Diana Serddio, Robert R.Forster, 3 Forming the 2012 and 2013 Constituent Assemblies:A Comparative Process in:

Cornelis Hulsman, Diana Serodio (Ed.)

The 2014 Egyptian Constitution, page 37 - 50

Perspectives from Egypt

1. Edition 2017, ISBN print: 978-3-8288-3838-3, ISBN online: 978-3-8288-6933-2,

Series: Anwendungsorientierte Religionswissenschaft, vol. 10

Tectum, Baden-Baden
Bibliographic information
3 Forming the 2012 and 2013 Constituent Assemblies: A Comparative Process (Diana Serddio and Robert R. Forster) 3.1 The Formation of the 2012 Constituent Assembly The March 19, 2011 referendum paved the way for the elections of the Peo ple's Assembly from December 2011 - January 2012, and allowed the new Assembly members to elect those responsible for drafting what would be come the 2012 Constitution. Collectively attaining 65.3% of the votes during the course of the November 2011 parliamentary elections, the Muslim Brotherhood's Freedom and Justice Party (FJP) and the Salafist al-Nur Party held considerable influence in the election process. An estimated 70% of seats in the first post-Mubarak Constituent Assembly were held by Islamists and tensions mounted when accusations were aired, claiming that the Islamists were attempting to use their numerical advantage to shape the Constitution, and thereby Egypt's identity, in their image.70 Within 11 days of the Assembly's formation on March 17, 2012, the liberal and non-Islamist Assembly members had walked out. On April 10, the High Administrative Court decision dissolved the first 2012 Constituent Assembly. In order to ensure greater political cohesiveness for the next Assembly, ne gotiations between the different political factions and some civil society representatives were launched to ensure a more balanced representation of the country's socioeconomic, political and cultural fabric.71 However, when the second Constituent Assembly was elected on June 12, 2012, the Islamists still held approximately 55% of the seats. The independ ent and non-Islamist candidates held the other 45%. Furthermore, out of the 100 members, there were a total of 37 party representatives, a factor that made the Assembly "too political" for many observers.72 Much like the first Constituent Assembly (March - April 2011) negotiations in the second As sembly (June - November 2011) were framed by an Islamist/non-Islamist rift that formed a barrier to constructive dialogue on issues central to the 2012 Constitution. Again, the non-Islamist 'minority' complained that the Jadaliyya 2012. Accessed June 19, 2014. Casper 2013 (b). Serodio 2013 (b). 37 Islamists used their numerical advantage to have disproportionate influ ence over the drafting process, with little to no effort made to reach consen sus. Articles could only be passed by a 67% majority, but if this threshold was not reached, it could subsequently be lowered to a 57% majority. As such, opponents did have some room for dissent, but it was limited.73 Thus, citing "the Islamist monopoly on the constitutional-drafting process," 17 members of the Constituent Assembly walked out before the com mencement of the final vote on November 30, 2012. Those who withdrew included three church representatives, two Christian members and 12 civil party representatives. Additionally, eight technical advisory committee delegates to the Assembly walked out. Many of the Islamists, on the other hand, claimed that they "faced] a minority that wants to control the Assem bly"74 and they believed their political opponents were purposely attempt ing to delay the process to the detriment of their legitimacy. In addition to these concerns, there was a feeling among several Assembly members that the process was rushed so that the 2012 Constitution could be put to referendum before the Supreme Constitutional Court would be able to rule the Constituent Assembly unconstitutional. This ruling was ex pected by a number of participants and observers, given that the Assembly was chosen by the People's Assembly, which was dissolved by a Supreme Constitutional Court decision on June 14 earlier that year. Muhammad Mursi's controversial Constitutional Declaration, announced on November 22, 2012, highlighted the Islamists' fear for the Supreme Constitutional Court's pending decision. In the declaration, Mursi made his decisions as President "final and unchangeable by any individual or body until a new constitution has been ratified and a -new parliament has been elected.”75 Thus, the declaration could be used to block any attempted dissolution. The Supreme Constitutional Court was also expected to rule against the Shura Council, which was elected under a slightly amended Electoral Law as the already-dissolved People's Assembly. The declaration also granted the Constituent Assembly an additional eight months to finalize the draft of the 2012 Constitution. According to Amr Darraj, Secretary-General of the 2012 Constituent Assembly and FJP's Secretary of Foreign Relations, the ex tension was meant to give members who had withdrawn another chance to Al-Masry 2012. El-Din 2012. Ahram Online 2012. Accessed July 14, 2014. 