Legal experts question legitimacy of Morsi's constitutional changes
Bassem Abo Alabass, Sherif Tarek and Ahram Online, Monday 13 Aug 2012
Senior judges and other legal experts argue that Morsi's decision to revoke the June constitutional addendum contradicts the presidential oath he took before the High Constitutional Court


Egyptian President Mohamed Morsi's decisions on Sunday to amend the Constitutional Declaration and revoke the June 18 addendum are unconstitutional, argue a host of legal experts who also said action must be taken against Morsi.

On the last day of the presidential elections in June, the Supreme Council of the Armed Forces (SCAF) abruptly introduced an addendum to March 2011's Constitutional Declaration, which gave the military body authorities at the expenses of the president.

Shortly after being elected, Morsi and the Muslim Brotherhood – the group he hails from – voiced disgruntlement over the constitutional addendum and called for full presidential authorities. For a while, protests were staged in Tahrir Square to sound that demand, but demonstrations faded out as pressure from the street on the SCAF died down.

After a period of relative calm, however, Morsi has on Sunday implemented momentous reshuffles that saw Hussein Tantawi, the minister of defence and the general commander of the Armed Forces, and Sami Anan, the army’s chief of staff, retired from their military positions and made consultants to Morsi.

Morsi took the oath of office before the Higher Constitutional Court (HCC) under the same very constitutional addendum he has now declared null and void, and thus the revocation of the annex contradicts with his pledge, opined judge Tahany El-Gebaly, current member of the HCC.

She told Ahram Online: "Morsi has sworn that he will respect the constitution and the law, and since Egypt has a temporary constitution issued on 30th March [part of it was voted for through a referendum and the rest introduced by the military council] he should have abided by them."

"A president does not have the power to abrogate a constitution, even a temporary one; Morsi should have remained committed to the Constitutional Declaration and to constitutional legitimacy."

Indeed, other legal experts echoed similar sentiments.

Essam El-Islamboli, a veteran cassation lawyer, stressed that: "Morsi does not have the authority to cancel the addendum to the Constitutional Declaration, because under that constitutional chart he took the oath as the new president.

"This Constitutional Declaration and its addendum were among the specialties of those in power [SCAF] before the inauguration of Morsi. Only interim authorities that come to power after uprisings have the right to cancel a constitution."

Previously presidential authorities were outlined in Article 25 and 56 of the 30 March Constitutional Declaration. Legislation, a parliamentary responsibility, was not one of the powers of the president.

After the SCAF dissolved parliament's lower house, upon enforcing a verdict from the HCC declaring the People's Assembly unconstitutional, the military council assumed the power to legislate in their controversial June amendments.

By cancelling the SCAF addendum and then authoring the 12 August changes, Morsi has assigned these additional "supra" powers to the president. They include the power to legislate and to issue public policy and the budget (according to sub-point 1 and 2 of Article 56).

With the status of the parliament still uncertain, Morsi now has full power to author, approve and promulgate legislation, an authority not usually ascribed to the executive body.

"After the 2011 Constitutional Declaration, the SCAF was granted what is called the revolutionary constitutional legitimacy and that is what enabled the body to make decisions during its interim tenure," Judge Mohamed Hamed El-Gamal explained to Ahram Online.

"Through that legitimacy, the SCAF dissolved the People's Assembly and that is why it introduced the constitutional addendum to assume legislative authorities, and that addendum stipulates the SCAF's powers cannot be touched.

"Only the SCAF is constitutional authorised to revoke the addendum because it is the body that has the revolutionary constitutional legitimacy; not the president, cabinet or parliament, if there is one. Thus, Morsi's decision is illegitimate, and also the following decisions that prompted reshuffles.

"Morsi is a president who was elected under a certain constitutional system; he cannot just turn against it."

When asked about the possible actions that would be taken against Morsi's decision, El-Gamal said: "It is really hard to speculate what the SCAF members would do but this is out of control now; the disputes between both sides are flagrant now and cannot be sorted out in courts anymore."

El-Gebaly, for her part, said: "As a mere citizen, not an official, I think the HCC should step forward and take action if other legal gurus prove that Morsi’s new constitution is illegitimate as I see it."

Newly appointed deputy defence minister General Mohamed El-Assar told Reuters that Morsi's decision to retire top army leaders was taken in consultation with Tantawi.

From the perspective of Mohamed Fouad, a presidential legal consultant: "Morsi has only evoked his authorities as president and transferred the legislative powers from the SCAF to himself because he is the one in power now.

"These legislative powers will be returned to the parliament after new parliamentary elections are held …These decisions are exactly like the ones the SCAF used to make while in power; they are backed by the power of the law until the People's Assembly is elected."

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