Egypt’s newly elected parliament was delegated full legislative powers by the ruling Supreme Council of the Armed Forces (SCAF) on January 24, but lawmakers have begun to assert greater powers and many are claiming the authority to review and challenge military decrees. The developing power struggle between the People’s Assembly and SCAF over whether or not the latter is still entitled to issue decrees without parliamentary approval escalated further on February 13, when members of parliament agreed to refer a proposal to amend the SCAF’s draft presidential elections law to the legislative and constitutional affairs committee.  Last month, the SCAF was reprimanded by parliament for issuing a decree amending the existing presidential law just days before the inaugural session of the People’s Assembly – a move that MPs perceived as a power grab preempting the legislative prerogatives of the newly formed parliament. 

The legal landscape for the upcoming presidential election – which the SCAF has agreed to expedite in the face of rising public pressure – is complicated by a major Supreme Constitutional Court (SCC) ruling on January 18 that preemptively down parts of the draft presidential election law before the SCAF had officially promulgated its decree. In reviewing the constitutionality of the SCAF’s draft law regulating procedures and candidate eligibility requirements for the presidential election, the court’s objected to several passages of the law on the grounds that they violated the Constitutional Declaration promulgated by the SCAF last March. The significance of the decision was not the technical substance of the ruling but rather its reference to the Constitutional Declaration rather than Egypt’s 1971 Constitution as the authoritative legal framework. The decision implicitly endorsed the SCAF’s interim constitution as the law of the land, now clearly invalidated its 1971 predecessor. 

Although the amended law on presidential elections issued by the SCAF last week addresses the SCC’s objections, it still contains one controversial article: Article 8, which corresponds to Article 27 in the Constitutional Declaration, dealing with the powers of the commission that will administer the presidential election: "The commission decisions shall be final, self enforcing and incontestable by any means and before any body whatsoever, its decisions shall not be construed or stayed un-reprieved, also the committee shall decided on its jurisdiction," the law states. Some legal scholars have objected to the formulation of this clause on the grounds that it prevents citizens from appealing rulings that may violate their political rights. Some critics have gone so far as to suggest that the article is unconstitutional, arguing that the right to appeal is constitutionally guaranteed. 

Tensions over the law on presidential elections are playing out in an atmosphere of uncertainty and anxiety over Egypt’s future constitutional framework. Until recently, the SCAF had been pushing for the writing of a new constitution before the presidential election in less than eight weeks, but many political forces have expressed concern that such a short time frame would not allow for a genuinely inclusive and democratic national dialogue over Egypt’s future legal framework. Now that the SCAF has moved up the opening date for the presidential nomination period to March 10, the timeline for drafting a new constitution is even shorter. The 100-member constituent assembly that will oversee the drafting of the new constitution cannot be formed until the Shura Council convenes for its first session on February 28, leaving very little time to write a constitution and submit it to a popular referendum before the next president takes office (expected in June). Now, most political forces are either calling for the constitutional process to be delayed until after the presidential election or for the two processes to unfold simultaneously. The Muslim Brotherhood’s Freedom and Justice Party has taken the latter position, arguing that the Constitutional Declaration does not require the completion of the constitution before the presidential election, and allows for the drafting process to continue after a new civil leader takes office.  

Continued uncertainty about the SCAF’s vague transitional timeline and the sequence events – constitution or presidential election first? – is fueling continued protests and opposition to military rule. Although calls for a nationwide general strike on February 11 fell flat and failed to shut down public services, as activists had hoped, the campaign reflects continued frustration with the vague transitional roadmap, and the SCAF risks losing even more of its already dwindling legitimacy if it fails to clarify the timeline soon. 

Salem Mostafa Kamel is an Egyptian legal advisor to the Carter Center’s office in Cairo and previously worked for the global telecommunications firm, Alcatel-Lucent. He majored in law at Ain Shams University and is currently pursuing a Masters degree in international and commercial law at Indiana University. Mr. Kamel’s views are his own and do not represent the Carter Center. He can be reached at [email protected]. Photo credit: MSNBC.