38 come back and contribute, this time under a more flexible deadline.76 How ever, if the Islamists' opponents were already unhappy within the Assem bly, Mursi's November 22 Declaration underscored the decisive schism be tween the two factions. In addition to the alleged "politicization" and "unprofessionalism" seen in both of the 2012 Constituent Assemblies, some of the Assembly members complained about the inconsistencies in the final draft. While inconsisten cies and poor phrasing were supposed to be handled by the Assembly's Drafting Committee and the Editing Committee, their effectiveness was questioned by some of those involved.77 Others saw in the 2012 Constitu tion a semblance of the Muslim Brotherhood's program of 2007.78 3.2 Changing the Process: Amendments to the Constituent Assembly's Selection Process in 2013 The immediate goal of the Interim Government under ' Adli Mansur was to ensure political stability after Mursi's deposal. The constitutional crisis of November-December 2012 polarized Egyptians and much of the political discourse devolved into hate speech and accusations. A properly structured constitution with broad public support was necessary to unite the country. In order to mitigate the issues experienced during 2012, several revisions were made to the formation process of the 2013 Constituent Assembly. A key change was the formation of the Committee of Ten which provided ex pert advice and ensured the document was legal and properly structured. The Committee of Ten also formed a buffer ensuring that the Assembly did not devolve into partisan politics. There was a concerted effort to ensure that the 2013 Constituent Assembly was less political in nature and contained a wider range of representatives including civil society organizations, women and youth. 3.2.1 On the Committee of Ten The Committee of Experts, also known as the Committee of Ten, was a group of people with expertise in constitutional law consisting of six senior 76 Serodio 2013 (a). 77 Press TV 2012. Accessed June 23, 2014. 78 Aly 2014. 39 judges and four constitutional law professors. The latter of which were ap pointed by the Supreme Council of Egyptian Universities.79 The task of the Committee of Ten was to filter through the 2012 Constitu tion and make amendments to what they deemed were controversial arti cles. Their decisions would be informed in part by Egypt's former constitu tions. The Committee of Ten was given one month, from July 21 to August 20, 2013, to accomplish this task. After this phase, the Committee of Ten would pass the draft to the Committee of Fifty. The Committee of Ten would then serve as an advisory council to ensure coherence in the final draft constitution that would be put to referendum. The Committee met with a mix of praise and criticism. In 2012, there was condemnation from the Islamists' political opponents; the Constituent As semblies did not include enough experts, and the large majority of mem bers had no minimum proficiency on constitutional law.80 The 2013 Con stituent Assembly was very different from the 2012 Assembly due to the presence of the Committee of Ten. However, the suggestions of the Com mittee of Ten were only partially taken into account, and members of the Constituent Assembly truly demonstrated a significant level of independ ence during the drafting process.81 3.2.2 On the Committee of Fifty The Constituent Assembly of 2012 consisted of 100 members. These mem bers were selected according to the results of the parliamentary elections as well as bound by an agreement reached between political actors to avoid the dissolution of the Constituent Assembly.82 The Constituent Assembly of 2013, on the other hand, had its members nominated - a procedure which was largelyin line with requests in 2011 and 2012 from the nationalists, liberals and leftists. Liberal and leftist mem bers believed the best way to ensure broad representation of Egypt's socio economic and political fabric was to keep the number of political party rep resentatives to a minimum. Such left-wing groups preferred to appoint See Appendix I for a list of the members. Serodio 2013 (b). Hulsman and Serodio 2014. See Appendix II for a list of the members. 40 relevant heads of public and private organisations, institutions and syndi cates.83 Thus, Interim President 'Adli Mansur asked key institutions to nominate two members to be a part of the Constituent Assembly, from which the Cabinet would select one. These institutions included professional syndi cates, labour and agricultural federations, trade unions, writers' and artists' unions, student councils, NGO federations, national councils (of human rights, women, children and the disabled), religious institutions (al-Azhar and the churches) and political party representatives. From the internal se lection of each of these institutions, the Interim President chose nominees he perceived as being the most suitable according to his own judgment. 