“Secretive” Constitutional Declaration "

Egypt has witnessed a new Constitutional Declaration when SCAF issued a “Secretive” Constitutional Declaration on the 25th of February 2011. They said it is complementary to the previous Declarations issued to regulate steering the administration of the Republic until the people of Egypt elect a new Parliament and a new president.
This declaration consisted of one provision dealing with the electoral process and it addressed the allocation of seats in both houses of the parliament ( the people’s assembly and the Shoura Council). Under this provision, two thirds of seats of the People's Assembly and the Shura Council would be filled under the proportional list system and one third of seats will filled through the individual system.
SCAF issued the declaration and published it in the official gazette in isolation from all political forces in the country, which eventually lead to widespread condemnation from some of them as stated in Elmasry Elyoum newspaper on 28 September 2011 that “They (referring to SCAF) added that the decision to restrict publication of the declaration to the Official Gazette reflects a state of confusion within the military council. “They cannot just publish it without putting it up for a political dialogue,” said Mohamed al-Qassas of the Islamist Egyptian Trend Party.
While on the other hand, General Mamdouh Shaheen Assistant Minister of Defence for Legal Affairs and Member of SCAF stated to the Ahram Gate on the 30th of September that there was a need for this declaration because the previous declarations do not allow a change in the proportions allocated between those elected on the list and those elected as individuals. Moreover, he added that SCAF has an absolute power to issue constitutional declarations during the transitional period.
Now, Egypt had so far three constitutional declarations issued since the revolt of January 2011. The first Declaration was issued directly on 13th of February 2011 after the announcement that Mubarak had given up power and delegated SCAF to take over running the country until a new government is formed, the second Declaration was issued on the 31st of March 2011 after a public referendum that approved amendments to the 1971 Constitution which was already put on hold at the time. Hence, this dilemma presents several questions, whether the second constitution was legal or not? Is it true that SCAF has absolute power to issue declarations during the transitional period? What are the consequences of all these changes on the political, legal and economic situation of the country?
While seeking answers to these questions, Professor Sherine Elghatit from the Political Science Department at AUC stated that the main characteristic of a government in transition that it should only confine itself to the role of a care taker government. Therefore, it works in accordance with the existing laws and regulations because there are no legitimate legislative institutions in place. However, in the case of Egypt, the Consecutive Constitutional Declarations failed to set a time frame to the transitional period. Furthermore, it has granted SCAF the absolute power to issue decrees of laws without any restrictions to the types of legislation they can issue or with regard to their substance. In fact, this is in contradiction with the revolutionary legitimacy that requires confining the promulgation of laws to those that represent the will of the revolutionary people. This further entails that these laws are those concerned with the upcoming elections only, like the electoral and parties laws.”
She added, “Concerning the consecutive Constitutional Declarations, the Egyptian people were dragged to the referendum without real use or benefit to the democratic process. Furthermore, the legitimacy of the Second Constitutional Declaration is subject to doubts because it has altered the will of the people. ”
As for the consequences of these measures on the situation of Egypt, she stated “Granting SCAF absolute power to issue legislation without any restrictions leads to a worrisome legal and political situation. It opens the door to amend any of the existing legislation in education, health, personal Status, commerce, tourism and others, which freezes the flow of investments into Egypt, because the foreign and local investors are uncertain to what may take place between one day and another. Hence, unfortunately the poor and not the rich people will be the most affected by that situation. They will lose their jobs and they won’t find a substitute because no new jobs are created in the absence of the flow of investments. Furthermore, if the legal uncertainty phase is prolonged we will witness further deterioration and more investments that will close down and pull out of the Egyptian market.”