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Current issue | Issue 1124, 29 November - 5 December 2012
Saturday,16 December, 2017
Issue 1124, 29 November - 5 December 2012

Ahram Weekly

A controversial declaration

Constitutional experts are divided over the legitimacy of the constitutional declaration announced by President Mohamed Morsi, writes Mona El-Nahhas

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Al-Ahram Weekly

On 22 November, President Mohamed Morsi passed a new constitutional declaration which, legal experts argue, gives him unlimited powers. The new six-article declaration, the second to be issued since Morsi became president, is due to be temporarily enacted until the drafting of the country’s new constitution.

The first constitutional declaration Morsi issued was on 11 August 2012. The former ruling Supreme Council of the Armed Forces (SCAF) passed three declarations during its rule after the ousting of former president Hosni Mubarak in the 25 January Revolution.

Although one group of constitutional experts insists that the president has no legal right to pass constitutional declarations and that his authority in the absence of a parliament is limited to passing new laws, another group has backed his right while expressing reservations about certain articles included in the new declaration.

It was the second article of the declaration that stirred a storm of anger among judges, activists and political forces on the grounds that this made the president’s decrees absolute and not subject to judicial review.

The article says that all constitutional declarations, laws and decrees passed by Morsi since he assumed power on 30 June this year are final and binding and cannot be appealed before any judicial body.

Justice Minister Ahmed Mekki, who has played a mediating role between the presidency and the judiciary, said on Monday that an explanation of the second article could be passed to clarify that it would apply to decrees having to do with matters of sovereignty and not administrative decrees.

Article 2 was not the only controversial article in the declaration, however. The sixth article allows Morsi to take any actions and measures enabling him to protect the country and the goals of the revolution.

The article has been seen as opening the door to emergency decrees, which could include detaining political opponents or closing satellite TV channels.

Together with giving his decrees immunity from judicial review, the fifth article of the declaration bans any judicial body from issuing rulings that could lead to the dissolution of either the constituent assembly tasked with drafting the country’s new constitution or the Shura Council.

Lawsuits calling for the dissolution of the Shura Council and the Constituent Assembly are now before the Supreme Constitutional Court (SCC). Fears that the SCC could order a dissolution decree for either of the two bodies may be the main reason behind the article.

In the fourth article, the deadline set by the March 2011 constitutional declaration for drafting the new constitution is extended by two months, ending on 12 February next year. Supporters of the declaration argue that the fourth article reflects a response to the demands of civil forces, which have been pressing for extending the deadline.

Yet, the core of the new declaration may be the dismissal of prosecutor-general Abdel-Meguid Mahmoud after a previous attempt to dismiss him was met with anger among judges forcing Morsi to back down.

The third article of the declaration stipulates that the prosecutor-general should be a member of the judiciary and not of the general prosecution service and should be appointed by the president for a four-year term.

The article will be applied to new prosecutor-general judge Talaat Ibrahim, who replaced Mahmoud on the day the declaration was issued. Not all the country’s political forces are against the article, since the dismissal of Mahmoud was one of the main demands of the revolution.

Despite such controversial articles, the declaration in its first article also attempts to appeal for public support. Investigations into the killing of protesters, or the use of violence or brutality against them, will be reopened, and officials from the former regime implicated in such cases will be retried according to the law on the protection of the revolution.

Until now, it has not been clear how any retrials can be held in the absence of new evidence.

However, regardless of the content of the constitutional declaration, constitutional expert Nour Farahat told Al-Ahram Weekly that the declaration was void as the president did not have the right to issue it.

“No country in the world gives the president the right to draft constitutional rules. This is a right lent either to a constituent assembly directly elected by the people, or to a body representing the revolution in the transitional period, namely the SCAF,” Farahat said.

With the end of the transitional period on 30 June, the day on which the elected president assumed power, Morsi was not allowed to amend constitutional rules or to issue new constitutional declarations, Farahat added.

“As a result, what Morsi passed cannot in any way be considered to be a true constitutional declaration. It is purely an administrative decree, which can be contested before the courts,” he said.

Viewing the declaration as an administrative decree, 25 NGOs filed a lawsuit on Saturday before the Administrative Court asking for its annulment. The appeal will be heard on 4 December.

“Morsi’s declaration is a collection of tyrannical orders that go against the independence of the judiciary and the rule of law,” said a statement issued by the NGOs on Saturday.

Perhaps for the same reason, the SCC stated shortly after the issuing of the declaration that it would resume hearing the lawsuits calling for the dissolution of the Constituent Assembly and the Shura Council as scheduled.

Interviewed by the Dream Satellite channel, professor of constitutional law Ibrahim Darwish backed Farahat’s opinion, saying that Morsi’s legitimacy ended with the issuing of the declaration, which he described as an “aggression” against the state.

“Only during transitional periods following revolutions or coups d’état has the president the right to pass constitutional declarations,” Darwish said, adding that by issuing this declaration now Morsi had “insulted the judiciary” and vitiated the rule of law.

Prominent constitutional expert Tarek Al-Beshri was quoted as saying that the Constitutional Declaration lacked legitimacy and could pave the way for dictatorship.

The declaration made administrative decrees immune from judicial review and interfered in the work of the judiciary, Al-Beshri said, adding that it could lead to the “disintegration” of the judiciary.

“Any purge of the judiciary should be done by the judges themselves,” Al-Beshri, who is said to have Islamist leanings, said.

On the other hand, expert in constitutional law Tharwat Badawi was of a different opinion.

“President Morsi has the authority to pass constitutional declarations and to take all measures necessary to confront the current exceptional circumstances,” Badawi said in an interview with Al-Ahram on Sunday.

Such ideas are common in all democratic governing systems, he said.

Constitutional law expert Merghani Khairi agreed with Badawi over the president’s right to pass constitutional declarations in the absence of parliament, while voicing reservations about the second article of this one.

“No administrative decree should be removed from the review of the judiciary,” Khairi said, adding that Morsi had also put himself above the law.

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