Mallat in Jurist on Morsi ‘unconstitutional’ decree

29/11/2012

RN Chairman Chibli Mallat in an op-ed in  Jurist  challenges both on procedural and substantive grounds the recent action by Egyptian President Morsi and calls on the judiciary to respond with a well-reasoned decision to declare it  ultra vires  or beyond the powers of a president on principle.

President Morsi: The Dubious Authority of a ‘Constitutional Declaration’ 

JURIST Contributing Editor Chibli Mallat of the Yale Law School says that a recent decree issued by Egyptian President Mohammed Morsi is unconstitutional and must be struck down by the judiciary in order to preserve the country’s democratic revolution…

I (Hammurabi, Pharaoh, president, speaker, street cleaner, seventh-year student at your local public school…) issue the following constitutional declaration: “From this day on November 29, 2012, all men with blue eyes will be considered to have brown eyes. All men who thereafter insist that they still have blue eyes will be banned from the land until they recant. This declaration is binding on all, with immediate effect, and no judge or court or any other person or group, governmental or non-governmental, can rescind or review any part of it.”

So it is for Egyptian President Mohammed Morsi’s declaration, both on procedure and in substance. Under what authority can Morsi issue a “constitutional declaration”? And is there any measure that he can defend in it that is substantially coherent?

The response cannot be found in any texts that pass as constitutional since Hosni Mubarak was brought down by the people’s power. If the 1971 Egyptian Constitution is still valid, including the amendments approved by referendum on March 19, 2011, then there is no mention of a “constitutional declaration” in the Egyptian constitution. The president must find the authority for his declaration elsewhere. Morsi can argue that his election by the people grants him such authority, and rest it on the power vested in him by popular mandate in presidential elections. But if he were capable of issuing any constitutional declaration just because he has been elected by the people, then he could appoint himself president in perpetuity, anoint his horse as a senator and turn blue-eyed people into brown-eyed citizens. So, Morsi needs to look elsewhere for legitimacy in his post-revolutionary constitutional practice. He could also rest it on the argument that the Supreme Council of the Armed Forces (SCAF) took the same legal liberties at various junctures, and he would be right on the facts. But the SCAF passed its unilateral declarations without authority, hence the correct battle (also waged by Morsi and his supporters) that made SCAF finally fold.

In short, the Egyptian president cannot simply issue a “constitutional declaration” — especially one which bears little trace of his own cabinet backing it. Citizens are bound to fight it in the street to force a retraction, and challenge it before the courts. A reasoned decision from the Supreme Constitutional Court of Egypt (SCC), or the administrative courts that are reportedly scheduled to be heard on December 4 or, indeed, from any judge sitting on a court whose powers were annihilated by the declaration can dispose of it as ultra vires(beyond the powers of a president) on principle. Morsi might then try to dismiss judges or arrest them, but he would not gain any constitutional authority in doing so. He would just be digging in as the new Pharaoh. (continue)

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