Battle of councils

Al-Ahram: A Diwan of contemporary life (662)
Battle of councils
There was no reason for the House of Representatives and the Senate to differ. However, when the government was dismissed in 1937, the Mohamed Mahmoud government dissolved the House of Representatives with its Wafdist majority. The ensuing forged elections led to the first real split between the two councils. Professor Yunan Labib Rizk covers the clash
Ever since the issue of the 1883 constitution known as the "basic law", the Egyptian parliament has been based on a two-council system -- that of the law consultation -- Shura Council and the General Assembly. Although this reverted to the system of a single council, the Legislative Assembly, in 1911, thid did not last long. Its sessions were halted before a year passed, and this break lasted for nearly 10 years, during which stormy waters passed under the bridges.
This began with the announcement of the British protectorate over Egypt, a development that broke the remaining weak threads connecting Egypt to the government of Istanbul. WWI had only just ended when the popular 1919 Revolution broke out, leading in the end to the protectorate state, Great Britain, acknowledging Egypt as an independent state in the 28 February 1922 Declaration.
It was an independence with conditions, yet the reservations this statement included applied to certain specific issues, and not to the establishment of a full "constitutional life". This encouraged Egyptians to complete the foundations of their independence, most importantly through drafting an appropriate constitution that differed from its predecessor. King Fouad formed a committee to meet this goal, and it drafted the most famous of Egypt's constitutions; the 1923 constitution.
This constitution guaranteed a return to the system of two councils, and they acquired the two names they have been known by in all of the world's constitutions, the House of Representatives and the Senate. The first of the two has been of interest to historians of representative life because it was the site of conflict between the king and the headquarters of the High Commissioner on one hand, and the nationalist movement on the other, as well as for the fact that it was dissolved more than once and was the site of partisan conflict. The second council, however, has not earned similar interest.
Not many people know that while the members of the "small council", as legists call the House of Representatives, were being elected through general elections, the right to elect members of the "large council" was restricted to certain groups among the notables and people of distinction. Most people also do not know that two-fifths of the members of this council earned their membership through appointment. Nor do they know that the membership term in the Senate was 10 years, twice that of the Representatives, and that a mid-term renewal took place every five years. More importantly, senators did not suffer like their "smaller" colleagues from the risk of dissolution. Article 81 in the constitution stated that if the House of Representatives was dissolved, only the sessions of the Senate would halt, while its members would not be stripped of their membership or deprived of their parliamentary compensation.
As for the relationship between the two councils, their statutes stated that if one of them submitted a draft law or proposal on an issue, and if discussion of it began in one of the two councils, it would not be placed in the work schedule of the other council until the first issued an approval of it. When one of the two councils finished reviewing the draft law or proposal, its head sent it to the head of the other council, and the relevant minister was notified.
The constitution took into consideration the possibility that the two councils might differ over proposed issues. It stated that should one of the two councils amend a draft or a proposal approved by the other, it must submit the unforeseen amendment to that council. If the latter did not approve, then a committee would be commissioned to meet another committee from the second council, in order to agree on texts acceptable to both committees. The matter would be returned to the two councils.
The statute of the House of Representatives stated that when the two committees commissioned by the two councils met, their meeting would not be considered legal unless the quota of attendants in each committee was met in accordance with each council's statute. It also stated that discussions would be led by the head of the Senate's committee, and that decisions would be issued by a majority of each committee's members.
At the time they were drafted, these texts seemed superfluous given the belief that elections would create a House of Representatives and a Senate with majorities from the same single party. As such, there would not be an opportunity for difference as long as the party victorious in the two councils was one and the same. Another reason was related to what was settled in parliament in 1924, following the infamous dispute between King Fouad and Saad Zaghloul over the appointment of two-fifths of the council. They asked the Belgian judge in the mixed courts Monsieur Van Den Bush to rule on the matter, and he ruled in favour of the government's right to name the concerned council members, and that a royal decree be issued for them.
