Egypt Independent

Powers of elected parliament remain unclear

The next parliament may end up being short-lived, but it is mandated with a crucial task: partially writing the country’s next constitution and, more importantly, picking the committee that will do much of the framing of the document. For this reason, voters, candidates and electoral observers are placing great emphasis on the ongoing parliamentary elections.

The task of picking the committee that will draft the constitution was set out in Article 60 of the Constitutional Declaration of March 2011, which states that within six months of parliamentary elections of both the People’s Assembly and the Shura Council, these bodies will “elect a provisional assembly composed of 100 members that will prepare a new draft constitution for the country, to be completed within six months of the formation of this assembly. The draft constitution will be presented within 15 days of its preparation to the people, who will vote in a referendum on the matter.”

But how long will this parliament survive beyond the drafting of a new constitution?

“The new constitution could stipulate changes to the parliamentary system that would require the sitting parliament’s immediate dissolution, as that parliament would become unconstitutional when the constitution is approved. However, it is likely that the parliament will include a provision guaranteeing their status until the next elections, at least,” said Vice President of the Cassation Court Ahmed Mekki.

Mekki’s predecessor, Mahmoud al-Khodairy, had a different view. “The new constitution will be put to a referendum, and if it includes major changes to the parliamentary laws or the composition of the parliament, then the parliament must be dissolved,” he explained.

Even candidates running in the current elections are divided over whether the parliament should stay in place after the constitution is drafted or should be disbanded. “The mandate of this parliament is to draft a new constitution. That is why it is important. I decided to run because I wanted to participate in the drafting process,” said Emad Gad, a candidate for the Egyptian Social Democratic Party.

Bassel Adel, a candidate for the Free Egyptians Party, disagreed vehemently that the parliament should be dissolved after drafting the constitution. “I’m against the immediate dissolution of the parliament, even if I’m not in it,” he said. “This parliament will be the protector of the constitution, and going through the whole voting process again so soon would place an incredible burden on the country.”

Adel believed that the parliament would insert an article into the constitution protecting its status because most MPs would not agree to hold office for only one year, especially after the long campaigning process. He added that disbanding the parliament and forming a new one after a president is elected would work against any future parliament, as the president could influence the outcome of parliamentary elections in his favor.

“You need a free parliament to balance the powers of government,” he said.

Debating the supra-constitutional principles

Recently however, political forces — chief among them the Muslim Brotherhood, which seems set to do well in the current elections — have been at loggerheads with the government over another document, the supra-constitutional principles drafted by Deputy Prime Minister Ali al-Selmy, which lay out articles pertaining to the composition of the provisional legislative assembly. The Brotherhood mostly contested the description of the state as “civil” in the document, which was eventually replaced by the word “democratic.”

For non-Islamic political factions, the most troubling provisions are Articles 9 and 10, which stipulate that the civilian government will have little to no oversight of the armed forces and their budget. The articles outlining the criteria for the formation of the constituent assembly that will draft the new constitution are also raising the ire of political parties.

According to the provisions, 80 out of the minimum 100 members of the constituent assembly must be from outside the People’s Assembly and Shura Council, meaning that the two legislative bodies may only have 20 members on the committee. Additionally, Selmy’s document states that if the constituent assembly fails to complete the constitution within six months, the Supreme Council of the Armed Forces (SCAF) may then form a new assembly.

Gad said the document was not unworkable, calling it an “excellent document we can agree on,” so long as “Articles 9 and 10 pertaining to the status of the armed forces and the articles regarding the formation of the constituent assembly are amended.”

Another article that has inflamed political opinion against the document is a provision stating: “[If] the draft constitution prepared by the Constituent Assembly includes one or more provisions that are contrary to the basic tenets of the state and of Egyptian society, to the rights and public freedoms which have been provided for in successive Egyptian constitutions, including the constitutional declaration issued on 30 March 2011 and the constitutional declarations that were issued since, the SCAF, given that it holds the powers of President of the Republic during the transitional phase, will require the Constituent Assembly to reconsider such provisions within a maximum period of fifteen days.”

If the assembly does not accept the SCAF’s decision, then the matter will be referred to the Supreme Constitutional Court, whose ruling will be binding for all parties.

Fate of the parliament

Some experts and observers are concerned about the state of the upcoming parliament, especially because it will be formed from a mixed single-winner and list-based electoral process. “Because these are the first elections and political parties are not powerful on the ground, and the list-based system rarely produces a cohesive parliament, the coming parliament will be fragmented,” says Negad al-Borai, a lawyer who specializes in electoral systems. The repercussions of this fragmentation are yet to be known.

Khodairy predicted that the parliament, even if dissolved after the constitutional referendum, might stay in power for two to three years. “We don’t know how long the transition process will take. There’s a presidential election coming up, and the parliament, as the main legislative body, must maintain the country’s affairs.”

Meanwhile, the new parliament will have important legislative functions to perform, including redrafting and replacing laws unilaterally issued by SCAF.

Mekki argued that, as a result of the transitional phase Egypt is currently in, an important function of parliament is “removing some of the SCAF’s legislative powers. The parliament must diminish the SCAF’s authority in the legislative branch of government as they also hold the executive power of the president.”

The SCAF, however, has made it clear that the new parliament will have no say in cabinet formation. In a statement issued on Saturday, SCAF member Mamdouh Shahin reiterated that the upcoming parliament will have no power to dismiss a SCAF-appointed cabinet, just a day after the contentious appointment of Kamal al-Ganzouri as prime minister. Ganzouri, who served as prime minister under toppled President Mubarak, has not been welcomed by many politicians and activists.

Borai, however, thinks the parliament will be able to exercise some control over the cabinet. “In reality, parliament may pass a vote of no-confidence regarding the cabinet, therefore bringing down the government,” he said.

“If the parliament ends up being weak, that's our fault because we chose it. I can't say that the system has changed, but we have more opportunities now than we did in 2005 and 2010. The coming parliament will be chosen by the people,” Borai concluded.