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memri
July 31, 2012 No.
865

The Egyptian Revolution Is Only Starting: Will Power Be Transferred From The SCAF To The Elected President And Parliament?

By: Yigal Carmon and L. Lavi*

 

Introduction

From a historical perspective, the Egyptian people's struggle against the authoritarian rule in the country is still in its early stages. On the face of it, the Egyptian revolution took place with the ousting of president Hosni Mubarak. However, in practice, most of the authorities remained in the hands of his associates, the members of the Supreme Council of the Armed Forces (SCAF), headed by Field Marshal Muhammad Hussein Tantawi. The Egyptians' real struggle to realize the goals of the revolution, i.e., to transform the fundaments of the regime and transfer power from the military dictatorship to the elected president and parliament, is starting only now.

Since winning the presidential election, Dr. Muhammad Mursi has found himself almost without powers, and he is currently seeking ways to consolidate his status as Egypt's ruler and to promote his agenda as far as possible. His first moves indicate that he does not intend to confront the SCAF at this stage, but to share power with it, and to acquire authorities through indirect manipulation rather than open conflict.

In additional to the SCAF, which seeks to retain as many executive powers as possible, and Mursi, who has received a mandate to rule from the people and wishes to implement it, another powerful element in Egypt is the High Constitutional Court. Though this body is officially neutral, it is difficult to ignore the fact that its judges were appointed by the previous regime and that its rulings and their timing have tended to serve the SCAF, rather than Egypt's elected institutions.[1]

Mursi's attempts to assume executive powers have been hesitant, inconsistent and populist, and he has been quick to back down and cooperate with the dictates of the SCAF and the judiciary. The struggle to grant him more authority is being waged by the Muslim Brotherhood (MB) movement, which, unlike him, is not bound by protocol and can afford to confront the SCAF and the judiciary system; however, its struggle has also seen little success so far. As part of their struggle, Mursi and the MB are trying to protect the Constituent Assembly against attempts to dissolve the body, which is charged with the task of drafting Egypt's new constitution. This body is the last stronghold still left to the MB, and is highly important because it has the ability to make far-reaching changes and transform the power balance between the various branches of government.


SCAF chairman and MB General Guide prepare to duel
[2]

What will be the nature of the struggle between the military dictatorship and the president and parliament? Will the SCAF give up its power without the people having to take to the streets again to fight for the realization of the revolution? Will the MB prefer to cooperate with the military authorities rather than confront them? The answers to these questions will be revealed in the coming months.

This report reviews the efforts of the SCAF to strip the president and parliament of authority, and the efforts of Mursi and the MB to restore these powers.[3]

Powers Of President And Parliament Curtailed

Several days before the outcome of the presidential election was announced, the SCAF issued a "supplementary constitutional declaration" redefining the powers of the president and the relationship between the state institutions, and setting a new timeline for the interim stage. This declaration has constitutional status until the approval of a new constitution defining the division of power between the branches of government. The declaration grants the SCAF a number of exclusive powers in matters pertaining to the armed forces and national security, and limits or revokes some of the authorities of the president and the parliament, as follows:[4]

Limiting The Powers Of Parliament

1. The legislative powers of the People's Assembly.

On June 14, 2012, the High Constitutional Court ordered the dissolution of the People's Assembly (the lower house of the Egyptian parliament), most of whose members were Islamist MB representatives, on the grounds that its election had been unconstitutional. The court ruled that the Election Law, based on which the People's Assembly had been elected, contravened the equality clause in the Egyptian Constitution, since it gave an advantage to party candidates over independent candidates competing for the same seats.[5] The supplementary constitutional declaration states that the SCAF shall assume the legislative authorities of the People's Assembly until a new Assembly is appointed.

2. The right to swear in the president.

Article 30 of the declaration states that in a situation where the People's Assembly is dissolved, the president will be sworn into office in front of the High Constitutional Court.

Limiting The Powers Of The President

3. 3. The right to serve as commander-in-chief of the armed forces.

Article 53 of the declarations states: "The current head of the SCAF is to act as commander-in-chief of the armed forces... until a new constitution is drafted."

4. The exclusive right to decide all issues pertaining to the armed forces and to national security.

Article 53 says: "The incumbent SCAF members are responsible for deciding on all issues related to the armed forces, including appointing its leaders and extending the terms in office of the aforesaid leaders."

On June 14, 2012, it was reported that Tantawi had decided to reestablish the National Defense Council as the exclusive authority in matters of national security. The Council will be headed by the president, and will also include the prime minister, parliament speaker, and foreign, finance, and interior ministers. In addition, it will comprise 11 senior military officials, including the head of the SCAF, the commander-in-chief of the armed forces, the defense minister, the army chief-of-staff, the head of General Intelligence, and the heads of the main army corps. All decisions by this body must be approved by an absolute majority of its members, which means that the military officials have power of veto.[6]

5. The exclusive right to declare war.

Article 53/1 states: "The president can only declare war after the approval of the SCAF."

