Egypt: Who holds the power?

The dispute between Egypt's new President, Mohammed Mursi, the Supreme Council of the Armed Forces, and the Supreme Constitutional Court over the dissolution of parliament has raised questions about where power lies in the country.

Supreme Council of the Armed Forces

On 17 June, the Scaf issued an interim constitutional declaration amending the 30 March 2011 declaration promulgated following the overthrow of Hosni Mubarak. The decree came two days after the generals had decided to dissolve parliament in line with a Supreme Constitutional Court ruling that the law governing the recent elections was unconstitutional. Islamists, secularists and liberals said the two moves constituted a "military coup". The generals had until then promised to hand over power to a civilian administration by 30 June, when the new first democratically elected president, Mohammed Mursi, was sworn in. They instead remain firmly in control.

Field Marshal Tantawi, President Mursi and Army chief Gen Sami Enan are treading carefully

Perhaps the most controversial part of the interim constitutional declaration restores all legislative powers to the Scaf until a new parliament is elected. A sub-clause of Article 56 of the March 2011 declaration had put the generals in charge of legislation, but that responsibility ended when the newly elected lower house, the People's Assembly, convened in January. The generals decided in June that the dissolution of parliament required them to fill the void. The Scaf also retains control of the military budget and also the national budget until parliament reconvenes.
Article 53 of the March 2011 declaration was meanwhile amended giving the Scaf responsibility for "all issues related to the armed forces, including appointing its leaders and extending [their] terms in office". The current head of the Scaf, Field Marshal Mohammed Hussein Tantawi, is to act as commander-in-chief of the armed forces and minister of defence until a new constitution is drafted. The amendment also states that the president can only declare war with the approval of the Scaf, and gives the president the power to deploy the armed forces to maintain internal security and defend public properties. Nathan Brown of the Carnegie Endowment for International Peace says the military's internal security role "amounts to a standing authorisation... to invoke martial law".
The third major amendment of the March 2011 declaration - concerning Article 60 - authorises the Scaf to form a new 100-member constituent assembly to draft Egypt's permanent constitution. If the president, the head of the Scaf, the prime minister, the Supreme Council for the Judiciary, or a fifth of the constituent assembly object to an article in the draft constitution, they can demand its revision. Many believe this clause is designed to allow the generals to veto any attempt by the assembly to impose civilian controls on the military or curtail its business interests.

President

President Mursi is likely to be given significant authority by the Scaf, especially in administrative and domestic affairs, but exercising that authority in most areas will likely require him to negotiate with the generals, according to Nathan Brown.

President Mursi has sought to challenge the generals' powers since taking office

Under the March 2011 and June 2012 constitutional declarations, Mr Mursi will be able to appoint his prime minister and cabinet - with the exception of the defence minister, which is reserved for the head of the Scaf until a new constitution has been approved. There do not appear to be any legal or constitutional restrictions on the appointments, and they will be no parliamentary oversight or accountability until fresh elections are held. However, Mr Brown believes that with the Scaf "always lurking in the background", the president is unlikely to feel free to select a cabinet of his own choosing. Mr Mursi may also face political pressure from both his allies and opponents.
It is also unclear whether the president's assent will be necessary for legislation to become law while parliament is dissolved. Mr Brown says one clause of the June interim constitutional declaration grants the Scaf all legislative authority, while another requires presidential approval, and a third allows the cabinet to draft legislation. Some of the generals have suggested they will be sending legislation to the president for his assent.
Since taking office, Mr Mursi has sought to directly challenge the Scaf's powers with two separate decrees - the first created a committee to investigate the killing of protesters during the 2011 uprising, while the second challenged the generals' decree dissolving parliament.
One significant question remains about the length of the new president's term in office. The March 2011 constitutional declaration fixes it at four years, but some Scaf members have suggested that there should be a fresh presidential election once the new constitution is approved.

Parliament

The lower house of parliament, the People's Assembly, was tasked under the 30 March 2011 constitution declaration with determining the "public policy of the state, the general plan for economic and social development, and the public budget of the state". It was also supposed to oversee the work of the executive branch.

The dissolution of the Islamist-dominated People's Assembly triggered mass protests

However, on 15 June the Scaf issued a decree dissolving the People's Assembly, a day after the Supreme Constitutional Court found the law that governed Egypt's first democratic elections in more than six decades unconstitutional. The court ruled that party members should not have been allowed to contest the one third of the seats designated for independents. The Muslim Brotherhood's Freedom and Justice Party (FJP) won several 235 seats in the People's Assembly by running candidates for individual seats, as did the ultraconservative Salafist Nour party.
On 17 June, the Scaf issued an interim constitutional declaration that gave it all legislative powers until a new parliament is elected. The decree also gave the generals power to form a new constituent assembly to draft the new constitution, replacing the 100-member panel which had previously been selected by parliament. The make-up of the constituent assembly had proved controversial, with liberals, youth activists, secularists and Christians complaining that it was dominated by Islamists and did not reflect the diversity of Egyptian society. A compromise was eventually reached but then parliament was dissolved. The generals, president, prime minister and judges can now also demand the revision of articles in the draft constitution.
Nine days after taking office, President Mursi unexpectedly issued his own decree ordering the People's Assembly to reconvene, challenging the Scaf's decision to dissolve it. Mr Mursi called on the generals to respect a popular will that was expressed through free elections. He said he was not ignoring the Supreme Constitutional Court because fresh elections would be held a month after the new constitution was approved, but it responded by insisting its decisions were "final and not subject to appeals". The Scaf meanwhile said its decision to dissolve parliament was imposed by "necessity and the political, judicial and constitutional circumstances the country is going through". Legal experts note that even if the lower house was allowed to sit, its ability to pass laws would be in doubt given the court ruling that led to its dissolution.
It is unclear whether the upper house, the Shura Council, was affected by the Supreme Constitutional Court's ruling or the Scaf decree, as its elections were separate to those of the People's Assembly. The Shura Council is a consultative body that only gives its opinion on issues and draft laws suggested by the president and the government.

Supreme Constitutional Court

The Supreme Constitutional Court decides cases in which the constitutionality of a law or regulation is challenged. The judges on the court have been accused of being Mubarak appointees, though only the current president, Farouq Sultan, was directly chosen by the former president. The others were generally nominated by the court itself and then approved. The person who will succeed Judge Sultan when he retires this summer was selected by the court from among the three most senior members, in line with a law amended by the Scaf last year.

The president of the Supreme Constitutional Court, Farouq Sultan, is set to retire this summer

Nathan Brown says the court's autonomy varied considerably under Mr Mubarak, and that its reputation and record for independent action has declined over the past decade. "What justices on the SCC tend to share, despite diverse orientations, is a strong sense of mission to the law and abstract constitutional principles," he adds. "In a sense, their attitude is analogous to that of the Scaf, though the comparison might offend some of them: senior judges, like senior generals, see themselves as guardians of the public interest and the interests of the state, and therefore as above politics, democratic mechanisms, and accountability."
Mr Brown says the court's ruling on the constitutionality of the election law was not shocking, but the speed and timing - only days before the presidential election run-off - was. In 1987, the court ordered the dissolution of a parliament elected in 1984; and in 1990, it ordered the dissolution a parliament elected in 1987. Each time, the dissolution came only after a popular referendum approved them.