Dr. Badawi, during the transitional phase, the Constitutional Court played the winning card in the management of the democratic change process in the last year; perhaps its recent most important ruling was the unconstitutionality of the Political Isolation Law— which bans any person who served within Mubarak’s regime in the last ten years—and the law regulating the elections of the People’s Assembly—the lower house of Egypt’s two-tier parliament and almost entirely elected by the public. What do you think is the role of the Supreme Constitutional Court?

Dr. Badawi, during the transitional phase, the Constitutional Court played the winning card in the management of the democratic change process in the last year; perhaps its recent most important ruling was the unconstitutionality of the Political Isolation Law— which bans any person who served within Mubarak’s regime in the last ten years—and the law regulating the elections of the People’s Assembly—the lower house of Egypt’s two-tier parliament and almost entirely elected by the public. What do you think is the role of the Supreme Constitutional Court?

The Constitutional Court, like any other court, rules by law and the constitution, and doesn’t intervene in politics. The problem, however, isn’t with the court, but with the practices built on those rulings; the most dominant and recent one is the dissolution of the People’s Assembly.

How?

First, the Supreme Constitutional Court has no jurisdiction regarding the dissolution of the People’s Assembly. Its role is limited to deciding whether legislation referred to it is constitutional or not; thus, making a ruling to dissolve the People’s Assembly out of the court’s jurisdiction. It does fall under the Administrative Court jurisdiction, which reports to the Court of Claims, and which referred the law to the Constitutional Court to decide its constitutionality.   

Does this mean that there’s a mistake in the announcing procedures of the People’s Assembly dissolution?

Of course, Field Marshal Tantawi made a mistake when he informed the People’s Assembly’s General Secretariat that it was dissolved, because the law states that a ruling enforcement is limited to its text, and the Supreme Constitutional Court’s ruling is limited to the fact that the law organizing the elections of independent candidates, which constitute one third of the Assembly and not the whole one, is not constitutional.

Let’s move to an important issue, drafting the Egyptian Constitution. How do you evaluate the work of the second Constituent Assembly to draft the Constitution, after the abolishing of the previous Assembly by the Administrative Judiciary?

Egypt is going through a revolution and constitutional institutions are absent; we have to finish this transitional phase as fast as possible. The constitution should have been drafted since the revolution’s early days. Things, however, happened the way they happened, and now the existing Constituent Committee should be approved and enabled to rapidly draft a constitution, so that a free democratic system can be established, the necessary legislative institutions stated in the new constitution are elected, and a president of the republic is chosen according to the provisions of the new constitution.

No; I believe that it would have been much better to have only 30 members in the Committee.Do you think that the number of the Constituent Assembly -100 members- is suitable to draft the Constitution?

Then, what are the major criteria to be met in the formation of the Constituent Assembly?

We have to understand that democracy can’t be established unless there is a basis of equality among all citizens regardless of their ethnicity, race and religion. So, the criterion must not be factional, sectarian or religious. The rule, in this regard, is that members of the Constituent Assembly are elected directly by the people with the intention of only drafting the constitution, provided that none of them will hold any state responsibilities or positions for five years by the constitution’s finalization.

The Administrative Court postponed the utterance of its ruling regarding the second Constituent Assembly; do you think that the second Constituent Assembly might have the same destiny as the first one?

I think that the Administrative Court’s decision to postpone its ruling is appropriate in our circumstances, especially because it means that there is a suitable opportunity to draft the constitution and finish it before the issuance of the ruling. Then it will be proposed for popular referendum, which will make it legitimate.

A few hours before declaring the name of the winner of the presidential elections, the Military Council issued a Complementary Constitutional Announcement, what do you think?

The Complementary Constitutional Announcement came to restrain any elected civil authority; it was issued to kill any effort to establish a democratic system; it set the basis for a unique system, in which the Supreme Council of the Armed Forces will have a supreme authority above the Egyptian people, its institutions and president, which is in no way acceptable.

How do you interpret such an announcement?

The Complementary Constitutional Announcement is a big mistake by the Military Council and all those who drafted it; it’s an extreme outrage to Egypt, to the great Egyptian people and to the armed forces themselves. It assumes that the Egyptian people are a cattle of sheep guided at the will of the ruler. This is an insult to the Egyptian people.

Does taking the oath by president Muhammad Morsi before the Supreme Constitutional Court mean that he accepts the Complementary Constitutional Announcement and the resulting situation?

Taking the oath before the Supreme Constitutional Court doesn’t mean at all that Dr. Morsi acknowledges the Complementary Constitutional Announcement. The president was clear from the beginning and declared his rejection of the Complementary Constitutional Announcement, totally and partially. Moreover, he took the oath in front of the Egyptian people in the Liberation Sq. to be under the protection of popular legitimacy. The Complementary Constitutional Announcement isn’t effective, because it was issued by an incompetent body. It contains provisions that terminate the Egyptian sovereignty over Egyptian territories, and places the members of the Supreme Military Council, by name and in person, above the state and its institutions.

Let’s return to a previous, but critical, moment; when Mubarak stepped down. Was the assuming of the country’s government by the Supreme Council of the Armed Forces legal?

Of course. The actual official is the one who replaces an official when the latter’s position becomes vacant. The Military Council assumed power without a legitimate or revolutionary reference, but in fact it managed the country’s affairs and became a ruling government, but not a legitimate one.

Then, the Military Council was performing the role of an actual official, which is legal, but has it practiced authorities in line with this role?

The Military Council made many mistakes, because it was subject to different pressures. On one side, foreign pressures, on another, revolutionists’ pressures, and on a third, pressure of the former regime’s remnants, who stuck to it and had no interest in the establishment of a democratic system that could realize the Revolution’s demands. This made the Military Council’s attitudes swing.

Has the Military Council suffered from pressures from inside the military institution?

There are some senior retired army officers whose interests are in conflict with the revolution’s. It is said that they asserted a lot of pressure to prevent the Military Council from being on the revolution’s side. Additionally, many officers and soldiers were unpleased with some practices against the revolutionists in Muhammad Mahmud Street, at the Office of the Prime Minister, Maspero, virginity inspections and so on. Additionally, some of the armed forces leaders refuse to give away the advantages they enjoyed under Mubarak.

What are those advantages?

The army possesses the whole desert of Egypt, and it has thousands of factories.

What are the Military Council’s biggest mistakes when it was running the transitional phase?

I think that the biggest and most effective and deadly mistakes during the transitional phase were the constitutional amendments approved in March, 2011.

Why?

Because the Constitutional Announcement misled the Egyptian people, with the participation of some Muslim Brothers leaders. They introduced it to the people as a mere amendment to some articles of the 1971 Constitution, but, in fact, it was a systematic thing to hinder the transitional phase and disrupt the democratic process.

At that time, the political powers were divided between two blocs; one was calling for the constitution before the elections, while the other took the opposite attitude?  Which side were you on?

Of course, I was in the ‘constitution before elections’ side, especially because, logically, a son can’t be born before his father; the constitution is the father, whose son should resemble him. This proved to be true later on. The constitutional amendments resulted in more hindrances in the transitional phase and democratic change was postponed for long months, which prevented the achievement of the goals of the revolution, which is still going on now.

From your point of view, what is the best political system for Egypt?

I think that the parliamentary system is the most appropriate one for Egypt at the moment, provided that the president is granted some governmental, or high executive powers and the president’s accountability report is submitted to the parliament, or to a Supreme Court created specifically to hold the president accountable and oversee the constitutionality of laws. This court should be comprised of senior consultants of the Court of Cassation, Court of Claims and Court of Appeals; they should be nominated by their general assemblies and not by a presidential decision.