Tuesday,24 October, 2017
Current issue | Issue 1124, 29 November - 5 December 2012
Tuesday,24 October, 2017
Issue 1124, 29 November - 5 December 2012

Ahram Weekly

A temporary declaration

Morsi’s controversial constitutional declaration is but a ploy to prevent the Supreme Constitutional Court from ruling on the Constituent Assembly 2 December, writes Nasser Amin

Al-Ahram Weekly

As constitutional law experts will tell you, constitutional declarations are only issued in cases of a constitutional void or in non-peaceful transitional periods. They are not issued by the independent fiat of a ruler, unless that ruler happens to be a de facto authority (such as a military authority) in times of revolution or chaos or an occupying authority in the event of a foreign occupation.

The purpose of such declarations is to suspend laws currently in effect in a country and to replace them with a different set of laws, formulated and promulgated through the declaration regardless of domestic or international legal or constitutional conventions and principles. Constitutional declarations are imposed for short periods of time and terminate with the election of a permanent president or a temporary presidential council to take over the management of the affairs of the country from the military authority or departing occupying power.

Moreover, once a president or presidential council is elected to run the country, the constitutional declaration mechanism automatically becomes defunct as a means for establishing constitutional principles and is immediately replaced by a body charged with drafting a permanent constitution. The constitutional assembly, which is supervised by the elected president, draws on domestic constitutional legacies and traditions, if they exist, and general constitutional conventions and principles during the interim period. The assembly, itself, must be formed in a just and equitable way so as to express all segments of society and the beliefs and values of its diverse political, intellectual, religious, ethnic and other such components. The role of the president in this process should not extend beyond that of a facilitator, a person who can help the drafters overcome whatever obstacles might impede their collective endeavour. Once the draft is complete, the president then puts it to a general public referendum thereby confirming it as the permanent constitution or, depending on the circumstances in a country, an interim constitution.

Turning to the current Egyptian case, shortly after the revolution, the Supreme Council of the Armed Forces (SCAF) devised a constitutional declaration that was the product of an understanding if not outright partnership with Islamist groups, which then rallied their support behind it in the 19 March 2011 referendum. Fully backed by the Muslim Brotherhood at the time, that “roadmap”, as it was called, jeopardised the prospects of the creation of an independent, impartial and objective body charged with drafting the country’s new constitution. The reason for this is that SCAF’s constitutional declaration provided for a mechanism that would lead to the creation of a Constituent Assembly formed on the basis of majority rule rather than on the principle of consensus.

Although diverse political forces and judicial quarters cautioned against this danger from the first moment, their warnings fell on deaf ears. Because of the majority rule mechanism, the first Constituent Assembly was so blatantly skewed in favour of a certain political trend or faction that the High Administrative Court was compelled to rule to dissolve it and order the creation of a more equitable body. In spite of the ruling and recommendation of the court, the composition of the next Constituent Assembly proved little different from the first.

Moreover, within days of assuming office, the newly elected president used his powers to reinstate the recently dissolved parliament whose first order of business was to pass a law expressly prohibiting the High Administrative Court from dissolving the new Constituent Assembly. The president retracted his decision to reinstate parliament the following day, which some analysts saw as an indication of the president’s respect for the Supreme Constitutional Court and its rulings. In fact, however, Mohamed Morsi accomplished his aim during the previous 24 hours during which parliament did, indeed, pass a law that granted the new Constituent Assembly immunity against the Administrative Court. Although the court objected to the tactic used to circumvent its authority, it abided by the law. It therefore declined cases brought before it with regard to the composition of the second Constituent Assembly and instead referred them to the Supreme Constitutional Court, the only court empowered to rule on the constitutionality of a law.

The president, unwarrantedly, sees this as a challenge to his will, because he knows that there is a 100 per cent chance that the Supreme Constitutional Court will rule to abolish the second Constituent Assembly. This certainty does not derive from some “leak” from judges, as he claims. Rather, it has to do with the fact, familiar to any constitutional law expert, and indeed to any law student, that any constitutional court has to rule that way.

This is precisely why Islamist forces, joined by some others who fail to comprehend the fuller picture, have unleashed a hysterical campaign against the Supreme Constitutional Court. While their campaign contains some grains of truth, for the most part it is unfounded. Their chief complaint is that the judges of this court were handpicked by ex-president Hosni Mubarak; yet they fail to mention that those appointments and, in fact, all decisions regarding the appointments and promotions of members of the judiciary were done in accordance with the law.

As the date for the Supreme Constitutional Court’s ruling on the Constituent Assembly approached, which was set for 2 December 2012, the president decided to act. In an unprecedented display of bias for a particular political group and in breach of his constitutional oath to remain equidistant from all political factions, he threw his weight behind the movement of which he had long been a member and moved to pre-empt a virtually certain Supreme Constitutional Court ruling to dissolve the Constituent Assembly.

But, since the Supreme Constitutional Court is bound solely by the constitution and is empowered to rule on the constitutionality of all laws, unless explicitly prohibited from doing so by a law of constitutional status, the president had to plan his move carefully. This move was embedded in the constitutional declaration he recently issued, regardless of the fact that he is not legally entitled to issue such a declaration, effectively compelling the court to suspend its ruling on 2 December. His purpose, of course, was to give the current Constituent Assembly the time to put the final touches on a draft constitution — described by many analysts as laying the foundations for the Islamist movement’s monopolisation of control over the country — so that it can then be put to a public referendum. Thereby, the president will have succeeded in presenting other political forces with a fait accompli.

This is why I predict that the president will retract his constitutional declaration on 3 December, which is to say the day after having pulled the carpet from under the Supreme Constitutional Court’s right to issue a verdict on the Constituent Assembly. I also predict that the political opposition will look on this as a victory, whereas in fact the president will have accomplished the very ends that he had in mind. Until then, the president and his supporters will continue to defy domestic and international pressures up to and through 2 December. By 3 December he may have succeeded in circumventing the Supreme Constitutional Court, but will also have confirmed, in no uncertain terms, his favouritism for a political faction that is determined to push through a constitution that has been crafted to facilitate a bid by the Muslim Brotherhood, to which he belongs, to secure its grip over the reins of power in Egypt.

The writer is a lawyer at the International Criminal Court.

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