Council of the Armed Forces
Harvard University, Law School, Students ; Northwestern University - School of Law
April 8, 2012
Yearbook of Islamic and Middle Eastern Law, Vol. 16, p. 43, 2010-2011
Northwestern Public Law Research Paper No. 12-10
By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution’s antagonist. “The army and the people are one” was a common slogan in the early days following Mubarak’s ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued to escalate, leading to the attack by military police on female protesters in Tahrir Square in mid-December and the now-famous video of officers ripping off the garments of a young woman on the ground and then proceeding to beat her.
SCAF’s assertions of political power angered Egyptians in November when it issued “supra-constitutional principles” that were intended to control the drafting of a new constitution, a task clearly in the jurisdiction of the new parliament according to the March 30 constitutional declaration, a document discussed below. These proposed principles included the provision that only SCAF would have access to the details of the military’s budget and that all legislation concerning the military would have to be approved by SCAF; the parliament would only control the total sum allocated to the military. The principles also gave SCAF the power to veto any provision of the new constitution that “contradicts the basic tenets of Egyptian state and society and the general rights and freedoms confirmed in successive Egyptian constitutions.” This document of supra-constitutional principles, along with a series of subsequent statements by SCAF, also indicated SCAF’s attempt to control the selection of the constitution’s drafters, in contradiction to the constitutional declaration.
While these events marked key moments in SCAF’s attempts to control the political process, SCAF had laid the groundwork for such efforts much earlier in the post-revolutionary period. The crucial turning point that showed that SCAF was a self-interested participant, willing to ignore the democratic choices of the Egyptian people if necessary to advance its own interests, came in the form of the constitutional declaration issued by SCAF on March 30, following the constitutional referendum of March 19. At that time, SCAF’s actions drew little attention by foreign observers and even slight response within Egypt, in part due to the fact that it required a careful reading of the lengthy constitutional declaration in order to see exactly what SCAF had accomplished. While at that time SCAF surely had not formulated a full plan for the subsequent transitional period, it was clearly already anticipating that it would want to exercise far more control, and for a far greater time, than it had envisioned prior to the constitutional referendum.
This essay examines the constitutional referendum and then the constitutional declaration with the goal of answering several questions. First, what was the constitutional referendum and what were SCAF’s goals in drafting it and submitting it to the public for a vote? Second, why did SCAF subsequently determine that the referendum was not adequate and how did it seek to modify and supplement the referendum to produce the declaration? Third, how did SCAF embed in the declaration the basis for its own later assertion of greater power over the political and constitutional process? While the declaration was praised for replacing the 1971 constitution, a goal of the referendum’s opponents, and for providing more clarity about the transitional process, the declaration was also the first clear expression by SCAF of its long-term ambitions, even as it was not until later in 2011 that the significance of that expression became vividly clear.
Number of Pages in PDF File: 11
Keywords: Egypt, constitution, constitutional declaration, revolution, Supreme Council of the Armed Forces
JEL Classification: K10, K19, K33, K39
Date posted: April 10, 2012 ; Last revised: March 7, 2013
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