3.2.3 The Membership of the 2014 Constituent Assembly All in all, 38 representatives were nominated by various civil society institu tions. These representatives included three representatives from al-Azhar, three from the churches, and eight political party representatives (one of whom was a member of al-Nur Party.) The Muslim Brotherhood's FJP, along with many Islamists, declined to participate in the Constituent As sembly on the grounds that President Mursi was illegitimately deposed.84 Conservative Muslims, nevertheless, still held approximately 10% of the seats within the Assembly. The conservative Islamic bloc included the three al-Azhar representatives, an al-Nur Party representative, a former-Muslim Brotherhood member, and at least one reputed Islamist sympathizer - a member of the Doctors' Syndicate.85 In addition, there was one representative from the police and one from the army. Seven public personalities were appointed by the Interim Cabinet to ensure the representation of minorities in Sinai - as well as Nubians, Copts and women.86 Notables such as the politician Amr Musa87, the philanthro Serodio 2013 (b). Casper 2014 (e). Casper 2013 (d). With five members, women only constituted 10% of representatives. Initially, upon the request of President ' Adli Mansur and his Cabinet, the National Council for Women submitted a list which included the names of twenty women nominated to participate in the Committee of Fifty, including Dr. Shirin F. Ibrahim. The Cabinet, however, sent back a note asking them to narrow the list down to only two, from which they would select only one, representing the 41 pist Dr. Majdi Ya'qub,88 and the President of Cairo University, Jabir Jad Nasir, were also appointed since they were believed to be widely popular figures whose presence would be valued by most Egyptians.89 Despite efforts to achieve a comprehensive, balanced and fair representa tion of Egyptians in the Constituent Assembly, there were still only five women (approx. 10%)90 and five youths (also approx. 10%) which was con sidered insufficient. In Egypt, the estimated median age in 2014 was 25.1 years of age.91 According to some critics, the presence of the younger gen eration should have been much more substantial. As for Christians, they represented 8% of the seats in the Committee of Fifty. The Freedom and Justice Party's refusal to appoint a representative to the Committee of Fifty meant abstention from participation, thus, a portion of the population was not included in the process. This was a concerning mat ter, considering the broad electoral support of the FJP in 2011 and 2012. It was near impossible to bring the Muslim Brotherhood supporters back to the negotiating table: Islamist political grievances due to Mursi's removal on the one hand, and the opposition's grievances due to the political exclu sion and use of violent coercive tactics by Mursi-supporters92 on the other did not bode well for the hope of peaceful negotiations. Council, and another woman public figure out of the Cabinet's quota of nominating ten public personalities for appointment to the Committee of Fifty. Former-Minister of Foreign Affairs under Mubarak and a former Secretary- General for the Arab League. Professor of Cardiothoracic Surgery and head of his own heart foundation. A Copt living in the United Kingdom, Ya'qub was involved in a great deal of humanitarian work in Egypt. Hulsman 2014 (a). Initially, upon the request of President 'Adli Mansur and his Cabinet, the National Council for Women submitted a list which included the names of twenty women nominated to participate in the Committee of Fifty. The Cabinet, however, sent back a note asking them to narrow the list down to only two. From the two, they would select only one, representing the Council, and another woman out of the Cabinet's quota of nominating 10 public personalities for appointment to the Committee of Fifty. Central Intelligence Agency 2014. Accessed July 13, 2014. The term "Mursi-supporters" has been used here since Muslim Brotherhood leaders denied involvement in violence attributed to their organization. Furthermore it is impossible to distinguish between Muslim Brothers and most 42 It is important to bear in mind that the notion of "fair" representation will always be subject to interpretation and that it is a difficult - if not a com pletely impractical - goal to attain. The opaque nomination process of the Committee of Fifty's members resulted in disapproval among some Egyp tians, particularly liberals, the youth and of course, the Islamists. Yet, if it is true that the Constituent Assembly of 2012 had the democratic advantage of having its members selected by a legitimately elected group of individuals a closer look at the names and positions of the members of the 2013 Assem bly shows that they were quite a representative group and reasonably in clusive in nature. In addition to the 50 permanent members, there were 49 reserve members who were able to contribute suggestions during the first six weeks of the Assembly's work, but could not vote. However, according to interviews with one such reserve member, Najib Abadir (a founding member of the Free Egyptians Party), only approximately 15 of the reserve members were actively involved in the first half of the Committee's working period. These included Najib Abadir himself (Christian), Dr. Layla Takla (Christian), the reserve members of al-Azhar, the Churches, and workers associations.93 The presence of these reserve members was eventually ended by the Committee of Fifty's Chairman, Amr Musa, who argued that their presence was delay ing a process already under a tight deadline.94 Several of the more active re serve members (Najib Abadir among them) protested the decision, but to no avail. 