Musri and al-Katatni could be imprisoned – Egyptian judge

Cairo, Asharq Al-Awsat- Justice Muhammad Hamid al-Jamal, former president of the Egyptian State Council, has claimed that newly-elected Egyptian president, Dr. Mohamed Mursi – alongside Egyptian parliamentary speaker, Dr. Saad al-Katatni – could be dismissed from their posts and imprisoned for their violation of the ruling issued by the Supreme Constitutional Court last month dissolving Egypt’s parliament.  Speaking exclusively to Asharq Al-Awsat on Monday, al-Jamal called on the Supreme Council of the Armed Forces [SCAF], which handed over power to Mursi last week, to intervene to prevent this attack on constitutional and legal legitimacy.

Following parliamentary elections beginning on 28 November 2011 and ending 11 January 2012, Egypt’s Islamists won a strong parliamentary majority.  Egypt’s Islamist parties – including the Muslim Brotherhood’s Freedom and Justice Party, the Salafist al-Nour party and others – won approximately 70 percent of seats in Egypt’s People’s Assembly.  However a legal ruling was later issued by the Supreme Constitutional Court branding the parliamentary elections unconstitutional and dissolving Egypt’s parliament.  This ruling was implemented by SCAF chairman Field Marshall Hussein Tantawi, prior to Mursi’s election.  Following Mursi’s election, the newly elected Egyptian president branded the Supreme Constitutional Court ruling and the dissolution of parliament unconstitutional, calling for parliament to be reconvened.  In turn, SCAF and the Supreme Constitutional Court branded Mursi’s actions unconstitutional, with the military and the presidency currently at loggerheads.

In an exclusive interview with Asharq Al-Awsat, former president of the Egyptian State Council, Justice Muhammad Hamid al-Jamal, offered his expert legal opinion regarding the chaos prevalent on the Egyptian political scene today.

As for the constitutionality of the Supreme Constitutional Court’s ruling to dissolve parliament, Justice Al-Jamal informed Asharq Al-Awsat that the suspended Egyptian constitution stipulates the presence and powers of this court, which include determining the constitutionality of the laws, interpreting ambiguous laws and legal statutes, settling conflicts between rulings and issuing legally binding rulings.

Al-Jamal stressed that “by law, this court’s rulings are categorical and final.  These rulings are binding to all state authorities and officials, including the head of state…from the date the ruling is officially issued.”

Justice Al-Jamal also told Asharq Al-Awsat that “when this ruling was issued, all state authorities should have implemented this, including the head of the executive authority. This implementation is based on the ruling’s constitutional and legal authority…there is no need for another ruling authorizing the implementation.

He added “this means that the implementation ruling issued by SCAF is nothing more than a media and executive expression of the Supreme Constitutional Court’s original ruling.”

Justice Al-Jamal stated that the resolution stipulating the dissolution of the Egyptian People’s Assembly, which was signed by SCAF chairman Field Marshal Tantawi on the basis of the Supreme Constitutional Court’s ruling, is superfluous and does not establish anything new, because the People’s Assembly was null and void from the moment of the first ruling.

Justice Al-Jamal stressed that in this case, “what the president did two days ago, issuing a decree recalling the People’s Assembly…is null and void and has no constitutional or legal basis, because it violates and contradicts the Supreme Constitutional Court’s ruling.  This also amends the valid constitutional declarations, including what we call the Complementary Constitution declaration and the Interim Constitution.  This determines (the date of) new parliamentary elections following the drafting of a new constitution, and dissolves the current People’s Assembly.”

As for whether the newly-elected Egyptian president has the right to nullify the Supreme Constitutional Court’s ruling or recall parliament, Al-Jamal told Asharq Al-Awsat that “these are all powers that have no basis in the existing constitution…the president does not possess any such powers.”

He added “just because he is the president, this does not mean he can do anything that he wants, because his powers are derived from the constitution and the laws.  Therefore, this [presidential] decree is null and void, as it violates the judicial authority and the powers of SCAF.”

As for whether those who follow President Mursi’s decree will be subject to punishment for failing to abide by the Supreme Constitutional Court’s ruling, Justice Al-Jamal stated “of course…first of all there is the text of the interim constitution which stipulates that legal rulings must be respected and implemented, and whoever fails to do so is committing a crime punishable by law. Whilst Chapter 2 Article 123 of the Penal Code stipulates that the punishment for any public employee or official who hinders, suspends, or cancels the implementation of legal rulings is imprisonment and dismissal from his post.  Naturally, the president – who issued the presidential decree – is primarily responsible for this, as well as anybody who implements this decree which is contrary to the rulings of the constitution and the law, including speaker of the dissolved People’s Assembly, Dr. Saad al-Katatni.”

Answering a question as to whether parliamentarians and parliamentary security guards who followed the president’s decree to reconvene the People’s Assembly will be punished, Al-Jamal said: “If these employees carried out the orders of Mursi and Al-Katatni, they will also be liable to the law.”

Al-Jamal stressed that “the fundamental principle regarding legal and constitutional legitimacy is that there is no obedience to a superior who issues an order that violates the constitution and the law. Naturally, public employees must object in writing to implementing such orders, and if they fail to do so…they will be committing a crime, which must be punished.”

Justice Al-Jamal informed Asharq Al-Awsat that SCAF must intervene in order to protect the implementation of the original and valid ruling issued by the Supreme Constitutional Court dissolving the People’s Assembly.  He added that SCAF must prevent the aggression against the constitutional and legal legitimacy in the country, because this is something that incites chaos and disrespect towards the law, the constitution and judicial rulings.

As for the consequences for MPs attending sessions of the officially dissolved People’s Assembly, and the legality of the salaries and financial remunerations they will get for this, Al-Jamal stressed that everything in this regard is null and void, including “the preparation of laws and the dispensation of monetary sums for any work they claim to have done.”

Answering a question regarding what will happen now in Egypt, with SCAF and the presidency divided over the issue of the dissolution of the Egyptian People’s Assembly, Justice Al-Jamal told Asharq Al-Awsat “I expect one of two options. The first is that SCAF will postpone any intervention until all cases raised before the administrative and Supreme Constitutional courts as a result of Mursi’s decree are settled.  This option involves extraordinary patience. The second option is that SCAF will rely on the enforceability, legitimacy, and authority of the Supreme Constitutional Court’s ruling regarding the dissolution of the People’s Assembly, and will give orders preventing parliament being entered illegally.”