The circulated arguments against the Supreme Court ruling are good cause for Hasan Tatanaki to ask for his money back. Hell, at this point he might as well sue for damages. I think the arguments are overstated and false on their face, every one that Ive seen. Here are some half-baked thoughts on the subject. One of the widely circulated complaints is attributed to Azza Maghour, who, as a member of the February Committee, co-authored the constitutional amendment nixed by the Court. If you strip away the fluff and stuff, the core of the argument is centered in the very text of item 11 of the seventh amendment, which I translate as follows The proposal of the february committee is hereby enacted on the condition that the elected house of representatives resolve the issue of [electing] the president, whether by direct or indirect elections, no later than 45 days after convening its first meeting... I deliberately wrote the text as it appears because part of the problem is rooted in the Arabic language where there is no capitalization. Considering that this is a legal text, you might expect the amendment to appear as follows The Proposal of the February Committee is hereby enacted on the condition that the elected House of Representatives resolve the issue of [electing] the President, whether by direct or indirect elections, no later than 45 days after convening its first meeting. The difference is clear. The capitalized words are specific terms that should not be construed in their broad and vague sense. It is also clear that the entities elected House of Reps and President cannot be adequately defined by this text unless their legal definition is part and parcel of the Proposal by the February Committee. These terms cannot be left indefinite, and they are made definite only by being derivatives of the Proposal that was entered into the congressional record. You dont even need to read the Proposal to know that it must define the electoral identity of this thing named HOR. But if you do decide to take a look, you will find that the Proposal consists of some 57 items, and the very first one reads as follows: - The Legislature will be a House of Representatives elected by direct secret ballot and in accordance with the Election Law to be issued by the GNC within two weeks from adopting this amendment. There is no ambiguity that the February Committee Proposal is the birth certificate of the elected HOR as it alone specifies the mode of its election/birth. Any enactment of the February Committee Proposal must include automatically all of its provisions, unless otherwise explicitly stated as in the case of electing the President. Azza Maghour argues that dismissing the amendment has no bearing on the legality of the elected HOR, that the legitimacy of the HOR is rooted not in the amendment but in the subsequent election law. She carefully sidesteps the inconvenient fact that the ruling statement was not limited to the amendment but (redundantly) to the amendment and its consequences. If the very birth of the HOR is not predicated on the amended Constitutional Declaration, then on what basis did they set out to write an election law? The amendment was to adopt every recommendation in the proposal, including the recommendation of electing an HOR and the mode of its election. The subsequent election law was a corollary of the amendment, and it had to work within constraints set by the amendment not independent of it. There was no way that the election law could have superseded the amendment by violating the constraint of _direct_secret_ballot_elections. Therefore, the legality and the very electedness of the HOR derives from the amendment not the election law. Once the amendment is killed, all of its consequences are dead, including the election law. The other argument Ive seen in circulation is that the court was acting outside of its jurisdiction, that it could not rule on the constitution itself, and its authority is only to rule on whether the constitution is applied correctly. Well, as things stand, the court ruled on the constitutionality of the procedure followed in adopting the amendment. The court was not concerned with the provisions of the amendment, only the legality of its process. There is a big difference between the legality of the contents/provisions of an amendment and the legality of its birth process. This non-jurisdiction argument is further crippled by precedent. As Ive read, this is not the first time this court reviewed a case on the legality of the process leading to an amendment. And in the previous case against the National Transitional Council, they also found the process illegal. Nothing new, the argument is as irrelevant now as it was before.
Posted on: Mon, 10 Nov 2014 15:11:45 +0000
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