Egyptian President Mohammed Morsi posted a daring tweet on Wednesday regarding the history of Egypt’s revolution in his personal account that read: “Today, Thursday, November 23, 2012, is the real beginning of the revenge for the blood of martyrs and faithfulness to the revolution.” The president’s tweet was followed shortly afterwards by a new constitutional declaration that created a big blow to most Egyptians who received the news with astonishment and shock.
Yesterday’s complementary constitutional declaration consisted of a number of odd decisions and laws that, according to its authors, aimed at safeguarding the achievements of Egypt’s 25th January Revolution. After the announcement, Egyptians, as usual, were divided between supporters welcoming the declaration and opponents warning of its consequences.
Based on a legal point of view that rests on constitutional facts, the following study explains the main issues listed in the declaration which divided Egyptians into supporters and opponents of the president.
The President’s Jurisdiction to Issue Constitutional Declarations
It is unquestionable that the complementary constitutional declaration was issued in an undemocratic manner and was nothing but a one-man-show production even if the president tries later to subject the document to a public referendum.
It is an ordinary legal principle which is based on the supremacy of the constitution that legitimate rules are annulled and amended according to other constitutional rules thus making the ruling issued yesterday by the president and his others decisions that voided the complementary constitutional declaration are not more than executive decisions which are subject to the administrative or the constitutional courts.
Egypt’s Supreme Constitutional Court has issued a very important constitutional verdict that is directly related to the president’s recent decisions when it ruled in January 21, 1986 that “provisions of the constitution cannot be amended but according the measures listed in Article 189 of the Constitution.”
Based on that, the president’s recent decisions are “arbitrary” and nothing more than a personal act that rests on no constitutional rules and accordingly, non-abiding for citizens.
Safeguarding decisions and dismantling institutions
The controversial constitutional declaration has safeguarded all decisions issued by the president against any challenges before any court of judicial entity in Egypt which means that all rulings issued by the president, until a new constitution is written, are considered effective and absolute. This also means that the Supreme Constitutional Court can no longer look into the legality and constitutionality of presidential decisions according to the exclusive jurisdictions granted to the judicial body by 1971 Constitution and the 2011 Constitutional Declaration as well as its bylaws.
The presidential immunity has been received with surprise and anger by opponents of the Egyptian President who accused the president of issuing the constitutional declaration to enlarge his powers and make his decisions immune against challenges, describing him as Europe’s medieval kings who had been bestowed with God-like qualities.
Those who opposed the president’s new powers based their rationale on the fact the president cannot deviate from legitimacy and destroy the state of law and that all his executive and legislative duties are subject to the judiciary and governed by the Constitution.
Supporters of the president who hailed his decisions claimed that they are necessary for a country going through a revolutionary era and that what prompted the president to issue these decisions to safeguard the country’s stability and security and its revolution’s gains.
They also argue that the president, with the county’s facing unexceptional and risky conditions, is required to take certain administrative measures that, even if they violate the normal legal bases, are considered legal because they are for the benefit of the country’s security and stability.
There is what is called “extraordinary legitimacy” generated during exceptional events but there is also a sort of consensus among all constitutional experts that there should be certain conditions needed for such a theory to be valid. All measures taken during exceptional circumstances have to serve a certain goal and that all powers given to executive authority during such conditions have to be also monitored by the judiciary because otherwise such omniscient and unmonitored powers will turn into tyranny.
As a constitutional principle accredited worldwide by all political systems, the separation of the three powers aims at preventing the annulment of any constitutional and independent power at the expense of another.
The Egyptian President, according to established legal and constitutional experts, has committed a big mistake in his decision to annul the jurisdiction of Supreme Constitutional Court without a constitutional permit because that is against the separation of powers principle and will lead to a constitutional independent power taking the duties of another one.