President Mohamed Morsy has often celebrated the fact that he has seldom used his legislative powers, using that fact as an index of his care not to abuse his expansive authorities.
Those powers were acquired by the president in August after he canceled a constitutional addendum drafted in June by his predecessors, the Supreme Council of the Armed Forces, to claim legislative authority following the dissolution of Parliament that same month.
But a new constitutional declaration issued on Thursday night actually harnesses more power for Morsy, which he says he is trying to avoid.
“The constitutional declaration announced by Morsy is a way of raping the country, and wholly abrogates the role of all judicial authorities,” says Wahid Abdel Meguid, a former Constituent Assembly speaker who withdrew last week.
“No leader confident in his popular support would go as far as to abolish the very idea of the state in order to protect himself.”
Many opposing Morsy's move remind that the president made it to the highest executive post with a 51.7 percent of the votes, which is not a landslide victory that reflects a nationwide support for his decisions.
The seven-article declaration renders the president's decrees and laws immune from appeal or cancellation. It also protects both the Shura Council and the Islamist-dominated Constituent Assembly from dissolution by any judicial authority, and further protects the assembly by extending its mandate to draft the constitution to eight months instead of six, as stipulated in an earlier constitutional declaration. Two cases against the Shura Council and the Constituent Assembly are currently awaiting a court ruling, but those cases will now be voided by the declaration.
The new constitutional declaration also gives immunity to all decisions and decrees issued by Morsy since he took office on 30 June and until the ratification of a new constitution, thus protecting those decisions from judicial or any other type of revision.
Further, Morsy granted himself the exclusive right to take any measures he sees fit to protect the country's national unity, national security and the revolution.
Morsy also added a new chapter to the ongoing feud over terminating the prosecutor general by sacking Abdel Meguid Mahmoud and appointing Talaat Ibrahim Abdallah in his stead for a four-year term. Morsy's previous attempt to sack the Mubarak-era prosecutor general was immediately reversed after it stirred a wave of wrath from the judiciary, which considered the move an infringement on its independence. The prosecutor was conventionally immune from executive intervention.
Readings differ on what is at stake in tonight’s declaration, but for several politicians, especially those from the non-Islamist camp, the constitution is the target.
The current Constituent Assembly, born out of the dissolved Parliament, has experienced continuous hiccups with a series of resignations by members who say there is little accord over the process.
“The decisions of Morsy deliver a clear deterring message with regards to the constitution. The message is whoeverwants to stay can stay, and whoever wants to go can go. This is a confrontational attitude," says Mohamed Naeim, member of the political bureau of the Socialist Democratic Party, whose representatives have withdrawn from the assembly.
"My assessment is that the Brothers want to make no concessions in the constitution writing process, and this is showcased in the lack of seriousness in their attitude in the ongoing conflicts in the assembly," he adds.
Asked whether the Brothers can afford to put a constitution to referendum without guaranteeing a certain level of agreement, Naeim says he doesn't trust any electoral process to be handled under the expansive powers of a president whose political affiliations are aligned with the Islamist majority of the Constituent Assembly.
Aside from concerns about the constitution, some see Morsy’s latest move as as targeted at the unresolved feud between the president and the judiciary, with Morsy sending a debilitating blow to the prosecutor general, the Supreme Constitutional Court and other judicial authorities.
“This is the start of the rule of an individual who has all the powers and has the right to cancel the supervision of the judiciary and devalue the decisions of the court,” says lawyer Amir Salem, adding that immunity from judicial oversight is a third layer of power Morsy has claimed for himself, in addition to executive and legislative authorities.
“I don’t think these are spur of the moment decisions — Morsy doesn’t compromise on his views and he has made it clear since the start of his term that he will not accept any restraint to his power,” says Mostafa Kamel al-Sayed, political science professor at Cairo University.
Before today’s decree, Morsy had lost two rounds in an ongoing battle with the judiciary.
In June, the Supreme Constitutional Court overruled Morsy’s decision to reinstate the Parliament that the court had dissolved.
Morsy had to give in to the will of the judges again in October when they rejected his attempts to pressure the prosecutor general to resign.
“After failing to dismiss the prosecutor general, Morsy couldn’t accept defeat and was waiting for the right moment to get rid of him,” says Kamel.
Salem says dismissing the prosecutor general — a figure who is by law immune to executive intervention — and appointing a new one without the approval of the Supreme Judicial Council is a grave breach of judicial independence.
Backed by solid public support, judges are already challenging Morsy’s decisions, signaling the start of another fierce round between the two sides instead of what the president hoped would be an end to the battle.
“I expect a grueling crisis between the judiciary and the prosecution on one side and the president on the other after this constitutional declaration because it represents a dead end for everyone,” Salem adds.
Morsy’s new declaration was described by many as an attempt to pay lip service to revolutionary demands while strengthening his grip on power. The timing is right, with street battles raging in downtown Cairo since Monday and protesters expressing anger over the impunity of the perpetrators of attacks against protesters.
On Thursday night Morsy also ordered the reinvestigation of all cases in the killing of protesters in which figures of the old regime are implicated.
Shortly following the constitutional declaration, Morsy also issued a new law for the “protection of the revolution” to regulate the retrials. The law states that if investigations reveal new evidence against the accused, new trials would be held, overseen by a so-called “revolution protection” prosecuting body formed of judges with one-year terms.
Hossam Bahgat, director of the Egyptian Initiative for Personal Rights, commented on his Twitter account that the article of the new declaration only focuses on the toppled Mubarak regime’s violations and ignores those of the military regime, which presided over several incidents of violence against protesters throughout the transitional period.
Finally, in what was described as Morsy’s carrot, the president also ordered dispensing exceptional pensions to those injured during the revolution.
“Offering cash to the revolution’s victims and retrials for their attackers seems designed to placate street activists,” writes professor of political science, and expert on Egypt’s constitutional issues, Nathan Brown for the Arabist blog.
Meanwhile,it is feared that Article 6 of the declaration, which empowers the president to take any necessary measures if he feels the revolution, national unity or national security are in jeopardy, could give the president a free hand to violate rights and freedoms.
“This is a declaration of martial law under the disguise of an article in the decree,” says Salem. “Anyone deemed to be against the revolution, whatever this means, will be prosecuted and punished.”
Several pundits expressed particular concerns over the implications of such a loose stipulation, particularly in regards to the freedom of the media, an issue that has caused tempers to flare recently with several cases incidents of journalists summoned to court on defamation charges and the confiscation of media licenses.
Gehad El-Haddad, advisor to Morsy’s Freedom and Justice Party, described the clause as a “pre-emptive clause that may or may not be used. Time will tell.”
Different interpretations were given as to why Morsy was emboldened to make such moves. For some, his successful brokerage of a truce between the government of Hamas and Israel, which raged a war on the Gaza Strip last week, is said to have empowered him to make strong domestic moves.
“Internationally, he has just won plaudits for his role in ending the fighting between Israel and Hamas; that likely offers him a bit of insulation from international criticism and some vague domestic capital for showing Egypt’s centrality,” writes Brown.
Since claiming them, Morsy has used his legislative powers to approve amendments to several laws, including one which granted amnesty for some crimes committed during the 25 January revolution. He also approved a 15 percent raise to public employees and a similar increase in pensions, amendments to the education law and health insurance for children under school age, passed controversial university bylaws and increased the penalties for smuggling petroleum products.