3.2.4 Regulations W ithin the 2014 Constituent Assembly During the first session of the Constituent Assembly, held on September 8, 2013, the participants had to write the bylaws. Thus, the definition of con sensus in this Assembly was set at a 75% majority benchmark. This bench mark was substantially higher than the 2012 Constituent Assembly's 67% benchmark, which also held the possibility of being lowered to 57% in the case of controversy. The members then agreed that all work would be vol untary (meals, too, were at the members' expense). They further discussed Mursi supporters since members of the Muslim Brothers are not registered as such. Additionally, since the Muslim Brotherhood was declared a terrorist organization in December 2013, most members would anyhow deny their membership. Casper 2014 (d). Serodio 2014. 43 the possibility of preventing members from running for political offices in the upcoming elections, either by election or political appointment, how ever the end, this proposal did not pass. Leadership of the Assembly was decided upon as follows: Amr Musa was elected as the President of the Assembly, and Muna Dhu al-Fiqar, Majdi Ya'qub and Kamal al- Hilbawi were elected as Vice-Presidents. Similar to the 2012 process, five main subcommittees95 were formed. 1) Fundamentals of the State - Presided over by Muhammad Mahmud 'Abd al-Salam 'Abd al-Lahf from al-Azhar, assisted by Mirfat al- Tallawi from the National Council for Women. 2) Freedoms and Liberties-Presided over by Huda 'Abd al-Mun'im Faraj al-Sada, from Cairo University, assisted by the youth repre sentative 'Amr Salah al-Din Ala’ al-Din Muhammad. 3) Governing System— Presided over by 'Amr al-Shubaki, a political scientist, assisted by the Tamarrud member Muhammad Ahmad 'Abd al-'Aziz. 4) Drafting— Presided over by 'Abd al-Jalil Mustafa al-Basyuni, a prominent cardiologist, activist, and former presidential candidate, with 'Amr Musa as Vice-President. 5) Public hearings/dialogue with society— Presided over by President Samih 'Ashur, the head of the lawyers' syndicate, with Mahmud Badr, representative of Tamarrud, as Vice-President. Underneath these, smaller subcommittees were formed where each mem ber had a say in which subcommittee they would prefer. Most of them were assigned to their preferred subcommittee. Aside from the general votes in the plenary sessions where all members would gather, their votes would only count in that committee. Regardless of their assigned subcommittee, Assembly members always had the right to attend the sessions of other subcommittees and give their input. Every Wednesday afternoon, they held a plenary session that was broad casted live to make the public aware of the work inside the Assembly. These broadcasted sessions however, were terminated by the end of Octo The Committee's working hours were Sunday through Thursday from 11am to 3pm, with a pause for lunch. After the lunch break, sessions would continue until 6-7pm, or if necessary, until 11 pm or midnight. 44 ber. Again, the Assembly's Chairman, Amr Musa, decided that ending broadcasts was necessary to ensure that the committee members would fo cus and that the final draft would meet the imposed deadline.96 The Drafting Subcommittee was the first subcommittee to access the Com mittee of Ten's initial draft and analysed it in the context of the 1971 and 2012 Constitutions. The Drafting Subcommittee then distributed the articles to the appropriate subcommittees - Fundamentals of the State, Rights and Freedoms, and System of Governance and Power. The subcommittees would then hold sessions and discuss the articles, propose changes and vote among themselves on the best way to amend them. They could also, of course, add new clauses and remove others as they saw fit. The Committees would carry out such tasks and finalize their drafts after voting within the subcommittee, before submitting their changes and additions to the Draft ing Committee. Upon receiving a new article, the Drafting Subcommittee members would redraft the language (if needed) and always with the attempt of maintain ing the article's original intended meaning. Within this subcommittee, the members usually reached consensus and only rarely had to vote on the wording. If the meaning of the article had in any way been altered after ed iting, the Drafting Subcommittee had to invite the head of the subcommit tee in question to discuss the matter. Sometimes