Throughout the day yesterday, supporters of Egypt’s Muslim Brotherhood began to gather at the House of the Judiciary in anticipation of a rumored, radical announcement by President Mohammed Morsi. Around 7pm local time, that announcement would come in the form of a new Constitutional Declaration, which set off massive protests throughout Egypt.
The wide-ranging powers granted to Morsi by his own hand have been hailed as a “revolutionary decision” necessary to protect the 2011 uprising by his supporters, and called a coup by members of the opposition. With such divergent opinions on the effects of the declaration, it is crucial to examine the provisions and powers conferred by the document and the surrounding context. Below, these are analysed, starting from the least controversial and most innocuous, moving through to the most controversial with the most potential for abuse.
Article four of President Morsi’s declaration extends the mandate of the Constituent Assembly from six months to eight. While there have been reports that Egypt’s first democratic constitution would be ready within the next few weeks, the inability of the body tasked with designing the constitution to move forward with any consensus has been well-documented. Extending the mandate of the body allows for greater time to work through the various problems that have developed in the process.
Article three limits the term of the Public Prosecutor to four years. This a provision that also applies retroactively to the current Public Prosecutor, Abdel Meguid Mahmoud, who has been in office for six years already, thus removing him immediately from office. President Morsi wasted no time with this provision, appointing Talaat Ibrahim Abdullah to replace him. This measure and its surrounding context have perhaps provoked the most mixed reaction amongst the populace and legal analysts.
On the one hand, Mahmoud was appointed by Hosni Mubarak and is believed by many to have gone easy on his former colleagues and abusive former police officers in the trials after the Mubarak’s overthrow. By contrast, his successor Abdullah once led the judicial independence movement during the Mubarak era, giving him considerable revolutionary credibility.
On the other hand, however, President Morsi attempted to remove Mahmoud just over a month ago, but withdrew his attempt due to protestations from the country’s judiciary over the possible encroachment on their independence and allegations that the sacking would be an illegal overstep of authority. Similar complaints were levied against Morsi in the wake of this new declaration, with perhaps the best synopsis being offered by Human Rights Watch’s Egypt Director, Heba Morayef, who insisted: "Egypt needed judicial reform and the public prosecutor is a Mubarak holdover, but granting the president absolute power…is not the way to do it."
Additionally, there are fears that this is part of a wider effort in the declaration to cloak these moves under the legitimacy of the revolution. In addition to removing the Mubarak-era Public Prosecutor from office and replacing him with a leading opposition figure from that period, article one declares that there will be retrials and the reopening of investigations against “anyone who held a political or executive position under the former regime”. Along with this decree, Morsi also called for the awarding of pensions to the families of “martyrs of the 25 revolution” and increased compensation for those who were injured during the protests. By making these changes under the populist mantle of the regime, Morsi could be attempting to use the legitimacy of the revolution as populist cover for actions that would otherwise be viewed as a substantial overreach of his power.
In the context of the Public Prosecutor’s removal above, article two is yet another usurpation of power from the judiciary. This provision provides that the decisions made by the president since taking office are non-reviewable by any institution, including the courts. Article five further provides that neither the upper house of parliament (the Shura Council) nor the Constituent Assembly (the body tasked with writing the country’s constitution) can be dissolved by an act of the Courts. It is necessary to note that court cases calling for the dissolution of both bodies are currently under review in the Egyptian Court System, and before the constitutional declaration, many saw the bodies’ disbandment as the most likely outcome. Both bodies are also dominated by Islamists, predominantly by members of the Muslim Brotherhood’s Freedom and Justice Party. This is a clear indication of the authoritarian values in Morsi’s Constitutional Declaration of November 22.
Finally, and perhaps most crucially, article six provides an open-ended provision giving the president the power to “take the necessary actions and measures to protect the country and the goals of the revolution”. Such a broadly-defined provision is not particularly informative, nor does it change much of Morsi’s powers in light of the non-reviewable nature of his declarations provided for in article two; however, it does show just how expansive the president views his new powers and enhances the cloak of revolutionary legitimacy over the whole of the power grab. While this provision will probably never be reviewed in courts, the sheer expanse of it gives a shudder of dictatorial fear, especially when it is rumoured that there will be a functional equivalent of Mubarak’s famous Emergency Law to contain current protests.
Throughout the annals of history there has never existed a completely smooth transition from authoritarianism to democracy. Morsi’s declaration has sparked fears among the now-united opposition that the country is headed back towards despotism. No less prominent a figure than Nobel Laureate Mohammad El-Baradei stated via twitter that Morsi had “usurped all state powers and appointed himself Egypt's new pharaoh”. Despite such fears, the country’s opposition is stubbornly refusing to give up on democracy. “There will be no return to dictatorship” vowed the Egyptian political figure Amr Moussa. “Egyptians will not accept a dictatorship again.”
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