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The constitutionality of Morsy’s decision to reverse SCAF’s constitutional decree

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Morsy regained presidential powers which the constitutional decree had barred from

President Mohamed Morsi addresses a religious gathering on 12 August at the Al-Azhar Conference Center in the Cairo suburb of Nasr City -AFP PHOTO / HO / EGYPTIAN PRESIDENCY

President Mohamed Morsi addresses a religious gathering on 12 August at the Al-Azhar Conference Center in the Cairo suburb of Nasr City -AFP PHOTO / HO / EGYPTIAN PRESIDENCY

In an unexpected move, President Mohamed Morsy surprised his people with the controversial move of reversing the constitutional decree issued by the Supreme Council of Armed Forces (SCAF) on 17 June.

Through the reversal, Morsy regained presidential powers which the constitutional decree had barred from him enabling him to make changes within the military and SCAF. Exercising full presidential powers, Morsy decided, within the same move, to send Field Marshal Hussein Tantawi, Commander-in-Chief of the Armed Forces and Minister of Defence and his Chief of Staff Lieutenant General Sami Anan to retirement.  The constitutionality of reversing SCAF’s constitutional decree remains in question, though most constitutional experts are verifying it.

“The decision is a hundred percent constitutional,” said Raafat Fouda, constitutional expert and law professor at Cairo University. “There is nothing backing SCAF’s claim to the exercise of power except in indispensable cases.”

Since that indispensible case ended with the democratic election of Morsy as president, according to Fouda, Morsy should be able to “immediately reclaim full authority, including that to reverse the constitutional decree.”

Constitutional expert Tharwat Badawy also deemed Morsy’s decision constitutional.  “Because Morsy represents the sole legitimate authority in Egypt, he has full control over legislative powers in the absence of parliament,” he said.   Badawy added that the legislative power would not be taken from Morsy “unless Parliament reconvenes,” or a new parliament gets elected.

Cairo University law professor Gaber Nassar was also among those who applauded Morsy’s decision.

“In my opinion, reversing the decree was necessary both on the legal and political levels,” Nassar told ONTV’s morning show, Sabah ON, in a phone interview.

Nassar also added that according to article 147 of the 1971 constitution, the president has executive powers as well as legislative ones in case of the absence of parliament.  Under these circumstances, the president gets to take any legal decisions, seeing that all those decisions are to be presented to parliament upon its election.

“Morsy’s decisions are breach of constitutional legitimacy which made him president, which thus deems him lacking constitutional legitimacy,” Deputy Head of the Supreme Constitutional Court Tahany Al Gebaly told BBC Arabic.

Hossam Eissa, law professor at Ein Shams University told the Daily News Egypt that any constitutional investigation into the matter shall only be on a theoretical level, being meaningless in practice.

“The constitutionality of the matter is not up for questioning since we are facing a political, not constitutional, case.” Eissa said. “It’s the de facto which rules in such cases.”

Eissa furthermore echoed speculations that the decision to reverse the decree and send Tantawi and Anan to retirement was taken following an agreement with the armed forces.

“In my opinion, the decision came from the inside of the army, and was implemented by Morsy,” Eissa said.


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