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Morsi decree sets Egypt presidency, judiciary on legal collision course

President Morsi's decree reinstating parliament's lower house triggers tripartite legal battle between Egypt's executive, judiciary and military council

Salma Shukrallah, Nada Rashwan and Zeinab El-Guindy, Wednesday 11 Jul 2012
Morsi with SCAF
In this photo released by the Egyptian Presidency, Egyptian Prime Minister Kamal el-Ganzouri, left, Field Marshal Hussein Tantawi, second left, President Mohammed Morsi, third left, and Chief of Staff Sami Anan, fourth from right, attend a ceremony at an Air Force base in in Cairo, Egypt, Tuesday, 10 July 2012. (Photo:AP)
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A new chapter in the power struggle between Egypt's Muslim Brotherhood and the military council appears to have entered a dangerous new phase. With a Brotherhood-affiliated president, a constitutional addendum that the Brotherhood refuses to recognise, and a dissolved lower house of parliament, the looming battle, say analysts, will likely be fought in Egypt's high courts.

Egyptian President Mohamed Morsi abruptly issued a decree Sunday afternoon ordering the dissolved People's Assembly (the lower house of Egypt's parliament) to resume its legislative activities. The move triggered a wave of criticism that Morsi had "violated the rule of law" by doing so.

Tuesday's HCC verdict rejecting Morsi's presidential decree has poured fuel on the fire in the ongoing power struggle between Egypt's new president and the military council – and the role played by the judiciary therein.

"I can't tell whether Morsi's decree will escalate matters with the judiciary – it's too early to tell," said prominent judge and legal expert Tarek El-Bishri. "But it certainly represents an escalation with the military council."

El-Bishri, who had been a member of the committee tasked with drafting a raft of post-revolution constitutional amendments (approved via popular referendum in March of last year), told Ahram Online that Morsi’s decree reinstating parliament represented a "violation" of the constitutional addendum issued by the military council last month, rather than a violation of the HCC verdict.     

"The 8 July presidential decree doesn't recognise the constitutional addendum; it only mentions the 30 March 2011 and the 13 February 2011 constitutional declarations," said El-Beshry. This, he added, was a sign that "the president did not recognise the 17 June constitutional addendum."

Moreover, while last month's constitutional addendum had stated that elections for parliament's lower house should be held 30 days after ratification of a new constitution, Morsi’s decree changed this time period to 60 days. The addendum also gave the military council full legislative powers at parliament's expense, before Morsi's decree wrested it back.

El-Bishri says the new president was right not to recognise the military council's constitutional addendum. "The military council never had the authority to issue the addendum in the first place," he asserted.

On Tuesday, at the first meeting of the People's Assembly since its reinstatement, Parliament Speaker Saad El-Katatni – a leading member of the Muslim Brotherhood’s Freedom and Justice Party – announced plans to refer the HCC ruling overturning Morsi's decree to Egypt's Court of Cassation, in line with last year's 30 March Constitution Declaration.

He went on to assert that parliament would not resume its activities until the Court of Cassation delivered its verdict. According to Article 40 of the March 2011 Constitutional Declaration, any legal dispute regarding the membership of parliament's upper and lower houses should be settled by the Court of Cassation.

On Monday, meanwhile, the HCC reiterated its assertion that it represented the "sole arbiter" in all disputes relating to the implementation of its own decisions. The following day, it issued its ruling overturning the president's decree.

Political analyst Ayman El-Sayad, for his part, told Ahram Online that the president’s decision should be evaluated within a political – not legal – context. He stressed that the main aim of Morsi's decree had been to deprive the military council of legislative authority.  

"Morsi could have either left legislative powers in the hands of the freely-elected People's Assembly or in the hands of a military council appointed by the ousted regime," said El-Sayad. He went on to note that, from a liberal perspective, "the right choice is obvious."

Qadry Saeed, a prominent expert in political and military affairs, similarly opined that Morsi's move was more political than legal in nature. "Morsi's decree provided the president with an opportunity to prove to his supporters that he had not been stripped of his powers," he said.

Immediately following the president's decree, El-Katatni declared that the assembly would assume its full legislative and regulatory responsibilities. But according to Saeed, this remains to be seen. 

The 17 June constitutional addendum gave parliament’s legislative powers to the military council until the election of a new parliament. But with Morsi's decree on one hand, and the HCC verdict annulling it on the other, it still remains unclear which side will end up assuming lawmaking powers.

Morsi is currently on a state visit to Saudi Arabia – his first trip oversees as Egyptian head of state – so the presidency's next move is not expected before his return.

Other observers, meanwhile, believe the brewing conflict between the Brotherhood and military council may be exaggerated.

"What we're witnessing now between the military council and Brotherhood is a power overlap," political analyst Wahid Abdel-Meguid told Ahram Online. "In such a situation, the relationship between the two actors is defined by conflict and cooperation."

According to Abdel-Meguid, the conflict began with the debate over which state institution Morsi should be sworn into office before.

Days before his inauguration, several Brotherhood officials repeatedly denied that their candidate would take the oath of office before the HCC, which, they said, would be tantamount to his acceptance of the controversial constitutional addendum (which, along with granting the military council significant powers at the expense of parliament and the presidency, also stipulated that the president-elect be sworn in before the HCC).

The day of Morsi’s inauguration, HCC General Assembly member Tahani El-Gebaly told the media that Egypt's new president did not want his oath to be televised – again indicating Morsi's reluctance to do anything that might suggest acceptance of the addendum.

Abdel-Meguid suggested that Morsi’s decree represented an attempt by the Brotherhood to recover the leverage they forfeited when Morsi was sworn in before the constitutional court.

According to Saeed, the real confrontation between the Brotherhood and judiciary "will erupt if Morsi refuses to abide by the HCC ruling against his decree reinstating the People's Assembly."

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