6. All the authorities granted to the defense minister by law, as well as the right to appoint a new defense minister.

Article 53 states: "The current head of the SCAF is to act as... minister of defense until a new constitution is drafted."

7. The right to appoint members of the SCAF.

The president does not have the authority to change the makeup of this body.

8. The right to order military forces to suppress internal unrest.

Article 53/2 states: "If the country faces internal unrest which requires the intervention of the armed forces, the president can issue a decision to commission the armed forces to maintain security and defend public properties – with the approval of the SCAF."

In a separate decision, the SCAF has also granted itself the right to manage the office of the president, and has appointed the chief attaché to supervise the finance and management committee in the president's office.[7]

Powers Relating To The Drafting Of The New Constitution

10. According to the supplementary constitutional declaration, the SCAF has the right to dissolve the constituent assembly if the latter cannot meet its goals.

Article 60B reads: "If the constituent assembly encounters an obstacle that would prevent it from completing its work, the SCAF within a week will form a new constituent assembly to author a new constitution within three months from the day of the new assembly's formation. Within 15 days of its completion, the newly-drafted constitution will be put forward for approval by the people through a national referendum..." Preparations for new People's Assembly elections will begin one month later.

Article 60B1 states that "if the president, the head of SCAF, the prime minister, the Supreme Council of the Judiciary, or a fifth of the constituent assembly find that the new constitution contains an article or more which conflict with the revolution's goals and its main principles, or which conflict with any principle agreed-upon in Egypt's former constitutions, any of the aforementioned bodies may demand that the constituent assembly revise this specific article within 15 days. Should the constituent assembly object to revising the contentious article, the article will be referred to the High Constitutional Court, which will then be obliged to give its verdict within seven days."


The SCAF plucks the feathers of the president elect.[8]

Attempts By Mursi And The MB To Combat The SCAF's Decrees

The Struggle To Restore The People's Assembly

Mursi's position on the People's Assembly was hesitant and indecisive. After his victory in the elections, he declared that he would respect the Constitutional Court's ruling to dissolve this body, but implied that he would seek out legal ways to cancel the SCAF's orders to implement the verdict. In his unofficial swearing-in ceremony at Al-Tahrir Square, Mursi told the massive crowds that he objected to the dissolution of the People's Assembly and the restriction of the president's authorities, saying: "I stress my objection to any attempt to take the reins of power from the people or its representatives... After the processes mandated by law, which I appreciate and respect, there will be no room to usurp the rule of the people, and I do not have the right to neglect any authority or role that you have granted me."[9]

In his speech at Cairo University after his inauguration, Mursi said: "The elected institutions will resume fulfilling their duties." Mursi's spokesman later clarified that he did not mean that the People's Assembly would resume its duties, but rather that the matter would be examined legally.[10] In a meeting with newspaper editors following his victory and before being sworn in, Mursi said: "We must respect the [court's] ruling [ordering to dissolve the People's Assembly], even though I am not happy with it..."[11]

However, one week later, Mursi decided to reconvene the People's Assembly. On July 8, 2012, he issued a presidential decree which canceled its dissolution and renewed its activity with all authorities defined in the constitutional declaration of March 30, 2012.[12] Following this decree, on July 10, 2012, the People's Assembly convened for a ten-minute session.[13] However, the very next day, the Constitutional Court ordered to cancel President Mursi's presidential decree. Mursi announced that he would honor the ruling, since he wished to maintain proper relations between the authorities and prevent any confrontation. The MB, on the other hand, harshly attacked the Constitutional Court and claimed that it was acting politically. The MB intensified its protests to revoke the supplementary constitutional declaration and to reconvene the People's Assembly.[14]


Mursi breaks the lock placed by Tantawi on the People's Assembly building.[15]

Fighting The Supplementary Constitutional Declaration

Wishing to appear a law-abiding president, Mursi was forced to comply with the supplementary constitutional declaration. He therefore grudgingly accepted the dictates of the declaration, which required him to be sworn in by the Constitutional Court rather than the dissolved People's Assembly. However, in order to please those who called him to oppose it, Mursi held an additional inauguration ceremony in Al-Tahrir Square on Friday, June 29, 2012, where he said that he swears fealty to the people first:

"You [the people] are the supreme source of rule and legitimacy... No man or institution supersedes [the people's] will... This nation is the source of authority... There is no authority above this authority... Yours is the authority and the will. You are the source of this rule... That is why I have come before you today... after you gave me your support... I have come to renew this promise and remind you that you alone will be my point of origin, and I will always seek your support, after that of Allah.

