With the many legal challenges facing Egypt’s coming parliament, even if it is not dissolved by a ruling of the Supreme Constitutional Court, it may still be dissolved by the president. The political system in Egypt’s Constitution is a distorted one, based on the consolidation of the powers of the president at the expense of the other branches of government, and of the parliament in particular. Indeed, true authority in Egypt is not exercised by the parliament as a representative of the will of the people; rather, it is the president who holds supreme authority.
Article 137 of the Constitution stipulates: “It is not permissible for the president of the republic to dissolve the House of Representatives, except when necessary, through a reasoned decision, and after holding a referendum of the people.” Thus, the Constitution grants the president the power to dissolve the parliament, without stipulating when this may occur or detailing what this massive power entails. This power allows the president to abolish a constitutional authority vested with the power to legislate, exercise oversight of the government, and issue the state budget, in addition to a number of other important competencies.
Granting this exceptional power to the president represents a major assault on the principle of separation of powers established in Article 5 of the Egyptian Constitution itself. This principle requires—under a presidential or semi-presidential system—that the dissolution of parliament is not possible under any circumstances. Given this, what is the motivation for granting this power to the president? The drafters of the new Egyptian Constitution chose to maintain the same political system that has been in place since the declaration of the Egyptian Republic in the 1950s, a system based on the supremacy of the president, which places the reins of the political system in his hands. This follows from the belief that this strengthens the underpinnings of the state and ensures its stability. Additionally, placing such exceptional powers with the president entrenches and reaffirms the long-standing idea—held by both the elite and general populace—about the sordid nature of the Egyptian parliament, which has always been viewed as a place that protects special interests rather than representing the people. In contrast, the president has always been viewed as holding supreme authority. Finally, granting the president the power of dissolution provides him with a determinative weapon that can be wielded against the parliament if it is deemed to have overstepped its bounds in opposing the president or blocking his decisions. This would have profoundly negative effects on the ability of the parliament to function and carry out its duties.
Some may defend this constitutional provision by saying that the power of the president to dissolve the parliament is limited by three conditions: that the situation must necessitate the dissolution of the parliament; that the decision dissolving the parliament must be reasoned; and that a referendum must be held to obtain the approval of the people, who are the source of power. In response to this argument, it must be asked: What is the “necessity” that would justify dissolving the parliament and leaving the country without a body to undertake the parliament’s role? Would a serious dispute between the president or the government and the parliament represent such a “necessity”? If this is the case, is it best to resolve such a dispute by completely eliminating one of these two institutions in question – in this case the parliament? Or would it be better to conduct political negotiations to arrive at a compromise, thus upholding the political process, rather than subjecting the country to the intense turmoil that would result from dissolving the parliament? Moreover, historically, Egyptians have never voted “no” to any referendum on any matter, and they are even less likely to do so when the referendum is called for by the president—who holds the highest position of authority—regarding the dissolution of the parliament, which is viewed negatively by the general public.
The second case in which the Egyptian Constitution allows for the dissolution of parliament is described in Article 161. This article, a first in Egypt’s constitutional history, came about as the direct result of the paralyzing political crisis experienced by Egypt during the rule of former President Mohamed Morsi, when a large segment of the population wished to hold early presidential elections and end Morsi’s rule. At the time, however, there were no constitutional provisions to allow for such an option. Thus, the drafters of the new constitution adopted Article 161, which stipulates that the House of Representatives may recommend withdrawing confidence from the president, and hold early presidential elections. According to the article, if approved by two thirds of the members, holding early presidential elections is put to a public referendum. Article 161 concludes: “If the majority [of voters] approves the decision to withdraw confidence, the president of the republic shall be relieved of his post, the position of president of the republic shall become vacant, and early presidential elections shall be held within sixty days of the date on which the result of the referendum is announced. If the referendum is rejected, the House of Representatives shall be dissolved, and the president of the republic shall call for a new House of Representatives to be elected within thirty days of the date of dissolution.”
This article undoubtedly represents a positive addition, as it provides a constitutional framework—at least theoretically—for the removal of the president. However, even more significant is the stipulation that if voters decide against withdrawing confidence from the president, the House of Representatives will automatically be dissolved. The first thing that comes to mind is the direct comparison to Article 137 of the constitution, which stipulates that the president shall have the power to dissolve parliament. However, Article 137 makes no reference to what would happen if the people were to vote against a referendum on a decision by the president to dissolve parliament. The parliament would obviously complete its term, based on the voters’ rejection of the decision to dissolve it, yet this article does not stipulate that the president would be automatically relieved of his post as the result of voters’ rejection of his decision to dissolve parliament. This is contrary to the case outlined in Article 161. Once again, this situation confirms the notion of the supremacy of the president and diminishes the standing and importance of the parliament. The constitution should have stipulated that, in the case that voters vote “no” to a referendum on a decision by the House of Representatives to withdraw confidence from the president, the parliament would continue to carry out its role without being dissolved. Indeed, a popular vote against removing the president from power does not also disqualify the parliament from completing its constitutionally established term. Considering the parliament to be dissolved by force of law, merely because voters have voted against its recommendation to withdraw confidence from the president, represents a threat to the members of parliament that if they attempt to withdraw confidence from the president, they could lose their places within the parliament. This will force members of parliament to weigh the possible consequences of such a step carefully before going forward with it. Meanwhile, the president faces no such threat should he decide to dissolve the parliament, as he is guaranteed to remain in his place no matter the outcome of the referendum on his decision.
In Egypt, all roads lead to the dissolution of the parliament, despite the profoundly negative repercussions for political and legislative stability in the country in general. All legal and constitutional provisions related to the parliament must therefore undergo comprehensive review, in order to ensure that the parliament is elected on sound bases that are clearly defined. Both the law and the Constitution must guarantee – without any loopholes – that the parliament will remain in place and continue to perform its role, uninterrupted, as one of the fundamental institutions of a modern state that seeks to apply the rule of law.
Yussef Auf is a nonresident fellow with the Rafik Hariri Center for the Middle East. His work focuses on Egyptian constitutional issues, elections, and judicial matters. He has been a judge in Egypt since 2007.