The big news coming out of Egypt today is that secular liberals have walked out of  the latest meeting of the Constituent Assembly (CA). This comes after a similar boycott of the last meeting of the CA in March 2012, and thus cast serious doubt on the ability of the Egyptian parliament as it is currently configured to write a new constitution.

Moreover, the Supreme Constitutional Court of Egypt (SCC) is set to meet this Thursday to rule on two crucial questions: whether the law banning former Mubarak-era Prime Minister Ahmad Shafiq from running is constitutional, and whether the Parliamentary elections of November 2011 and January 2012 were constitutional. This could lead to a situation where Parliament is dissolved, or a disqualification of one of the final two Presidential candidates in Egypt, or both. And all of this just two days before the Presidential elections are scheduled to take place, on June 16th and 17th (i.e. the beginning of next week).

To help make sense of today’s events, I want to take a quick look at the history of the Constitutional Drafting process since the ouster of Hosni Mubarak. As I argued in my introductory post, there are three “traditional” political institutions influencing the trajectory of the democratic transition in Egypt; the Army, the Parliament (which is largely representative of the interests of the Muslim Brotherhood, who won a majority of representatives in the Parliamentary elections), and the Judiciary. Each of these institutions has a long and complicated history in Egypt, stretching back at least 150 years. And each is trying, with varying degrees of success, to assert itself in the relative power vacuum of the present.

A Brief History of Egypt’s Constitutional Process

On February 11, 2011, after 18 days of massive demonstrations throughout the country which ranged from peaceful gatherings to street warfare, Hosni Mubarak stepped down from his 30-year reign as President of Egypt. Mubarak had ruled under the 1971 Constitution written by previous President Anwar Sadat. The system of government set forth was a multi-party “semi-presidential” system; with a popularly-elected President as head of state with the responsibility of nominating cabinet ministers, and a Prime Minister from the People’s Assembly with the authority to call a vote of no-confidence and dissolve the cabinet.

Although this kind of system is generally designed to limit the authority of the President, the particularities of the Egyptian semi-presidential system in the ’71 constitution, and the actual practice of governing Presidents under the constitution, meant that the President had broad authority. Art. 141 gives the President the ability to appoint the Prime Minister and remove him. Art. 148 gives the President the ability to execute emergency laws which extend police power,  suspend constitutional rights, and legalize censorship. A 1980 amendment by Sadat established the Shura Council as the “upper house” of the now-bicameral Egyptian legislature, with two-thirds elected by popular vote and one-third appointed by the President.

On February 13, 2011, two days after Mubarak stepped down from office, the Supreme Council of the Armed Forces (SCAF) issued a constitutional declaration with the following 9 points:

1) The provisions of the previous constitution are dissolved

2) The SCAF will manage the affairs of the country temporarily, for a period of six months or until the end of the elections of the People’s Assembly, the Shura Council, and the President

3) The President of the SCAF will represent Egypt to all parties at home and abroad

4) The People’s Assembly and the Shura Council will be re-instituted

5) The SCAF will issue decrees during the transitional period

6) A Committee to Amend some of the articles of the previous constitution will be formed, and the results of this committee will be offered to a popular referendum from the people of Egypt

7) The Minister of Defense, Ahmad Shafiq, has a mandate to continue his work until the formation of a new government

8) There will be elections for the People’s Assmebly, the Shura Council, and the President

9) The state is committed to the implementation of international treaties and conventions to which it is a party

As stipulated in point 6, the Committee to Amend some of the articles of the previous constitution was created. Tarek el-Bishry was appointed by the SCAF as its President. Also included were four of the top legal minds in Egypt and three “consultants” from the Egyptian judiciary. The Committee amended 9 articles of the previous constitution and cancelled article 179 (which extended Presidential powers to “fight terrorism”).

The main thrust of the first 8 amendments defined the Presidency (streamlining the nomination process for President and establishing the Presidential Elections Committee to oversee the elections), defined the Parliament (streamlining the nomination and election process and giving it the final say in ratifying treaties), and placed severe limits on the ability for the President to declare a state of emergency.

The ninth amendment was to article 189, which previously defined how the constitution was to be amended. A rider was inserted that would define the process of writing a new constitution:

The President, having achieved the agreement of the cabinet and half of the members of the People’s Assembly and the Shura Council, may request a new constitution. This process will be governed by a Constituent Assembly which is to consist of 100 members elected by a majority of both houses in a joint meeting to prepare a draft of the constitution in no more than six months after its formation. 15 days before it is announced to the people, the plans for the constitution will be referred to the President for consultation.

On February 26, 2011, these amendments were announced to the Egyptian people. On March 19, 2011, a nation-wide up-or-down vote was held on the amendments. It passed with 77% of the vote. On March 23, 2011, the SCAF issued the Constitutional Declaration, which was based on the previous constitution and included the new amendments.

As parliamentary elections approached, a problem emerged between the entrenched and newly-established political parties, and the nominees for parliament without a party affiliation. The original constitution allocated half of the seats in the People’s Assembly (the lower house of Parliament) to candidates from the list of political parties, and half of the seats to independent candidates. Political bosses complained that this hurt the political parties. So, after a meeting between party bosses and SCAF Vice-President Sami Anan, an official constitutional declaration was issued by the SCAF on September 25, 2011, which reserved one-third of the seats of the People’s Assembly for independent candidates.

However, that declaration did not stop the Muslim Brotherhood–which is a broad-based organization that operates in mosques, provides social services, and represents itself politically through its “Freedom and Justice” party–from fielding candidates independently.

Because the Egyptian judiciary has a right to “prior review” (i.e. reviewing laws before they go in effect, as opposed to subsequently) a “Body of Commissioners” has recently been formed by the judiciary to study the legality of the Presidential and Parliamentary elections, and to make recommendations to the court for its two big rulings this Thursday. The results of the report were released last Friday. The report said that the court could either request a re-run of the elections for the one-third of Parliament that was supposed to be independent, or it could dissolve Parliament entirely and re-run all of the elections.

What’s at Stake on June 14th

The results of the court’s decision will display a great deal about the character and independence of the Egyptian judiciary. This independence has been called into question in fiery speeches by Muslim Brotherhood MPs and in massive protests on the street, ever since the controversial decision to acquit the sons of Hosni Mubarak and six of his top lieutenants two weekends ago. But the accusations seemed to cause the President of the judge’s club, Ahmad el-Zend, to become defensive when he came out on national TV and heavily condemned the Muslim Brotherhood and the Parliament in a brashly-partisan move.

If the SCC overturns the political isolation law passed by Parliament and allow Ahmad Shafiq to run (see my discussion of this issue here), they will be seen as lackeys for the SCAF. But if they disqualify Shafiq, they will be directly benefitting their mortal enemies, the Muslim Brotherhood. (I also don’t see how elections could continue on schedule if Shafiq is disqualified). They could always get revenge on the Brotherhood by ruling to dissolve Parliament entirely, but this will surely lead to massive protests on the streets.