Mirror Mirror on the Wall: WHO IS THE FAIREST OF THEM ALL? The Court, the Palace or the Barracks?

The grade is a passing grade, but there are no flying colors!!

The month of June 2012 witnessed three historic events in Cairo:

First: The Supreme Constitutional Court issued a judgment casting constitutional doubts upon the legal basis for electing one-third of the lower house of Parliament. In Egypt there are three high court systems: The Supreme Constitutional is charged with reviewing the constitutionality of laws; the Court of Cassation is the highest court of appeal from judgments rendered by lower courts; and High Administrative Court is a court of appeal from administrative, executive decisions taken by any government administrative authority.

Second: On the basis of the decision of the Supreme Constitutional Court, whose judges are all appointees of the defunct Mubarak regime, the Supreme Council of the Armed Forces (SCAF) dissolved the Islamist-led Parliament. That was before SCAF, as per its prior pledge, surrendered all of its executive powers on June 30 to the newly-elected President, Dr. Muhammad Morsi.

Third: With the departure of SCAF from governance, which it assumed since the ouster of Mubarak, President Morsi issued a presidential decree calling the dissolved Parliament into session. By that decree, the President, who ran in the May elections as the Muslim Brotherhood candidate, nullified SCAF's order of parliamentary dissolution. Simultaneously, Morsi's decree put the legality of the judgment of the Supreme Constitutional Court in doubt.

So who is the fairest of them all? The Constitutional Court, the presidential decree, or the SCAF order of dissolution? To answer these questions, a million people marched, each to his or her tune; countless constitutional lawyers entered the fray; and writers, most of whom seem to have little training in conflict of laws, penned down long opinions about who is legally right and who is legally wrong; and judges, in a country where the judiciary since the days of the pharaohs are nearly at par with religious authorities, got also in the act.

While the SCAF maintained discreet silence except to admonish that no one was above the law, the Constitutional Court reaffirmed its earlier judgment. But Morsi, in an attempt to soften the blow of his decree, said through a spokesman that his decree is intended to find a legal mechanism for putting the contested judgment into operation.

Responding to the presidential decree, 347 members of the People's Assembly, the lower house convened in their chamber for only 20 minutes, while 161 members did not show up. Gavelling the lower house into session, Dr. El-Katatni, its spokesman/presiding officer/Islamist, the House referred the controversial judgment to the Court of Cassation to determine "the mechanism for implementing the Constitutional Court decision."  Then it adjourned, after transferring its legislative powers to Morsi pending Cassation's decision (Egypt's permanent constitution is still being drafted).

The move thus accomplished a number of primary objectives of the Morsi Administration: it bestowed on Morsi temporary legislative authority. A banned House of Representatives cannot legislate while its legitimacy is in doubt. It also manifested at least a pro forma respect for the judiciary and the laws. It reframed the judicial question into one of separation of powers -the Constitutional Court cannot dissolve Parliament, a co-equal branch of government. More importantly it tended to clarify the fog surrounding the decision of the Constitutional Court. The decision did not call for the dissolution of Parliament. It had merely put in question the legality of electing one-third of the membership which had been allocated to individual (non-party affiliated) candidates, a restriction which apparently was not observed by the political parties.

So who is for Morsi's decree and who is against it? Of course, the Islamists (70% of seats -both Brotherhood and Salafis) were supportive. Cassation, they maintained, has jurisdiction over questions of legality of parliamentary representation. Liberals and others derided the reconvening of the House of Representatives asserting that the Constitutional Court decision is final, non-appealable; and that that judgment needs no clarification of implementation mechanism. Amongst them was Dr. Yehia El-Gamal, the former Deputy Prime Minister of Egypt after the fall of Mubarak.

In a colorful interview with one of Egypt's popular TV channels, Dr. El-Gamal, who is considered one of the foremost constitutional lawyers in the Arab world, quipped: "Parliament is dead. Even President Morsi cannot bring the dead back to life!!!"