"Are you prepared... to obtain our full rights, [and] your full rights? No one will detract from them, whoever he may be; not one of your rights [will be denied] as long as this is your desire, Allah willing. I stand before you, the magnificent Egyptian people – which supersedes any other element and any other step – and say...: I swear to Allah and I swear to you... to loyally protect the rule of the republic, to honor the constitution and the law, to fully protect the people's interest, and to maintain the independence of the homeland and the integrity of its territory..."[16]

Mursi conveyed conflicting messages in his victory speeches regarding the ruling authority of the SCAF. In his speech at Cairo University, after being sworn in before the Constitutional Court, Mursi said: "The mighty Egyptian military will once again be free to focus on its mission of defending the safety and borders of the homeland."[17] On the other hand, in his speech at the ceremony in which the SCAF transferred power to him, he said: "I receive the [mantle] of power from General Tantawi and my brothers in the SCAF. I accept the [task] of being responsible for them as I am for the entire people... Do not leave your roles at this stage, because the homeland needs you. I have complete faith in your means, abilities, training, knowledge, and in the honorable Egyptian military history. None of your rights will be harmed."[18]

At the same time, Mursi is searching for legitimate and legal means to fight the supplementary constitutional declaration and revoke it. The MB is running the popular campaign against the declaration, including by holding a long-term sit-down strike in Al-Tahrir Square, in addition to several mass protests that have been held since the declaration was published. The MB's Freedom and Justice Party is pressing Mursi to issue a new declaration that would cancel the supplementary constitutional declaration issued by the SCAF.[19] It is still unclear whether Mursi has the authority to take such a step.


SCAF Member: "Is that move legal?" Mursi: "According to which rules – yours, or the rules of the game?"
[20]

Mursi And The MB Fight Dissolution Of Constituent Assembly

Since the revolution, the political forces in Egypt have been unable to agree on the makeup of the constituent assembly. The first such assembly was appointed by the Egyptian parliament. Half of its members were MPs, and a noticeable majority of representatives were from the Islamic streams. It was dissolved in April 2012, after a court ruled it unconstitutional because of the high percentage of MPs in it. The present committee was established close to the presidential elections, and likewise has a noticeable majority of representatives from the Islamic streams, which has led several representatives from secular streams to withdraw from it.

This assembly has been hard at work, but its position is precarious. Several lawsuits have been filed demanding its dissolution on various grounds, such as that it does not represent all streams in society, and that it still includes MPs, in violation of its intended non-parliamentary character. In addition, as mentioned above, the SCAF reserves the right to dissolve the assembly and replace it if it cannot meet its goal.

Mursi and the MB have taken several steps to prevent the dissolution of the present constituent assembly with its Islamic majority, and the formation of a new assembly without such a majority. With the lawsuits demanding the dissolution of this assembly still pending, Mursi has approved the law defining the criteria for its makeup, in a bid to protect it against dissolution by the Administrative Court, and give it time to complete its task before the lawsuits are transferred to the High Constitutional Court. Concurrently, four assembly members who are also delegates in the Shura Council (on behalf of the MB and Al-Nour parties) resigned from the assembly in order to preempt the court from dissolving it based on their presence.[21] If the court still decides to dissolve the assembly, the MB will demand to bring the decision to referendum.[22]

It should be mentioned that there are unconfirmed reports on a deal between the SCAF, Mursi, and the MB regarding the division of ruling power. According to these reports, the SCAF has agreed, for the time being, to forego its authority to dissolve the constituent assembly, providing that 10 Islamist members are replaced by SCAF-approved technocrats.[23] This reshuffle has yet to take place.


The Islamist stream attempts to hijack the constituent assembly.[24]

Forming A Government

One of the exclusive powers retained by the president is the formation of the government. However, the SCAF has guaranteed itself a foothold here as well. As mentioned above, according to the supplementary constitutional declaration, the head of the SCAF is to serve as defense minister. In addition, according to unconfirmed reports, the SCAF and Mursi have reached an understanding that the MB will appoint the foreign and finance ministers, and the SCAF will appoint the interior and justice ministers.[25]

It should be mentioned that the MB and SCAF admit to having discussed the transfer of power in the week prior to the announcement of the presidential election results; however, they deny the existence of a "deal" between them.[26] For the time being, Mursi has appointed Hesham Qandil to form a new government, but its makeup is still unclear. Qandil, who is not politically associated, served as minister of water resources in the Essam Sharaf and Kamal Ganzouri governments.[27]

U.S. Administration Attempts To Strengthen Mursi

The U.S. administration appears to be supporting Mursi in his struggle to attain his rights from the SCAF. While the High Elections Commission was tallying the votes in the presidential election, and debating appeals regarding violations and exceptions in the voting process, claims were already being made that the U.S. had secretly pressured the SCAF to declare Mursi president, encouraged the negotiations between the MB and SCAF regarding a division of power, and even made an alliance with the MB.[28]

