Egypt: A parliamentary coup

Cairo, 25 March 2012

Egypt:

A parliamentary coup

The Arab Center for the Independence of Judiciary and the Legal Profession (ACIJLP( is deeply concerned over parliamentary action of the Egyptian parliament issued on Sunday, March 25^th, 2012 to form a Constituent Assembly to establish the first permanent constitution for Egypt after the 25^th January Revolution. The Constituent Assembly is composed of - according to the resolution - a hundred a 100-member panel, 50% of the panel members from inside the parliament both the people's Assembly and Shura Council, and 50% from the trade unions, bodies and public figures.

The ACIJLP believes that this parliamentary action that does not live up to the level of legislation, is a deviation from the real path of legislation real and "reflects" the control of the majority of parliament on matters that should have been governed by legislation. This decision represents a severe risk to the future of the constitutional institutions and puts the country in front of unprecedented situation. Furthermore, this decision breaches Article 60 which states that "the MPs should elect members of the constituent assembly to draft the constitution". Thus, the constitutional legislator entrusted parliament to elect members of the constituent assembly only, so that parliament should establish rules and criteria for selecting members of the constituent assembly in which the members of parliament should be voters and not to be elected by the constituent assembly.

The ACIJLP also believes that this decision is considered a parliamentary coup witnessed by Egypt, represented by the acquisition of the majority of the parliament to the formation the constituent assembly in order to draft the Constitution according to its ideology and political trends, a matter which is inconsistent with the fact that the Constitution is a document which must be issued in accordance community consensus  in which the constituent assembly should include many intellectual and political groups and accurately reflect the entire spectrum of Egyptian society taking into account the geographical distribution and equality, not to be formed according to the political majority of a certain political party that may represent the majority during this period and may not represent it in the upcoming parliamentary elections.

The ACIJLP points out that the dominance and monopoly of the parliamentary majority over the election and formation of the Constituent Assembly could threaten the powers of the executive and the judicial authorities. Moreover, the Legislative Authority may have the power to determine the political system and the regime either to be a presidential which expands the powers of the president or parliamentarian which makes the parliament the upper hand in the regime and the formation of the government.

The ACIJLP is astonished by the fact that those who have elected the Constituent Assembly become the candidate and voter at the same time which represents a violation to the applicable Articles regarding the selection of the members of the Constituent Assembly.

This decision raises many legal issues that could lead to the fall of the Constitution after its promulgation, and threatening the constitutional institutions of the State particulary there are several judicial appeals on the validity of membership of many current members of Parliament, in the case of invalidity of a member, the Constitution will be threatened. In addition, the Supreme Constitutional Court reconsider an appeal regarding the unconstitutionality of certain articles of the people's Assembly which is also threatening the new Constitution if the Court determine the unconstitutionality of certain articles of the people's Assembly's law. This threat may lead to the dissolution of parliament; especially since Egypt's Supreme Constitutional Court issued judgments in this regard resulted in the dissolution of parliament Council.

In the constitutional regard, the ACIJLP points out that – as the Supreme Constitutional Court stated – the dominance and monopoly of the parliamentary majority over the election and formation of the Constituent Assembly is unacceptable politically or constitutionally because the Constitution is a national consensus document which should not be peculiar to the majority of the political parties and the majority of the political parties today may be the minority tomorrow but constitution is a permanent document because of the Constituent Assembly is higher than the other authorities organized by the Constitution, including the parliament.

The ACIJLP calls upon the Egyptian parliament to immediately reverse its decision, which represents violation to the legislation. The ACIJLP also calls upon the election of the Constituent Assembly from outside the People's Assembly and Shura Council, to ensure the existence of a Constituent Assembly which brings together all spectrums of society and to draft a constitution which does not take into account the political and partisan interests.