The motives and consequences of legislative intrusion
Egypt's ruling SCAF has been meddling in the legislative process since January - and parliament isn't doing enough to stop it
Nader Fergany , Tuesday 17 Apr 2012
A few weeks before the first session of the elected parliament on 23 January, soon before Egypt's Supreme Council of the Armed Forces (SCAF) handed over legislative powers to the People’s Assembly, the ruling military council issued several laws by decree concerning non-urgent issues. Other, more pressing matters, meanwhile, were ignored for months.
This demonstrates the SCAF's premeditated intention to resolve certain questions before anyone else – who might contradict its preferences – could have a say in them. Essam Sultan, esteemed lawyer and MP for the moderate-Islamist Wasat Party, used the term "period of distrust" to describe this phase, but perhaps the more accurate description would be "period of suspicion," which Muslims are taught to avoid.
They were decisions that suggested the SCAF did not want to relinquish the power it monopolised after the revolution – such were the statements of senior US military and civilian officials who visited the SCAF at the time – or, at least, that it was unwilling to totally give up power until it could ensure that certain legal and political measures were in place to guarantee particular interests. Reviewing these decrees might reveal the SCAF’s priorities.
The first such decree by the military council amended the investment law on 3 January – 20 days before parliament’s first session – that allows conciliation in crimes of appropriation of public funds. The law states that conciliation is permitted with "investors" in crimes described in the penal code. The precondition for conciliation is that the investor should return the funds, possessions, land or real estate that are the subject of the crime, or the equivalent of their market value at the time the crime was committed if it is impossible to return the original asset.
The market value is to be appraised by a committee of experts formed according to a decree issued by the Minister of Justice. It is not the judiciary that opens the door to government intervention on the matter. If a final verdict is issued against the investor, then conciliation is conditional on the above as well as the completion of the financial penalties applied. Once conciliation takes place, the criminal charges against the person in question are thrown out, exempting them from the penalty for the crime committed. The second clause of the amendment cancels all rulings that contradict the provisions of this law.
Readers should compare this urgency and decisiveness with the procrastination, postponement and delays we have seen in issuing a law on corrupting political life – which has never been applied anyway. Clearly, law-by-decree is a legal way out for the criminals associated with the ousted regime, who are now selling their assets to foreigners on the stock exchange even as they sit in jail under the guise of being "investors." The SCAF has consistently shielded them from punishment; even more regretfully, the law favours such swindlers at the expense of the people. These criminals are exempted from having to surrender the profits they made by pillaging public funds.
It therefore comes as no surprise that this law was welcomed by the lawyers defending the crooks in question. Hasty decrees also included an Al-Azhar Law and a Sinai Development Law, implying that the authoritarian regime is keen to control official religious institutions that might otherwise stand in the way of executive power should it become tyrannical. Likewise, the business of regulating development in Sinai: it must not upset the Israeli enemy to whom the regime is bound through a humiliating peace agreement that it closely guards.
Even more suspicious is the issuing of laws-by-decree after the elected parliament began its work and giving them earlier dates, confirming doubts about what is taking place behind the scenes. On 19 January, the official newspapers published the SCAF's decision to issue a decree on Law 12 of 2012 that amends some provisions of Law 174 of 2005 regarding the presidential elections – before it was discussed in parliament, which held its first session only four days later.
The law was not even submitted to the SCAF's advisory council. The decree includes the notorious Article 28, which contradicts all established legal and judicial principles and adopts the decisions of the SCAF-created judicial committee to oversee presidential elections, decisions of which cannot be appealed. Article 28 is copied from Article 76 of the 1971 Constitution, which had been intended to prevent anyone from challenging pre-determined election results under the rule of the ousted tyrant.
No doubt, making the committee’s decisions impervious to appeal flies in the face of the fact that it is an administrative committee under the authority of the executive power – both SCAF and the cabinet. It also contradicts the right to litigation, which represents the cornerstone of any real constitution.
Surprisingly, the chairman of the constitutional court, who was appointed by the Mubarak regime, has declared that it is not allowed to challenge the dubious Article 28. What is surprising is that he is also the chairman of the judicial committee appointed by SCAF to oversee presidential elections. This means that he has a vested interest, and, according to judicial protocol, should have refrained from giving an opinion on the matter.
But even more shocking is the fact that the senior judge implicated in the scandal over the repatriation of foreign NGO workers is a member of the same committee. He was also chairman of the committee overseeing legislative elections and overlooked all the violations that threatened to annul the capture of 50 seats.
An appeal is also underway regarding the constitutionality of the law-by-decree governing parliamentary elections. This verdict was followed by a decision not to include the results of vote counting at branch committees in the presidential elections, and to only recognise results issued by the judicial committee for presidential elections.
We should pay attention to the scandal over the foreign NGO workers and other flagrant tampering in judicial affairs by the executive powers. Strangely, appallingly in fact, parliament’s legislative committee challenged this law-by-decree and actually amended some of its articles, but ignored Article 28. This despite the fact that the committee is chaired by an eminent judge who should be the first to know that exempting a decision from appeal contradicts fundamental legal principles.
The presidential election law also includes an unsound article, Article 33, which allows voters to cast their ballots at any polling station regardless of their residential district. This could open the door to fraud if one of the candidates organised voters to vote for him at more than one station. There are already signs that some candidates are resorting to crooked methods – including bribery – to secure the signatures needed for candidacy. All this suggests that vote rigging could occur in the presidential elections.
MPs should exercise their legislative and oversight mandates to address the shortcomings of these laws-by-decree to make sure that the revolution realises its goals of freedom, justice and dignity. Otherwise, Egypt’s parliament will be party to measures that prevent it from representing the interests of the Egyptian people or protecting the revolution's accomplishments. It will also fail in its duty, mandated by the people, to issue legislation for the sake of short-term gains.