the subcommittee's head would accept their changes, and sometimes they would not. After all, as the head of the subcommittee, s/he had to remain truthful to all the subcom mittee members s/he was representing. Furthermore, the heads of the sub committees had to be able to defend the article when presenting it to the Committee of Fifty during the plenary sessions.97 The Drafting Subcommittee was presided over by Abd al-Jalil Mustafa al- Basyuni, a prominent cardiologist and activist, and the President of Cairo University, Jabir Jad Nasir. The Drafting Subcommittee also counted on the participation of Committee members such as Muna Dhu al-Fiqar, Bishop Antonius, Muhammad al-Salmawi, and Amr Musa - who would occasion ally chair the meetings when present. Additionally, they had the support of external advisors such as: Serodio 2014. Casper 2014 (d). 45 • Salah Fadl and Mahmud al-Barbari from the Arab Language Council • Muhammad Imad al-Najjar and 'Abd al-'Aziz al-Salman, Commis sioners of the Supreme Constitutional Court assisting the expert Committee of Ten • Ahmad Radwan, former senior judge and government cabinet minis ter Additionally, Members from Committee of Ten regularly contributed to the work of the Drafting Subcommittee. In parallel to the Drafting Subcommittee, there was the subcommittee for Social Dialogue and the Review of Proposals. The members of this sub committee created several channels of communication between Egyptian society and the Assembly; a process similar to an equivalent subcommittee established during the 2012 Constituent Assembly. They held a hearing ses sion each Sunday, and numerous people from diverse backgrounds at tended to voice their concerns. The members of the Social Dialogue Sub committee would receive the input from other members of the Assembly and formulate proposals. In addition to this weekly 'open-day', members of the subcommittee collected input from thousands of Egyptians via online mechanisms. Furthermore, each subcommittee member had a physical mailbox through which they received hundreds of letters, which were then summarized.98 The subcommittee members would then select the sugges tions they considered to be the most relevant, distributing them to the sub committee responsible for the mentioned subject. Once the subcommittees completed their drafts, they had their articles re vised by the Drafting Committee. After reaching an internal agreement, the subcommittee's head would present the articles in a plenary session, where other members who had not been present during the subcommittee's de bates would provide feedback. Taking this feedback into consideration, the subcommittee would then assemble to review and edit in order to ensure that any article would not be vetoed by the Committee of Fifty during the final voting session. 3.3 General Assessment on the Committee of Fifty As shown, the Committee of Fifty was comprised of individuals meant to be representative of Egypt's various socioeconomic, political and religious 98 Casper and Hulsman 2014. 46 affiliations. In light of this, it does not come as a surprise that contestations and disagreements took place throughout the three months of the drafting period. Most disagreements demanded some negotiation between opposing parties, but were eventually solved without much resentment. Others how ever, required serious compromises that had to be mediated by Assembly's Chairman, Amr Musa. Musa's role is said to have been crucial in settling the most serious disagreements." On October 21, however, reserve members were asked to stop attending the Committee of Fifty's sessions. Najib Abadir believed it was a pity that re serve members did not play a more active role later on in the process, as they were "a very worthy group of individuals."100 Many other reserve members also complained. Some even suggested resorting to a court case in an attempt to reverse Amr Musa's decision. However, in the end, reserve members decided they should not jeopardize the process and stayed con nected via telephone. When discussing the matter, Amr Musa said that decision had saved the committee a lot of its precious time - " I also ordered, no media, no TV. Once the TV is there, you're trying to show how wonderful you are - so there was no media, no reserve members." If Musa had not done so, he said, "We [the Constituent Assembly members] wouldn't have finished."101 Indeed, as we shall now see, many of the discussions inside the Assembly were described as lengthy and intricate. Even though there seemed to be a sense of respect— even friendship, among the members of the Committee of Fifty, consensus had to be "hammered out" at times in order to finalize the final draft. The exclusion of media coverage, however, received extensive criticism. Professor Ayman Salama, for example, believes that the Egyptian people had "an indisputable right to know [what was going on] - a right protected under international and domestic law."102 At least 40 articles from the 2012 Constitution were removed by the Com mittee of Ten, while the Committee of Fifty removed yet more articles, add ing 42 new ones. In the end, no article other than Article 2 remained un changed. According to Bishop Antonius, what began as a process of consti 99 Casper 2013 (c). 