Morsi provokes Constitutional Crisis in Egypt by recalling Parliament

Egyptian President Muhammad Morsi tried to steal third base on Sunday, announcing that he was calling back into session the dissolved Egyptian parliament. It would continue to meet, he said, until new parliamentary elections, to be held within 60 days of the completion of the new constitution. He thus took on both the Supreme Court and the officer corps, setting the stage for a face-off.

The law under which the parliament had been elected was found unconstitutional by Egypt’s Supreme Court in mid-June, and it found that the body was null and void as a result. The Supreme Council of the Armed Forces (SCAF) then ordered the parliament dissolved. It later scheduled new parliamentary elections for late 2012, after a new constitution is crafted. SCAF also rather weirdly declared that in the absence of a legitimate civilian parliament, its 22 officers would serve as the legislative branch of national government until the new constitution was in place and a new parliament could be elected.

I personally think that this attempt to replace the parliament was intended to give SCAF the right to appoint and oversee the constituent assembly that will draft the new constitution, so as to be in a position to safeguard the prerogatives of the military and to forestall a total Islamization of the constitution.

Morsi decreed that the parliament elected late last fall continue to meet until a new one was elected. This decree puts him in the position of trying to overrule the Supreme Court as well as trying to overrule SCAF.

It also gives Egypt two national legislatures at the same time, the military and the civilian. Or more likely it is intended as a way of making the military go back to its barracks, since with a civilian executive, legislature and judiciary, there is no real room for SCAF in governance.

The parliament had appointed a constituent assembly to draft a new constitution. It has continued its work, but SCAF has asserted that it has the prerogative of dismissing current members and appointing 100 new members to complete this task. If the civilian legislature that appointed the original constituent assembly is revived, does that forestall SCAF from proroguing it and appointing a new such body by military fiat?

Given that the Freedom and Justice Party of the Muslim Brotherhood and the Nur Party of the hard line fundamentalist Salafis have a majority in parliament, a reinstatement of this parliament would allow the Brotherhood to pass fundamentalist laws and have their fellow Brotherhood member, Morsi, quickly sign off on them.

Some Egyptian observers believe that this move threatens a confrontation between Egyptian secularists and the religious forces, and that there could be social violence over it, or even a military coup.

Egypt is therefore even more engaged in a high wire act than before.

The story begins with the 1971 constitution, from the old socialist period, which contained:

Article 87

The law shall determine the constituencies into which the State shall be divided and the number of elected members of the People’s Assembly must be at least 350 persons, of whom at least one half shall be workers and peasants elected by direct secret public balloting. The definition of worker and peasant shall be provided by law. The President of the Republic may appoint a number of members not exceeding ten.

This constitution did not assume a multi-party democracy, and the election of working class independents was intended to be a form of direct democracy.

Over time, however, in the late Sadat period (1970-81) and in the tenure of Hosni Mubarak (1981-2011), multiple political parties became more prominent in Egyptian political life, even though in Mubarak’s time the National Democratic Party always got the vast majority of seats. The half of seats dedicated to workers and peasants thus became associated with the idea that they should be preserved for independents, i.e. candidates not backed by parties. Mubarak connived at putting NDP members into those seats, and the Supreme Court ruled against him in 1987 and 1990, though parliament was not dissolved because that was a presidential prerogative that he did not exercise. Mubarak dragged his feet till the next stacked, compliant parliament was elected.

In summer of 2011, SCAF limited the seats dedicated to independents to one third instead of half, having been pressured by Egyptians who were afraid that Mubarak loyalists would dominate the independent seats. Then SCAF amended the law to allow party-backed candidates to run for the independent seats. Since the National Democratic Party had been dissolved, the idea was that this step would put remaining Mubarak loyalists at a disadvantage. A lot of people at that time were mainly worried about a return of the old regime.

In late March of 2012, SCAF issued a rump interim constitution, which mainly consisted of selected articles from the 1971 constitution, including article 87, verbatim.

An independent candidate who had to try to compete with party-based candidates sued after the elections were held in November and December, and the Supreme Court found that the SCAF amendments allowing parties to contest the one third of seats reserved for independents was prejudicial to the independents, especially since Egypt has only 3 million members of political parties, so that most voters are independents.

In short, the court found that the SCAF amendment under which the elections were conducted was unconstitutional (ironically, article 87 now only existed in the military-issued rump constitution of late March):

[The Court concluded that] the elections for Parliament were conducted on the basis of texts that have [long] been deemed unconstitutional by this Court. [See SCC collection of decisions, vol. 4, decision of 19 May 1990] The entire establishment of Parliament is null since the elections, which means its effective disappearance under the force of law since that date, without need for any further measure. This is the result of the unconstitutionality of the laws mentioned, and the application of the absolute and universal effect of decisions in constitutional cases, binding on all [citizens] and on the state in its various powers in accordance with Article 49 of the Law of the SCC.

