CAIRO - President Mohammed Morsi has often celebrated the fact that he has seldom used his legislative powers, using that fact as evidence 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, November 22, actually harnesses more power for Morsi, which he says he is trying to avoid.
“The constitutional declaration announced by Morsi 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 Morsi's move remind that the president made it to the highest executive post with 51.7% of the votes, which was hardly the kind of landslide victory that reflects nationwide support.
This week's 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.
The new constitutional declaration also gives immunity to all decisions and decrees issued by Morsi since he took office on June 30 and until the ratification of a new constitution, thus protecting those decisions from judicial or any other type of revision.
Further, Morsi granted himself the exclusive right to take any measures he sees fit to protect the country's national unity, national security and the revolution.
Morsi 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. Morsi'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.
A dangerous feud
Readings differ on what is at stake in Thursday'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 Morsi deliver a clear deterring message with regards to the constitution. The message is whoever wants 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.
Aside from concerns about the constitution, some see Morsi’s latest move as targeted at the unresolved feud between the president and the judiciary, with Morsi 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 Morsi has claimed for himself, in addition to executive and legislative authorities.
Before the latest decree, Morsi had lost two rounds in an ongoing battle with the judiciary.
The Supreme Constitutional Court has previously overruled Morsi’s decision to reinstate the Parliament that the court had dissolved, and his attempts to pressure the prosecutor general to resign.
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 Morsi’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.
Morsi’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.
(UPDATE: Protesters vowed Saturday to continue to demonstrate against Morsi, after a day of sometimes violent confrontations with authorities)
On Thursday night, Morsi also ordered the reinvestigation of all cases in the killing of protesters in which figures of the old regime are implicated. Morsi 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.
Finally, in what was described as Morsi’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.”
Different interpretations were given as to why Morsi 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," writes Brown. "That likely offers him a bit of insulation from international criticism and some vague domestic capital for showing Egypt’s centrality.”