by Ahmed E. Souaiaia*
In a couple of days, Morsi will be declared the winner of the presidential contest. Although we just witnessed events that reminded us that nothing is certain in post-revolution Egypt, having a president 15 months after the ouster of Hosni Mubarak will bring some political stability and predictability for the country. But the questions concerning the parliament, the new constitution, and the role of the military in politics will persist.
The Supreme Council of Armed Forces (SCAF) military announced today that it will hold a ceremony by month’s end to hand over powers to the elected president. It will be more accurate to say that the military will be handing over some power, not all powers given its actions in the past 24 hours. In fact, before Egyptians finished voting on the second day the presidential contest, the military gave itself more constitutional powers including:
1. Power to legislate until a new parliament is elected.
2. Power to lead and finance the military (the new president will not be the head of the armed forces).
3. Power to declare war.
4. Power to veto articles of the new constitution.
5. Power to appoint members of the constitutional assembly.
6. Power to intervene in civil matters (crushing protests etc.).
7. Power to preserve and enforce rulings of the current Supreme Constitutional Court (SCC).
These new powers stemmed from the recent SCC ruling that voided the exclusion law and nullified 1/3 of the seats in the parliament. While the first part of the ruling allowed a member of Mubarak’s regime, Ahmed Shafiq, to compete in the presidential elections, the second part was interpreted by the military (and the head of the SCC) to mean the dissolution of the entire parliament. The Muslim Brotherhood’s party, the winner of more than 40% of the seats, is challenging that interpretation and they may have a legal basis to do so.
First, the temporary constitution on the basis of which the presidential and legislative elections were held did not specify who has the power to dissolve the parliament. It is generally odd that a non-elected body could strip an elected body of its authority. Even Article 3 of SCAF’s constitution states supports the supremacy of institutions with popular mandate. Furthermore, if a president is sworn in in the next couple of weeks, his authority should override that of SCAF’s, again on the basis of Article 3 of the provisional constitution. Therefore, conceivably, the president, then could void the addendums SCAF introduced on Sunday.
Second, given that it was SCAF that authorized the rules for the legislative elections, SCAF alone should suffer the negative ramifications of the bad laws they created not the voting public. Furthermore, even if the SCC ruling were to be upheld, it only invalidates one-third of the seats and there is no explicit text in the provisional constitution that stipulates the dissolution of the parliament. The Muslim Brotherhood could challenge the dissolution of the parliament on this ground and insist on convening the parliament short of the holders of the disputed seats and deal with the problem in whatever manner is deems fit. If this were to happen, SCAF’s addendums again will be challenged by force of the standing legislature.
In all cases however, the coming days will determine the fate of democratic change in Egypt and the promise of the Arab Spring altogether.
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* Prof. SOUAIAIA teaches at the University of Iowa. Opinions expressed herein are the author’s, speaking as a citizen on matters of public interest; not speaking for the university or any other organization with which he is affiliated.