It is also possible that the U.S. supported Mursi's decision to reconvene the People's Assembly in violation of decisions by the Constitutional Court and the SCAF, since the step was taken shortly after Mursi's meeting with Deputy Secretary of State William Burns.[29]

The U.S. support for Mursi was especially apparent in statements by U.S. Secretary of State Hillary Clinton during her visit to Cairo on July 14, 2012. While Clinton met with both Mursi and Tantawi, she called to grant the president his full authorities so he could successfully establish democracy in the country. Clinton also called on the military to resume its role of maintaining security. However, she added that Egyptians needed to settle the constitutional and parliamentary crises themselves. U.S. President Obama's spokesman rushed to clarify that Clinton's statements must not be seen as interference in Egypt's internal affairs, and that her meeting with Tantawi had been friendly.[30]

* Y. Carmon is President of MEMRI; L. Lavi is a research fellow at MEMRI.

 

Endnotes:

[1] An example is the High Constitutional Court's June 14, 2012 ruling in favor of dissolving the elected parliament. However, the tension between the judiciary system and the parliament did not start with this ruling. In mid-May 2012, the parliament discussed a draft bill to reformulate the Constitutional Court, which sparked rage in the judiciary system. Al-Masri Al-Yawm (Egypt), May 16, 2012. The parliament also directed harsh criticism at the judiciary over the sentences in the trials of Mubarak and his associates, which it considered too lenient. The criticism, in turn, evoked an enraged response from the president of the Appellate Court. Al-Quds Al-Arabi (London), June 5, 2012.

The Constitutional Court's decision to approve the presidential candidacy of Ahmad Shafiq, who is considered a Mubarak loyalist, likewise contributed to the resentment felt by the Islamist majority in the Egyptian parliament, and to its claims that the court's rulings are political.

[2] Image source: masress.com.

[3] On the future of the Egyptian revolution, see also MEMRI Inquiry & Analysis Series No. 663, "Chronicle of a Doomed Uprising: The Egyptian Revolution as a Microcosm of the Arab Masses' Quest for a Share in Power and Resources," February 7, 2011, Chronicle of a Doomed Uprising: The Egyptian Revolution as a Microcosm of the Arab Masses' Quest for a Share in Power and Resources.

[4] Al-Ahram (Egypt), June 18, 2012.

[5] Whereas under Mubarak, the People's Assembly was open only to independents, after the revolution, various political forces pressed to amend the law by reserving only a third of the seats for independents, and the rest for candidates running on closed party lists. This amendment was meant to keep former NDP members, whose party no longer existed, from entering the assembly as independents. The court ruled that this law discriminated against independent candidates, who have less resources at their disposal than party candidates, and also because only some 6% of Egypt's 50 million eligible voters are members of a party. Al-Ahram (Egypt), June 15, 2012.

It should be noted that the upper house of parliament, the Shura Council, whose election was based on the same law, and which also has a majority of MB representatives, was not dissolved, because the appeal that led to the dissolution of the People's Assembly did not refer to it. Since then, several appeals to dissolve it have been submitted, but the court has yet to rule on them.

[6] Al-Ahram, Al-Masri Al-Yawm (Egypt), June 19, 2012.

[7] Al-Masri Al-Yawm (Egypt), June 20, 2012.

[8] Image source: islamstory.com.

[9] Al-Masri Al-Yawm (Egypt), June 30, 2012.

[10] Al-Dustour (Egypt), July 1, 2012.

[11] Al-Ahram (Egypt), June 29, 2012.

[12] Al-Ahram (Egypt), July 8, 2012.

[13] Al-Ahram (Egypt), July 10, 2012.

[14] Al-Masri Al-Yawm (Egypt), July 12, 2012.

[15] Image source: klma.org.

[17] Al-Ahram (Egypt), July 1, 2012.

[18] Al-Masri Al-Yawm (Egypt), July 1, 2012.

[19] Al-Masri Al-Yawm (Egypt), July 18, 2012.

[20] Image source: 25janaer.blogspot.com.

[21] Al-Ahram (Egypt), July 16, 2012.

[22] Al-Masri Al-Yawm (Egypt), July 16, 2012.

[23] Al-Masri Al-Yawm (Egypt), June 27, 2012.

[24] Nasrawysat.com.

[25] Al-Masri Al-Yawm (Egypt), June 27, 2012.

[26] Al-Masri Al-Yawm; Al-Shurouq (Egypt), June 24, 2012.

[27] Al-Ahram (Egypt), July 25, 2012.

[28] Al-Watan (Egypt), June 26, 2012; Roz Al-Yousef (Egypt), June 30, 2012; Al-Ahram (Egypt), July 18, 2012.

[29] Al-Ahram (Egypt), July 9, 2012.

[30] Al-Masri Al-Yawm (Egypt), July 15, 2012.