100 Casper 2014 (d). 101 Serodio 2014. 102 Forster, R. A. 'Consultation with Prof. A. Salama,' Cairo, September 23, 2014. 47 tutional amendment became the drafting of a new constitution by the 2013 Constituent Assembly.103 Those interviewed for this report highlighted the amicable political envi ronment during the drafting process. Although a Machiavellian opportu nity to steamroll over the voices and opinions of the unofficial conservative bloc, the Assembly members sought to avoid passing any article simply by making use of majority rule. However, if a subcommittee touched on a par ticular person's interest and they happened to be absent, those present would usually postpone the discussion. Bishop Antonius noted the challenge of coming to consensus for the 50 rep resentatives with varying beliefs and opinions, especially when they were under the tight three month deadline.104 Indeed, as Muna Dhu al-Fiqar points out, the deadline did not allow for a thorough review of the docu ment, resulting in some inconsistencies and repetitions.105 The Chairman, Amr Musa, would reportedly always give members room to speak their mind and guaranteed that even the most disparate of ideas would still be discussed. Some controversy existed around the Chairman's ability to veto majority votes. However, even in such cases, Musa would sit with opposing factions and the subcommittee representatives to ensure that some form of understanding was reached between conflicting sides. Musa was also known to show patience during difficult discussions. To avoid any withdrawals, meetings were often held behind closed doors with only a se lected group of individuals. The final referendum - although approved - was not considered perfect by any of the members interviewed, but they did express overall satisfaction with the outcome of their work.106 The final version of the 2014 draft Consti Casper and Hulsman 2014. Bishop Antonius is expressing a sentiment commonly held among those participating. However, the 2012 Constitution was suspended by Field Marshall 'Abd al-Fattah al-Sisi on July 3, 2013, not cancelled. The Committee of Ten amended the 2012 Constitution. Hulsman, C. and R. A. Forster, 'Consultation with Prof. A. Salama', Maadi, Cairo, July 6, 2015. Casper and Hulsman 2014. Hulsman and Serodio 2014. Due to the implementation of the rights of youth, women, and the disabled, as well as focusing more on improving education and health, Dr. Shirin F. Ibrahim is proud of Egypt's 2014 constitution. She considers such inclusions to be a new page in the history of Egypt, not only in regulating internal affairs but also in complying to international standards. 48 tution was approved by all, and each article contained within it was passed with at least an 80% majority (with the exception of four articles relating to elections and positive discrimination107). As Amr Musa said, the universal agreement on the final outcome was certainly the most important aspect of the 2014 Constitution.This was a stark contrast to the 2012 Assembly, where the drafting process experienced "notable discrepancies due to the policy of exclusivity adapted by the majority of Islamists."108 Casper and Hulsman 2014. 'Forster, R. A. 'Consultation with Prof. A. Salama,' Cairo, September 23, 2014. 49

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After President Hosni Mubarak was toppled in 2011, discussions followed immediately regarding the revision of the Egyptian Constitution. Islamist political groups insisted that Parliamentary and Presidential elections should precede the formation of a new Constitution, aiming to use their momentum to gain the upper hand in the Constitutional Assembly. Non-Islamists believed that representatives from all layers of society must first formulate a new Constitution before elections should be held. Out of this struggle emerged the 2012 Constitution, a document deeply influenced by Islamist political ideas and goals. Dissatisfied with the proceedings, the non-Islamists walked out of the Constitutional Assembly before the Constitution was finalized. In attempts to reconcile the alienated non-Islamist factions, and heal a divided Egyptian society, the Egyptian Constitution of 2014 was created. All efforts were made to avoid a similar walk-out from Islamist factions. Various political actors were interviewed during, and shortly after the 2014 constitutional formation process. This book is essential reading for anyone wishing to understand the discussions and debates surrounding the formation of the 2014 Constitution. This book follows and complements the previous books in the series on recent religious and political developments in Egypt, in particular Vol. 3 The Sharia as the Main Source of Legislation? (2012), Vol. 8 Rise and Fall of the Muslim Brotherhood 2011-2013 (2016), Vol. 9 From Ruling to Opposition 2011-2013 (2017).