Some observers keep saying that the Supreme Constitutional Court did not actually dissolve parliament. It most certainly did, mandating “its effective disappearance.” Spokesmen for the court after the decision made clear that the court was dissolving parliament.

Just to be on the safe side, apparently, SCAF then also dissolved parliament.

The Muslim Brotherhood argued at the time that the Supreme Constitutional Court had the right to find that the one-third of seats set aside for independents had been improperly elected, but did not have the judicial or executive authority to order parliament’s “effective disappearance.” The practical steps that should be taken, they said, should have been left to the administrative courts or to the new president as an decision of the executive. ( See Nathan Brown’s excellent description of the controversies in mid-June.)

In essence, Morsi simply gave effect Sunday to that Brotherhood argument of mid-June.

Interestingly, however, Morsi now accepts the Supreme Court/ SCAF contention that the ruling does require new, early parliamentary elections. The main point of difference is whether the old parliament should remain in session in the meantime.

Since parliament is usually in recess in summer, and always during the fasting month of Ramadan, which is approaching, it is unlikely that Morsi’s resurrected parliament will even meet very much. His call for parliament to reconvene is a symbolic attempt to clip SCAF’s wings and to assert his powers as the elected president against their continued junta.

So he is trying to steal third base. The question is whether SCAF and the Supreme Court will risk trying to get him tagged out. And whether the spectators and fans will rush the field and riot.

6 Responses

  1. Strikes me this may be a “use it or lose it” decision. Since the strategy of the SCAF is to whittle away, water-down, and wait-out the trend toward civilian control, Morsi needs to mobilize and exercise the people power, or at least press for everything he might be able to negotiate, before that influence is dissipated.

    It’s otherwise a necessary, but bad assumption, that the enthusiasm we’ve been seeing can be sustained. In general, it is them with the deeper commitment, and the long game, who endure, and I expect this will be the case here as well. The SCAF, in this game, is now in the position of making a comparable offsetting move that does NOT energize the civilian opposition; if it cannot continue to exchange relatively peaceful moves, and instead attempts to exercise brute force, the real underlying issue of civilian v. military control is forced.

  2. It certainly seems smart, if not inspired, to allow the confrontation between military v. civilian now rather than after the structure of Egypt’s governance congeals. Despite the Islamophobic fear of Muslim Brotherhood, which you have gratefully pointed out itself to be a political minority, it seems the vision that Mohamed Morsi may possess regarding an all-inclusive governance has huge potential to let Egypt become the leading light in the Middle East. And I can see how a military might displace the voice of other represented minority voices.

    I have to add, however, I’m confused regarding the “Constitutional Crisis” as you put it, as I had thought it (the Constitution) yet to be formulated pending the current Provisional Constitution/review committee’s work? And is the review committee the only authorized and single author of what will become the Egypt Constitution?

  3. what is the legality of a court hired by a corrupt deposed dictator? where was this court when the dictator was hiring and firing parliaments while clapping for him. where was this court when the dictator imprisoned his political rivals? why are all the losers from the parliamentary and presidential elections now so much in reverence of this court? This is becoming a cluster tuck where the only solution is a coup against the military and the court by Morsi, the brotherhood, the April 6th youth, the salafis. They tried the nice way but its algeria all over again!

    • “why are all the losers from the parliamentary and presidential elections now so much in reverence of this court?”
      As people seem to have pointed out, I would think that strategically, it would be in their (virtually all other bodies) long-term best interests to support Morsi now in order to have a much more potent constituency themselves after the dust settles?

      I can see that the courts (and ethical military) would have some fear of a general anarchical and chaotic outcome by relinquishing their control, while seeing the point that the way it is currently going it is much more likely to catalyze it. But in the end does it work or befit an authentic democracy if the people’s will is suborned by abstractions, military controls, and legal interpretations that ultimately undermine the original good that asserted the people’s fairly chosen minds and voices? It seems we have some great degree of that like problem in the U.S. as well, though it far more an issue of corporate moneyed political influence and control rather than the military, per se.

      • Could not agree more. What is shocking tom is the short shortsightedness of the Egyptian liberals and secularists. The enemy of my enemy is NOT necessarily my friend. Especially if he has been proven to be a complete dirt bag! I guess that is why Mubaraks people and the military have been able to retain so much power(shafiq got 48%). Everyone is just looking out for thier personal interest and the hell with the national good ie.. civilian goverment.

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