Don’t look now, but the Egyptian parliament has been busy over the past two weeks solidifying the power of President Abdel Fattah al-Sisi.
On January 24, Egypt’s new parliament, the House of Representatives, reached fifteen days since first convening on January 10, 2016. Under the Egyptian constitution, this marks the final day in which members of parliament could be presented with, discuss, and ratify the decrees that Sisi and former interim President Adly Mansour issued through executive authority since the ousting of the Muslim Brotherhood from leadership. The list of approved laws was sent to Sisi in anticipation of publication in the Official Gazette.
There were a lot; the House of Representatives considered 330 decrees to discuss and ratify, including the highly controversial anti-terror law, the protest law, and the pretrial detention amendment. There was significant conflict and debate over a number of the laws. And several important constitutional issues arose — though, not all of them overtly — in the process of discussion and ratification.
The House of Representatives ratified most of the 330 laws, with the final list to be released shortly.
The fifteen day deadline is set by Article 156 of Egypt’s latest constitution. The English translation** of the provision reads:
In case an event which requires taking measures, which cannot be delayed, occurs .... if the House of Representatives has not been elected, the President of the Republic may issue decrees having the force of law, provided that they are then presented to, discussed and approved by the new House of Representatives within fifteen days from the commencement of its session. If such decrees are neither presented nor discussed by the House, or if they are presented but not ratified thereby, their force of law shall retroactively be revoked without need for issuing a decision to that effect, unless the House confirms its effectiveness during the previous period or decides to settle the consequences thereof.
[**Note: Author’s translation, as modified from government-provided translation; emphasis added.]
This provision permits the president to take those measures which cannot be delayed. This language requires both that the decree in question be necessary and also that immediate action is necessary such that it cannot be postponed for the new legislature. In essence, Mansour and Sisi held temporary legislative power for the two-year period prior to the election of the new parliament. All of the laws and decrees they issued during that time must now be retroactively approved by the elected parliament. Without parliamentary approval, the decrees lose the force of law. However, Mansour and Sisi’s temporary legislative authority was, in theory, limited to matters of urgent necessity.
Mansour issued forty-two of the 330 laws now put before the new parliament, including the amended pretrial detention law and the controversial protest law. Sisi, for his part, issued more than 263 laws or amendments, including the anti-terror law, which the House ratified with overwhelming support on January 17. It includes also another 114 new laws, and 158 decrees which consolidate the economic bodies’ budgets. The Tahrir Institute for Middle East Policy (TIMEP) developed a legislation tracker which lists most of the laws that were passed prior to January, when the new parliament first met. Before the parliament’s first session, TIMEP has also published detailed explanations of the substance of many of these laws.
The preliminary issue before the parliament is whether these laws were, in fact, fundamentally necessary and required urgent action; if not, it is unclear that the executive had the authority to issue them in the first place. Supports of the use of presidential authority note, reasonably, that Egypt became significantly unstable in August 2013 when the Egyptian military ousted former-President Mohamed Morsi. The current Sisi-led government, noting the peril to the nation, made counterterrorism and the overall stability a primary focus. Therefore, at least some of the laws issued by Mansour and Sisi were likely urgent and necessary in light of the country’s fragile condition.
Despite the state of national affairs, however, many of the laws do not seem to have been obviously or apparently necessary. Among the more controversial laws — now ratified by parliament — is the anti-terror law that some legal analysts argued was not necessary at all, let alone urgently so: the government was well-equipped to address counterterrorism under the law prior to the introduction on the new anti-terror law. And many of the laws which were passed — and have now been approved by the House of Representatives — arguable could have been delayed. For example, a number of law were related to routine economic management, straining interpretations they were both necessary and urgent.
A second constitutional question implicated by the recent deliberations is whether the parliament had sufficient time to evaluate the number of laws in question. Articles 121-122 of the Constitution set forth many of the regulations that govern the House procedures. The provisions require, for example, that a 596-member quorum is required for valid meetings and the passage of resolutions. A two-thirds majority is required for laws that regulate elections, political parties, and the judiciary, or if they relate to judicial bodies and judicial organizations, or if they implicate the rights and freedoms stipulated in the Constitution. Additionally, the Constitution vests the President with significant legislative power, unfamiliar to the U.S. system. Each bill that the government or one-tenth of House members present must be referred to a competent, specialized committee. The specialized committee reviews the proposals and must submit a report to the House, after consulting experts if necessary. However, in order for a bill to be referred to a specialized committee, it must first be permitted by another committee that is responsible for proposals. The proposal committee must set forth a reasoned decisions for rejecting a law. Consider in the US system, if Congress was required to give its reasons for not moving each executive-endorsed piece of legislation.
Each of the 330 laws underwent this process in a fifteen day period, though not all these formailities were extended to decrees. The haste required has raised alarms among analysts. Khaled Abdul Aziz, a Social Democratic Party parliamentarian, complained that members of parliament were given little time to debate the measures, were often prohibited from speaking, and were not notified of which laws would be reviewed prior to the session. In one instance, Aziz stated that the operator — an employee in parliament — overtly directed parliamentarians on how to vote regarding the anti-terror law.
Dr. Mohamed Nour Farahat, a professor of constitutional law at the University of Zagazig and a constitutional jurist said that members of the House of Representatives voted on the laws without discussion, in direct violation of constitutional procedure. This may result in the revocation of those laws, he says. Further, according to Farahat, the Constitution requires discussion and substantive debate, on each article of the law, not only on the overall decree.
Such attention might have been possible in two weeks if only a handful of laws been placed before the new parliament’s desk. But the actual numbers overwhelm the allotted time, in part because of the loose interpretation of what constitutes “taking urgent measures.” Consequently, the 596 members were obligated to substantively debate, in depth, twenty-two laws per day, some longer than 50 pages.
Recognizing the impossible bar this places on meaningful debate, Farahat’s concerns are well-warranted, especially for the many laws concentrating additional power in the hands of the executive at great risk to civil society.