And thus the palace forewent appointing loyalist senators to the parliament formed in 1924 despite the resignation of the Zaghloul government late that year and the formation of Ziwar's government loyal to the king. This did not cause any problems for a simple reason, that being the suspension of parliament during that period. The situation thus remained as it had been following the 1926 elections, when the Wafd Party retained a majority in the two councils.
The matter differed, however, following the dismissal of the government -- which was in power more than once -- in 1929 and Mohamed Mahmoud, head of the Liberal Constitutionalists Party, assuming the premiership of the new government. The man put his mind at ease by closing parliament with a lock and key, thus cutting any problems off at their source. This is also what Sidqi Pasha did in 1930, when he cancelled the 1923 constitution and issued a new constitution fitting royal standards. Two councils were created, the House of Representatives and the Senate, also fitting royal standards, and of course there was no opportunity for them to differ with one another.
After Sidqi's constitution was abrogated in 1935 and the 1923 constitution reinstated, and following the subsequent elections the following year in which the Wafd secured a major victory as usual, the two councils were in conformity with each other as had occurred in all previous parliaments. The situation remained thus until the government was dismissed the day before the end of the year 1937. A second Mohamed Mahmoud government was formed, and one of its first measures was to dissolve the House of Representatives with its Wafdist majority. Yet there was no constitutional justification before the palace or Mahmoud Pasha to do away with the Senate.
Elections were held in the beginning of the next year (1938) to form a new House of Representatives. These were the first obviously forged elections in the history of the Egyptian parliament. The head of the state, Mohamed Mahmoud Pasha, used the state's influence on a wide scale, bringing results different from any previous free elections. The Liberal Constitutionalists, who allied on a single list with the palace's two parties, the People's and the Union Parties, won 93 seats. The Saadists, led by Ahmed Maher and Mahmoud Fahmi El-Nuqrashi, won 80 seats, while the Wafd Party won only 12 seats and its two major leaders, and Makram, lost in their districts.
For the first time in the history of the Egyptian parliament, there were two councils -- the House of Representatives with a Wafdist minority, and the Senate with only idle prattle, and not a majority, of Wafdist members. It is characterised as such because the Wafd Party entered the elections in 1936 under the cover of the national front, whose leaders had agreed on a system for distributing seats. This allowed the other parties to gain more than their true size in the two councils, and this was also repeated with regard to the appointments in the Senate.
Idle prattle rather than the formation of a majority was also evident in the leadership of the council. The third Mohamed Mahmoud government, following its formation in late April 1938, succeeded in enticing the Senate to choose Mohamed Mahmoud Khalil Bey as the head of the council on 8 May. He was an independent figure and leaned towards French culture. He was married to a Parisian woman, and was well known for his love of collecting valuable paintings, to the extent that following his decease the state turned his home into an art museum.
It was under these circumstances that the first battle between the two councils broke out.
BECAUSE THE ISSUE was unique in the history of the Egyptian parliament, Al-Ahram was intent on following it in minute detail and with utmost objectivity. This was particularly the case given that one aspect of the issue was of a partisan nature, leading all the partisan newspapers or those loyal to the palace to address it from the perspective of the camp they supported.
The first reference to the topic appeared in the 19 July 1939 issue of Al-Ahram, when it published a discussion that was held in the Senate on the title deeds tax on bequests, which the House of Representatives had previously approved of within a budget assessment for the new year. This discussion ended with approval for the budget assessment law after setting aside the title deeds tax draft law. Some government circles considered this a dispute between the two councils "for setting aside the bequests tax harms one of the sources of income on which the government has based its estimate of expenditure." Al-Ahram commented by saying that if the House of Representatives did not agree with the Senate's decision to set aside the beforementioned tax, as was anticipated, "then a difference will have occurred between the two councils, and there is no means to resolving this difference other than by inviting the two councils to a meeting in the form of a congress, in keeping with Article 166 of the constitution."
Our newspaper added that the majority of the opposition senators held that an invitation to such a congress would be unsound from a constitutional perspective "because the difference intended by this article provides for the calling of a congress in a case not like that currently existing between the two councils. And thus the opposition has decided not to assist the convening of a congress for which it sees no constitutional backing." Opposition members would do this by not attending the congress' session, thus precluding the attendance of an absolute majority stipulated and preventing the congress from being held.
