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Egypt's Brotherhood, SCAF locked in delicate dance over constitutional legitimacy

Egypt's Constituent Assembly, tasked with drafting a new constitution, has become a central element in the ongoing battle of wills between the military and Egypt's new Islamist president

Dina Samak , Sunday 15 Jul 2012
Constituent Assembly
Constituent Assembly (Photo: Reuters)
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Only 48 hours before a scheduled court verdict on the legality of the Constituent Assembly – tasked with drafting a new constitution – Egypt's quasi-ruling Supreme Council of the Armed Forces (SCAF) denied media reports that it planned to unilaterally dissolve the body.

"We ask the media to be more cautious when quoting members of the military council," a military source told Egypt's official news agency MENA. He went on to deny recent reports quoting council member General Mamdouh Shahin as saying that the SCAF would dissolve the assembly if the courts deemed it illegal.

"The Constituent Assembly is resuming its work; in fact, it is making successful efforts towards drafting a new constitution," the military source added.

But the future of the controversy-dogged assembly does not seem as bright as this statement implies. With Egypt's Administrative Court expected to issue a verdict on the legality of the mechanisms used to form the assembly, political parties – especially those of the Islamist variety – are reportedly considering a Plan B.

Essam El-Erian, vice chairman of the Brotherhood's Freedom and Justice Party (FJP), stressed that the SCAF's alleged threats to dissolve the assembly had only one possible explanation, namely, "that there is already a new constitution sitting on the SCAF's desk" drafted by Mubarak-regime loyalists, El-Erian declared via Twitter.

"Egyptians should elect members of the new Constituent Assembly; they should not have it imposed on them against their will by the military council," he added.

According to the constitutional addendum issued by the military council last month (only one day after the dissolution of parliament's Islamist-led lower house), the SCAF has the power to dissolve the assembly if it "encounters obstacles that prevent it from completing its work" (Article 60B). According to these terms, the SCAF could draw up a new assembly, since parliament – legally mandated with forming the assembly – was dissolved by a 17 June court ruling.

If the court declares the Constituent Assembly unconstitutional, it will be the second assembly to be annulled by court order. The first assembly, members of which were chosen by Egypt's elected Islamist-led parliament, was dissolved after Egypt's High Constitutional Court (HCC) declared it unconstitutional in April.

Fears of a last-minute move by the SCAF to take over the constitution-drafting process – after its seizure last month of legislative authority – are not confined to the likes of El-Erian.

Amr Darag, secretary-general of the current Constituent Assembly, expressed similar fears when the Administrative Court brought forward the date – from 4 September to 17 July – on which it would deliver its ruling on the assembly's legality.

"The assembly is uncomfortable with the court decision, which we must view within the context of the political dispute that Egypt is currently witnessing," Darag said. "The only way out of this political dilemma is for the Constituent Assembly to finish drafting the constitution so that all the country's authorities know their respective roles."

On Sunday, President Mohamed Morsi was reported to have approved a law that assesses the performance and formation of the Constituent Assembly. The presidential office announced that the law – which was also endorsed by parliament's dissolved lower house – was ratified by the president on 12 July. The move was not announced, however, until 15 July.

Morsi's move was seen by many observers as another move in the ongoing legal chess game between the country's two chief loci of power: the SCAF and the Brotherhood-held presidency.  

"Morsi's ratification of the law actually annuls the lawsuit that the Administrative Court is currently examining," said Wahid Abdel-Magid, the Constituent Assembly's official spokesman. "Formation of the assembly is no longer an administrative decision to be taken by parliament, but rather a law that must be dealt with accordingly."

According to the Egyptian judicial system, the Administrative Court cannot rule on respective laws' constitutional legitimacy – this is the purview of the HCC. This, says Abdel-Magid, means the assembly has bought itself a bit more time in which to finish the work of drafting a new national charter.

Abdel-Magid, an independent MP and political analyst, had earlier told the Nahar television channel that the he believed the Constituent Assembly was being dragged into the ongoing political dispute between the presidency and the SCAF. In about three weeks, the assembly plans to hold a general meeting to discuss new constitutional articles based on proposals by the assembly's various sub-committees.

Many liberal and leftist parties, meanwhile, don't see the Constituent Assembly as being representative of all segments of Egyptian society. In fact, many would even welcome its dissolution so as to pave the way for a new assembly that they believe would better reflect Egypt's political and social diversity.

If the HCC in coming days or weeks decides to dissolve the Islamist-led assembly, these parties would not oppose the decision. Indeed, many liberal and leftist parties have already begun boycotting assembly meetings.

"But not being happy with the formation of the current assembly or its performance does not mean that political parties will be satisfied with the SCAF assuming power over the constitution-drafting process," said Ayman Nour, liberal politician and assembly member.

Nour went on to explain that, while he himself does not welcome Islamist monopolization of the political sphere, "the constitution is a civil issue that should be settled by civilians."

If the judiciary decides to dissolve the current Constituent Assembly, a Brotherhood source told Ahram Online, it would likely open a new front in the confrontation between "revolutionary forces – including the Brotherhood – and the SCAF."

After attending a meeting between the Brotherhood's authoritative Guidance Bureau and the FJP's executive committee, one anonymous Brotherhood source said the group's plan was to "demand that Morsi issue a new constitutional declaration to replace the 17 June constitutional addendum that would grant the president the right to form a new Constituent Assembly and give him full legislative powers until a new parliament is elected 60 days after public endorsement of a new constitution."

"A new constitutional declaration could be the only way out of this mess," Mohsen Rady, member of parliament's dissolved lower house and leading FJP member, was quoted as saying after the aforementioned meeting. "However, this cannot happen without political consensus between all Egyptian political forces."

Yet this sought-after "political consensus" remains a wild card that the Brotherhood and its democratically-elected president still lack – at least for the time being.

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