• 21:49
  • Wednesday ,21 March 2012

Constitutional confusion is at root of conflict btwn govt powers

By-Nader Fergany



Wednesday ,21 March 2012

Constitutional confusion is at root of conflict btwn govt powers

 In the past few weeks, controversy has erupted over the relationship between the three branches of government – the legislative, executive and judicial – because of several issues of dispute. Most prominently, the scandal involving the spiriting of foreign nationals out of the country while they still faced criminal charges in Egypt in the case of foreign-funded NGOs, especially since the decision to lift the travel ban that had been placed on them was issued by a judicial body that did not have the authority to decide on the matter, and was hastily formed, at night, to issue a predetermined decision.

After discussions in parliament and the poor performance of the executive power – the Supreme Council of the Armed Forces (SCAF) and its cabinet – and the Supreme Judicial Council regarding the controversy that rightfully angered honourable members of the judiciary and parliament, a controversy erupted in the political arena over the following: Does the elected People’s Assembly have the right to withdraw confidence from the government? Does parliament have the right to intervene in the affairs of the judiciary? Does the executive power – namely SCAF and its government – or the legislative power have the right to interfere in the affairs of the judiciary?
The fundamental presumption here is that the logical outcome of this dispute – which harms the authority of the state and the interests of the people – is constitutional turmoil created by the mismanagement of Egypt’s transitional phase after the great people’s revolution of January 2011.
The SCAF suspended the constitution that had been in place when the revolution erupted for a compelling reason – namely, to strip the incumbent parliament at the time of its authority and annul the handover of executive power by the tyrant to that parliament.
The SCAF followed this with a referendum on some constitutional amendments, focusing on holding parliamentary elections and the requisites for presidential elections before writing a new constitution. It is as if the authority of the state in Egypt, like in most authoritarian regimes, is confined to the person of the president.
The referendum was subjected to religious temptation and intimidation that claimed that voting “yes” guaranteed entry into heaven. Some simple people thought, and still do, that the referendum was only concerned with Article 2 of the constitution, which states that Islamic Law is the source of legislation – which is far from the truth. The referendum was also subjected to worldly temptation and intimidation that claimed that voting “yes” meant a vote for stability. Ironically, this is the same argument that the ousted tyrant’s propaganda machine spewed out when he nominated himself in fictitious elections in the past.
In the end, the referendum approved the constitutional amendments by an overwhelming majority as a result of the aforementioned propagandists. The constitutional situation in Egypt became murky and unclear since the amended texts are not sufficient to govern a complex modern state, and the former constitution now hangs between activation and suspension. Some of the leadership and society still refer to it intermittently, since it is viewed as a fundamental constitutional reference.
The SCAF continued to issue legal decrees that encourage political monopoly and give most of the seats in coming legislative bodies to those who are better organised and have more funds – mostly led by political Islamic groups – while the remainder of the state’s constitutional framework is in shambles.
Then the SCAF proposed a solution for constitutional chaos, which was no less ambiguous and inconclusive, by issuing a constitutional declaration that included the nine articles that were put in the referendum, after distorting some of the wording and adding more than 50 articles that the people did not give their opinion on. Since constitutional provisions have no power without the approval of the people, this constitutional declaration has no power except for the eight articles that the people approved in the referendum; that are included in the constitutional declaration in their original wording.
To state it even more clearly, had the SCAF and its aides and advisers adopted the proper fundamental path of writing a new constitution first instead of the path they chose with obstinacy and arrogance, the new constitution would have defined how the state’s powers would be established and what their boundaries are, in order for the state to function smoothly and efficiently to achieve the public good. Instead, the focus was to enable political Islam to dominate the political arena as quickly as possible, and confining the essence of governance to the person of the president who has absolute powers that corrupt absolutely. This is stipulated in the constitutional declaration, and the SCAF was keen to retain these reins in its hands. All this prevailed over the requisites for safe transition to proper democratic governance after the glorious people’s revolution.
What then should happen whenever a constitutional issue erupts in light of the constitutional mayhem under the rule of the SCAF during the interim period, such as those mentioned at the beginning of the article? We should adopt established constitutional rules, a few of which are included in the constitutional declaration while others are found in the suspended constitution.
According to these guidelines, and the text of the constitutional declaration itself, an elected parliament has the right to oversee the executive power. This goes beyond oversight of the government, but also includes the SCAF as the incumbent head of the executive power since the great people’s revolution. However, parliament has not yet dared – because of political understandings reached behind closed doors – to exercise its right to monitor the head of the executive power. Nothing can stop an elected parliament from exercising its power in withdrawing confidence from a SCAF cabinet according to established constitutional norms of parliament’s oversight of the executive power.
Although in its constitutional declaration the SCAF retained for itself the absolute powers of the president – in one of the articles that was not approved by the people and should never have been included in a genuinely democratic constitution – withdrawing confidence from a cabinet by a large majority of elected MPs forces the prime minister to submit his resignation, according to the basic rules of democracy. If he does not resign, the chairman of the SCAF should relieve him of his duties.
But for the crisis to be resolved in the form of a political deal outside the realm of the elected political body, and based on political gains, opportunism and blind obedience in political-religious organisations, is an assassination of the democratic spirit that all parties should have avoided so that their positions reflect their recurrent rhetoric of respecting proper democratic governance.
As for interference in judicial affairs, this is an issue that I will discuss in my next article. Briefly, I want to state that the absolute independence of the judiciary is one of the fundamental cornerstones of proper democratic governance. This comprehensively bans interference by the executive power in judicial affairs, especially since intervention by the executive in the judicial has always been a tool of authoritarian rule to undercut the principle of the rule of the law above everyone. It is also a gateway to corrupting the judiciary and some judges in order to consolidate authoritarian rule and protect corruption.
This is risky for two reasons: first, justice is a cornerstone of proper democratic governance; and second, the most crooked are people of the law when they are corrupted.
The relationship between the judiciary and an elected parliament is more complicated. The independence of the judiciary intuitively means banning parliament from interceding in cases under deliberation, but the legislative and oversight mandate of parliament includes the judiciary.
Hence, there is no objection to parliament looking into legislation regulating the judiciary. Neither is there harm in parliament overseeing the performance of the judiciary since it is an institution of the state, especially when there is suspicion of executive interference – such as the aforementioned case of foreign funding, and others.