They also had another opinion, and this was that the council had safeguarded its authority by not accepting the principle the government wanted to pass through the insertion of a draft tax law into the budget law. They held that no damage would be done by considering the bequest tax separately from the budget and approving it.
Everyone waited to see what would happen during the following days. Despite the uncertainty over there being a partisan conflict involved in the decision, Al-Ahram reported the opinion of the finance committee in the Senate, which added a social aspect to the dispute. This social aspect resulted from the difference between the class affiliations of the members of the Senate and their colleagues, the members of the House of Representatives, most of whom descended from high social class origins. It was thus not unusual for the committee to attribute the inappropriateness of issuing the law at that time to the following reasons.
First, the financial and economic situation of the country continued to worsen one day after another due to the decline in the prices of cotton and all financial papers and the advent of a major financial crunch. This did not allow for the imposition of a new tax following the previous taxes on moveable capital, commercial and industrial profit, work earnings, and fees for stamps.
Second, it was not yet known what collection of the previously imposed taxes would be produced, as until that time they had not yet been collected due to the major effort required and short time imposed in order for this to be done in a fixed and ordered manner. Also, the government had not been able to inform the parliament as to when the public treasury would receive the taxes it had imposed, although early signs indicated that the amount expected to be collected from the taxes was not to be taken lightly.
And third, the burden of the title deed tax on bequests would mostly fall upon the shoulders of real estate owners, as moveable wealth could be smuggled away at any time. The situation of such owners had declined in recent years, making it difficult for them to bear the burden of these new taxes in addition to their other burdens.
In addition to the partisan conflict and the sociological reasons for the outbreak of the battle between the two councils, one can add the political situation resulting from the illness of the prime minister, Mohamed Mahmoud, with all of his standing and prestige. Numerous parties dared to pass what they saw fit regardless of the government's position, for its lines had fallen into disarray with the absence of the premier.
The finance committee did not waste much time in responding to its counterpart in the "big council" and rejected most of its opinions. Al-Ahram published the text of its report:
"It does not see any reason for the government to not withdraw its drafts, particularly as the Senate committee viewed the matter as natural and unobjectionable and held that its opposition was related to the circumstances and nothing else. As for inserting the article referred to into the budget assessment law, the opinion of the House of Representatives' financial committee is that the constitution sees no harm in including within the budget law any legislative measure closely tied to the state budget.
"As such, the constitution is innocent of that which was attributed to it in terms of prohibiting the insertion of drafts of a financial nature such as the tax law within the budget law. And thus it can be said that the Senate, for reasons related to the object of the tax in itself and of no relation to the constitution, does not support the government applying its right in attempting to pass it by the means granted to it in the constitution. Resorting to the constitution and using it as justification was nothing but a means to reach uncertain results because it incites doubt in the hearts of those distanced from constitutional law about the behaviour of one of the two representative bodies without justification or need."
The response of the House of Representatives' committee placed the government in a quandary, particularly as three minister members of the Senate had participated in the approval of the budget assessment law as passed by the Senate's committee, they being Mahmoud Ghalib Pasha, Hussein Sirri Pasha, and Hussein Heikal Bey. If this meant anything, it was that the government, in the absence of its premier and Abdel-Fattah Yehia assuming his post, has lost its unity, and that its members had come to act according to their personal opinions.
Al-Ahram reproached the standing government and those that had preceded it, all of whom had become active at the close of their parliamentary terms. "Drafts are sent one after another to the two councils, and these are typically drafts that require a great deal of study and allocation... We have noticed that three months of the financial year may pass (May, June, and July) without the law related to the budget assessment being issued, and we know that public works and beneficial projects are greatly harmed by delaying commencement of its enforcement."
And thus the quest for a solution began.
