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‘Dodged’ decrees raise doubts over constitutionality - Daily News Egypt

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‘Dodged’ decrees raise doubts over constitutionality

As parliamentary reviews those decrees passed during its three year absence, issues have arisen as to the interpretation of Article 156 of the 2014 constitution

The review procedures of passing laws in the House of Representatives applied Sunday by Parliamentary Speaker Ali Abdel Aal have raised concerns on the constitutionality of the laws passed.

MP Khaled Abdul Aziz, member of the Egyptian Social Democratic Party (ESDP), complained about not being given the floor when MPs requested to speak. “There was an unjustifiable distribution of the floor and the speaker often disregarded MPs demands to speak,” he told Daily News Egypt Monday.

Abdul Aziz claimed that there were attempts to prompt MPs to vote. “For instance when the law on terrorist entities came up, the operator, a parliament employee, directed MPs by telling them that he believes the law should obtain a majority of approvals,” he said.

As to the regulations governing MPs requests of the floor, Abdul Aziz explained that all requests are to be sent to the parliamentary speaker before the commencement of the day’s session. However, MPs have received notification of the decrees to be discussed during parliamentary sessions with little time allowed to prepare for debate on the floor or to issue a request to speak.

When speaking to Daily News Egypt an hour before the commencement of Monday’s session, Abdul Aziz had not received Monday’s session schedule which announces those decrees to be addressed.

The parliament is supposed to approve and pass almost 340 laws within 15 days, due to a constitutional article that has been the source of various interpretations within the parliament and by constitutional law experts.

Article 156

Article 156 of the constitution addressed the parliament’s role in the case of urgent decrees issued during its absence. There has been varying interpretations as to difference between a decree invested with force of law issued in a time of urgency and a decree that attempts to outpace legislative authority.

The first situation, as stipulated in Article 156, paragraph one, is as follows: “In case an event which requires taking urgent measures, which cannot be delayed, occurs while the House of Representatives is not in session, the President of the Republic shall call the House for an urgent meeting to present the matter thereto.”

Since the dissolution of the former parliament in 2012, Egypt has not had an elected parliament. Therefore, the current parliamentary situation would fall under the stipulations outlined in Article 156, paragraph two: “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 [sic].”

According to constitutional law expert Mohamed Nour Farahat, the text is clear on the procedures of reviewing decrees that have the force of law by the parliament.

“The constitution said present [the decrees], discuss, and approve,” Farahat explained. “As so, sham discussions of the laws violate the constitution. And by the way, the actual discussion of a law is supposed to occur on each and every article of it.”

In Article 156, paragraph three, the constitution provides conditions in the event that the parliament does not address and discuss within 15 days those decrees issued during its absence: “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 of the further issuance of a decision to that effect, unless the House confirms its effectiveness during the previous period or decides to settle the consequences thereof”.

According to Farahat, paragraph three provides grounds for the revocation of all those laws that are not properly discussed, and which would then be understood as unconstitutional.

“Laws passed without serious discussion inside the parliament will be automatically annulled. Then if I present a legal case under any of those laws in court, I shall argue that the law was never really issued because of not having constitutional legitimacy,” Farahat said.

Farahat contends that the article’s phrasing— “In case an event which requires taking urgent measures […]”—delimits the scope of review to only those decrees pertaining to emergency law.

“I believe that the only emergency law needed in the absence of the parliament were those related to countering terrorism as well as transitional laws needed for the election of the president and the parliament,” he said. “Other than that, decrees issued could have waited until the parliament election.”

MPs have reported that in order to review the quantity of decrees to be reviewed in the allotted time, the parliament has distributed the decrees among 19 internal committees, inside which decrees were “carefully” discussed.

With the paucity of video footage made available to the public as a result of the  television broadcast ban issued shortly after the parliament convened, it is difficult for the public to know exactly what is happening inside the parliamentary sessions.

