Return of Egypt People's Assembly dogged by legal, constitutional ambiguity

Sunday's decree reinstating dissolved lower house of parliament sparks legal debate over relative powers of Egypt's military council and embattled new president

The People's Assembly, the lower house of Egypt's parliament, is due to meet within hours, following a surprise Sunday decree issued by newly-inaugurated President Mohamed Morsi calling for the reinstatement of the dissolved assembly and for fresh legislative polls within 60 days of the ratification of a new constitution.
As the decree has been published in the official Egyptian Gazette, it is considered legally binding.
Many observers see Morsi's move as the opening shot in a looming showdown between Egypt's Supreme Council of the Armed Forces (SCAF) and the new president.
There has been considerable debate within legal circles as to whether it is within Morsi's mandate to overturn military dictates via presidential decrees.
"It all depends on whether the SCAF was acting in its legislative capacity – which the military council assumed upon the dissolution of parliament last month – or whether it was relying on its executive power in its capacity as acting president," Aly Shalakany, partner at the Cairo-based Shalakany Law Firm, told Ahram Online.
If the SCAF did order the dissolution of parliament's lower house in its executive capacity, he said, "what Morsi's decree is saying is that, according to the 30 March 2011 Constitutional Declaration, when the president comes to power, he assumes full executive powers from the SCAF. Therefore, Morsi has the constitutional powers – as the executive authority – to reverse previous executive decisions, including the SCAF's resolution dissolving parliament."
One of the main debates surrounding Morsi's decree, Shalakany continued, is whether the president has, in fact, assumed full executive powers, as this is not clearly spelt out in last year's Constitutional Declaration.
Secondly, said Shalakany, if the SCAF issued its resolution dissolving parliament using its legislative authority, Morsi's decree would not stand, since legislative authority is not within the president's mandate. The decree refers specifically to Morsi's "executive powers."
"According to Article 25 of the Constitutional Declaration, the president is not granted sub-point 2 of Article 56, which includes 'approving or implementing public policy,' a very broad term," said Shalakany. "It could be argued that Morsi's revocation of the SCAF decree affects public policy – an action he cannot do."
"It's odd to find a legal precedent in a presidential decree. Usually you would see a law or a previous decree, but in this document they cite a 1934 judgment related to the High Constitutional Court (HCC)," he added. "I suspect this precedent would relate to instances in which the constitutional court was not allowed to dissolve a branch of government."
It is interesting, Shalakany concluded, that Morsi chose to cite the 30 March 2011 Constitution Declaration to back up his decree while omitting the 17 June constitutional 'addendum.' Egypt's Muslim Brotherhood had previously protested the amendments.
Constitutional expert Mohamed Nour Farahat told Egypt's O News Agency that Morsi's decision would foster a conflict between the authorities of the president, the SCAF and the HCC. The decree, alongside the Constitutional Declaration and the amendments, will see both the reinstated parliament and the SCAF enjoying the authority to legislate and to appoint members of Egypt's Constituent Assembly, charged with drafting a new constitution.
"The decree can be appealed by the State Council," explained Farahat. "It's null and void, since it conflicts with the HCC verdict to dissolve parliament, and HCC verdicts are binding upon state authorities from the day they are published in the official gazette."
Farahat was not alone in the belief that the decree could be declared invalid in court.
Legal expert Essam El-Islamboly told Al-Ahram's Arabic-language news website that the decree represented an "infringement" of the court ruling.
"The SCAF can resort to using the Supreme Administrative Court, which in turn can refer it to the HCC, which can then cancel the decree if it deems it unconstitutional," El-Islamboly explained.
Farahat went on to say that the decree may not merely be considered an encroachment upon the HCC ruling, as El-Islamboly pointed out.
"The president's decision also infringes upon the authorities of the Constituent Assembly, as it obliges it to add an article in the constitution stating that parliamentary elections will follow the approval of the new constitution by 60 days," he explained.
It is worth noting that Morsi's decree contradicts the time frame laid down by the 17 June constitutional addendum, which states that parliament is to be elected one month after approval of the new constitution.
In other words, Morsi's decision, which aligns itself with the timeframe laid down in the now-defunct 1971 constitution, goes against the previous military-authored constitutional 'declarations' upon which Egypt's democratic transition has been based.
Others, however, refute these doubts concerning the legitimacy of Morsi's decision.
Speaking to Al-Ahram, constitutional expert and Cairo University law professor Tharwat Badawy insisted that the HCC "only has the authority to rule a law constitutional or not, but it does not have the authority to get into the consequences of its verdict."
"The constitutional addendum is itself void," Badawy continued, "since it was issued by the SCAF, which lacks any legitimate authority. The SCAF was neither elected nor does its authority emanate from the defunct [1971] constitution."
Constitutional expert Atef El-Banna, for his part, who holds a similar view to that of Badawy, agreed that the decree did not conflict with the HCC ruling.
"The SCAF was practicing its authority when it dissolved parliament, and Morsi practiced this same authority as the new president. The dissolution of parliament was not included in the Constitutional Declaration as part of the SCAF's mandate," El-Banna asserted.
On 13 February of last year, two days after Mubarak's ouster, the military council issued its Constitutional Declaration overriding the 1971 constitution and making itself "the manager of the nation's affairs until the election of a new parliament and president."
The proposed transitional roadmap was later approved in a nationwide popular referendum.
The timetable initially called for parliamentary polls following presidential elections, after which both houses of parliament would draw up a constituent assembly tasked with drafting Egypt's new national charter.
The Supreme Administrative Court is now slated to issue a verdict on Monday on the constitutionality – or lack thereof – of the SCAF's decision last month to dissolve the People's Assembly.
http://english.ahram.org.eg/News/47196.aspx