IN THE CABINET, the search revolved around two choices. One was to send the draft budget assessment to the ministers to put into force, as stated in its final articles that it was "upon the ministers to enforce this law, each as concerns him." This would be justified by the fact that the draft approved by the House of Representatives comprised more than one law, and that the Senate had approved that, specific to the budget assessment in the same form as that approved by the House of Representatives with no change or amendment, leaving out only the article related to title deed taxes on bequests. The other was to re-send it to the House of Representatives since the draft had not been approved by the Senate.
Yet at that time a third choice surfaced, for it turned out that Article 166 of the constitution stated, "if a difference takes root between the two councils over the passage of a chapter of the budget, it is resolved through a decision issued by the two councils convening in the form of a congress of an absolute majority."
On 20 July 1939, the cabinet met under the leadership of Abdel-Fattah Yehia in its headquarters in Alexandria, to discuss the issue. This meeting was attended by Abdel-Hamid Badawi Pasha, the leading legal counsel, and lasted for about four hours, during which time everyone busied themselves with seeking a solution.
The following day, Al-Ahram presented a detailed report on what had taken place in the meeting. It stated that the idea of holding a parliamentary congress was discussed, but that fear of its failure due to the lack of an absolute majority of the members of the Senate predominated. This raised the question of the fate of the budget at such time, as well as whether it was permissible to end the parliamentary session following a failed attempt.
The answer was in the negative, for Article 140 of the constitution stated that, it was "prohibited to close the parliament's convening session before completing the approval of the budget." And failure of the congress did not imply completing the approval of the budget, but rather meant the opposite. This raised another question; "can the parliamentary session remain running and the budget not be functioning?"
The answer was found in Article 142, which stated that, "if the budget law is not issued before the end of the fiscal year, the old budget is used until the new budget law is issued. However, if the two councils approve some of the budget's chapters, it is possible to enforce them temporarily." Some ministers grabbed onto this final paragraph and demanded that it be applied should the parliamentary general congress fail, as long as the two councils had in fact passed all of the budget's chapters with the exception of the title deed tax on bequests.
The Al-Ahram reporter in Alexandria stated that the cabinet had concluded its session without reaching a decision on the dispute, leaving the rest of the issue's points to the top royal counsels to review and bring to a conclusion. It was at this time that the constitutional dispute turned into a political battle between the Wafd Party and its adversaries.
Once matters had reached this point, the cabinet met on 6 August 1939, reaching the happy solution to not convene a parliamentary congress at that time and to put into force the chapters of the budget approved by both councils. The government issued a budget assessment law as approved by the Senate, with removal of the seventh article providing for title deed tax on bequests, without consideration for the House of Representative's financial committee having insisted on it remaining in place.
The cabinet also decided to publicly read the edict to close the parliamentary session following the issue of the budget law, "and thus the government met its goal in avoiding, for the longest period possible, calling parliament to convene, although a call was made to convene a parliamentary congress to solve the dispute between the two councils on the title deed tax on bequests next November."
On 8 August 1939, parliament convened and the words necessary for closing the session were stated. Al-Ahram stated of the Senate session that it was convened in an atmosphere in which anxiety prevailed. Three statements were made in the session. The first was that of the head of the council, Mohamed Mahmoud Khalil Bey. It was a traditional statement, although it included occasional references to the dispute between it and the House of Representatives. Khalil Bey stated that the closed session had outdone its predecessors in its discussions of the constitution and serious issues related to the vital interests of the nation, thus highlighting the council's obvious and significant affect on the parliamentary system and representative life.
Only four days passed following the close of the session when Mohamed Mahmoud Pasha submitted the resignation of his government, which was accepted by the king on 13 August. While newspapers loyal to the regime counted what they considered the magnificent accomplishments of the resigned government, newspapers loyal to the Wafd Party held that the government's supporters wanted to cover up their anticipated catastrophe and yet could find no alternative to acknowledging the reality of the unfortunate situation that had come to be. The important thing, however, is that neither spoke of the "battle of councils", which appears to have ended with the end of the Mahmoud term. This was particularly the case given that the next government was led by the head of the royal cabinet, Ali Maher Pasha, who was well known for his trickery.