However, in a video broadcast Sunday evening on the Dream channel’s “10 O’clock” programme, Parliamentary Speaker Abdel Aal was seen reading the title of the decree to be voted on, and then limiting the floor’s debate of the law to “one supporter and one opponent”.

MP Ahmed Samih rejected claims of “unconstitutionality” and said that each of the 19 committees presented full reports on each decree assigned to them. “We also obtained a copy of those reports. The parliamentary speaker offered discussion. Some were discussed between two or four people,” he said.

However, Farahat rejected the justification by stating that the constitutional article addressed the parliament as a whole and not sub-committees, interpreting the article as mandating that discussion of decrees must take place among all MPs. “What is happening is nothing but contempt of the constitution and the people,” he said.

Legal debate

During Sunday’s session, Parliamentary Speaker Ali Abdel Aal tried to clarify conflict surrounding Article 156 by guaranteeing MP-debate on the floor in an attempt to avoid violations of the constitution.

However, Abdel Aal’s words have not translated into a change in parliamentary procedure as most decrees that appeared on the floor were either not discussed or discussed between one supporter and one opponent with the exception of the decree allowing the presidential office to dismiss the heads of regulatory bodies.

In a prolonged interview with Daily News Egypt Monday, Farahat considered Abdel Aal’s approach to be a manipulation of the constitution, calling the review of decrees currently occurring “fake discussions” that jeopardise the constitutionality of the laws.

“For instance, if the political and electoral laws are passed in the same way, I would argue that neither the president nor the parliament who were brought to power by those laws have legitimacy anymore,” he said.

In opposition to the current parliamentary practice, Farahat identified two aspects that should be integral to the review of each decree to ensure its constitutionality. In the first case, discussion should be concerned with the purpose of the decree and its principles. Secondly, MPs should discuss each article of each law.

It is important not to make allowances for expedient parliamentary discussion despite the daunting workload that the MPs face, according to Farahat. Rather, he contends that a more advisable course of action to address the current parliamentary situation would be to address prolong the period of review.

“The speaker could have addressed the legislative committee at the State Council, explaining the impossible situation, demanding their constitutional opinion on whether or not the parliament must strictly abide by the 15-day term and I personally believe the answer would have been no,” Farahat said.

When asked about the reason for the two-week period mentioned in the constitution, he said the article had not been changed from previous constitutions. Farahat contends that the writers of the constitution assumed that the number of decrees would not exceed a number that would be easily address in a 15-day period. “Nobody imagined that there would be over 300 decrees issued,” he said.

An additional course of action, according to Farahat, would have been to organise an election for the heads of the 19 review sub-committees whereby the distribution of decrees would have been in accord with each committee’s speciality, instead of a “random designation and appointments of committee heads”.

As so, the parliament could have approved or rejected the principles of the decrees within the first 15 days. More detailed discussion could have then been reserved for a permanent session.

On the other hand, legal specialist Ramadan Bateekh interpreted the situation differently, rejecting claims of unconstitutionality. “Usual legal procedures in presenting laws require the discussion of their articles in detail but I don’t see this applying to the current parliamentary situation,” he told Daily News Egypt.

Bateekh argued that Article 156 did not explain the term “discuss” and therefore left the method of discussion up to the parliament.

The debates mostly raised questions about the extent of independence of the legislative authority after over two years of being managed by the executive power. Farahat claimed that “it looks like the parliament is executing orders to pass the laws”.

Similarly, former president of the State Council Mohamed Hamed El-Gamal ruled out arguments of unconstitutionality but admitted that the constitutional article put the parliament in trouble.

“My solution to the issue is the one the parliament adopted; divide the laws among internal committees; issue recommendations and notes on laws; pass or reject the different laws during parliamentary sessions; then, look into recommendations of amendments to the laws,” he told Daily News Egypt.

El-Gamal stressed expediency over authenticity, calling the discussions “quick” rather than “fake”.

“The parliament’s hands are tight because the state needs to legitimise and implement many laws that address the ongoing issues of the country and that is also the parliament’s goals.”

Additional reporting by Hoda Badry

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