Two Saints and a Sinner

-->

            The name Ahmad Lutfi Ibrahim does not, for most people, evoke any particular memories.  It would hardly surprise me if a few friends thought I had meant to type Ahmad Lutfi Al-Sayyid, the renowned and sometimes reviled leader of the Egyptian Constitutional party of nearly eighty years ago.  And yet there he was, Ahmad Lutfi Ibrahim, on January 25, 2011 staring somberly out from the front page of the daily Al-Misry al-Yawm.  He was, the paper reported, accused of being the leader of a group of about 20 members of the Palestinian based Islamic Army who had set off a bomb that took the lives of 24 people at the Qiddisayn (or Two Saints) Church in Alexandria on January 1, 2011.  He was famous for an instant and the story of his fame and subsequent complete disappearance tells us something important and unexpected about the extraordinary events of the Egyptian revolution.  And it provides a way to understand the wave of commentary that has already begun about what has changed and what has not after two years of revolution as well as to indicate how difficult are the problems Egyptians face as they seek to create new governing institutions. 

            On January 24 the two main privately owned liberal newspapers, Al-Shorouq and Al-Masry al-Yawm, ran front-page stories detailing government reports that it had solved the case of the explosion.  Habib al-Adly, Al-Masry al-Yawm, then Minister of the Interior, had revealed that decisive evidence proved the IA was behind the explosion.  It is hard to judge the Adly’s statement because neither the decisive nature of the evidence was revealed nor was Ibrahim himself brought forward.  As of January 24, the press reports make it seem as if the literature graduate from Alexandria was in custody and confessing the details of the crime

The next day the revolution began and the stories about the bombing of the church and those who might have been responsible end.  While the revolution was certainly bigger news, its occurrence was not the only reason the press ceased its coverage.  Rather the then public prosecutor, Abdel-Meguid Mahmoud, prohibited publication of details of the ongoing investigation of the crime.  This, Mahmoud explained in a statement, was necessary because the law obliged criminal inquiries remain secret so as not to impede any ongoing investigation.  The statement itself had been communicated to Anas Fiqqi who was then the Minister of Information so that he could prevent further reports from appearing in the “visual or spoken media as well as in the national press, the partisan (daily and weekly) press, whether local or foreign as well as any other publications.”  In other words there was to be no further discussion anywhere of any aspect of the investigation.

            And indeed there has not been any further discussion about the Two Saints Church, Ahmad Lutif Ibrahim, or Sayyid Bilal, a young Alexandrian Salafi who was taken into custody on January 5 and whose body, with marks of torture, was returned to his family for burial on January 6, 2011.  Although some (primarily left-wing) activists consider Bilal a martyr of the revolution, and although four police officers were convicted of his murder in absentia, he too has largely vanished from public view. Not even the Salafi currents recognize his existence or memorialize his death. 

Consequently more than two years later, we know nothing about who was responsible for the criminal act of January 1.  Today Habib al-Adly is in jail and Abdel-Meguid Mahmoud has been dismissed as public prosecutor; the entire political order for which they both labored no longer exists.  Muhammad Morsy, a member of the Muslim Brotherhood, rather than Husny Mubarak, is president; Egypt has a new constitution; elections for a new parliament are in limbo but there is no possibility that the former National Democratic party will dominate it.  Hundreds of people were killed by the police during the popular uprising that overthrew Mubarak and hundreds more have been killed in the months since he left office by the police and the Armed Forces.  And there have been violent confrontations between Muslims and Copts at several churches as well as in villages around the country. 

There are other disastrous continuities as well: train crashes, police brutality, and widespread poverty. The revolution’s defenders and critics frequently invoke the continuity of 30 years (or sometimes 60) to explain or explain away contemporary disasters such as train wrecks that take dozens of lives or unfathomable political or legal defeats such as courts that do not convict the guilty merely because of an absence of evidence.  Strange it is that in all of these instances the distant past remains obstinately part and parcel of the present.  But an event that occurred less than three weeks before the revolution exists now in an alternate temporal universe for which neither the revolution nor the current government nor the institutions of the state have any responsibility. 

So why bring up this particular bit of history that has now become ancient even if it is entirely recent? The victims of the Alexandria bombing were not political activists; they were celebrating Christmas in a church; had they simply returned safely home after that Mass perhaps they would have joined the revolution three weeks later.  Perhaps not. Unlike the dozens of people, many of whom were Christian, who were crushed to death by military vehicles in front of the television broadcasting headquarters those who died in the church are not, by anyone’s account, martyrs of the revolution.  They are simply the victims of criminal violence and criminal conspiracy but, given a widespread belief that violence is worse in both quantity and quality now than under Mubarak perhaps it is best, as the Egyptian expression goes, to allow what is past to expire.

            And yet, what happened that night in Alexandria casts vivid illumination on some aspects of the revolution’s first two years. 

When President Morsy determined to oust Abdel-Meguid Mahmoud from his post last fall, his stated reason was that Mahmoud had failed to achieve successful prosecutions of either the police officials implicated killing revolutionary martyrs or against alleged corruption in the old regime.  Morsy and his party have, in other words, no problem pursuing prosecutions of their political enemies, but they seem decidedly less interested in righting other wrongs of the old regime. 

In late March 2013, the Cairo Appeals Court ruled that Morsy had unconstitutionally and wrongly dismissed Mahmoud and ordered his re-instatement.  This ruling will now be taken to the Court of Cassation.  There are obviously plausible legal arguments, but many Egyptians will perceive this as part of an ongoing conflict between the executive and judicial branches of government.  The court has not so far released the text of its reasoning but it appears to have been based in part on the question of whether the president can nominate a public prosecutor without the participation of the judiciary.

Mahmoud was certainly a creature of the old regime.  So too is the entire judiciary and prosecutorial staff which was angered by Morsy’s decision to resort to a constitutional declaration in order to remove him.  President Morsy and the Muslim Brotherhood would claim that Mahmoud was unwilling to prosecute his associates in the old order.  Their opponents argue Mahmoud’s failures were necessarily the result of the maintenance of the rule of law in Egypt in place of the installation of a politically motivated form of revolutionary justice.  For many reasons—some good and some bad—there was simply not enough evidence for convictions under existing Egyptian law.  One way to judge between these competing narratives then is that Morsy sacked Abdel-Meguid for his failure to achieve a result not available under Egyptian law rather than for his failure to prosecute or even fully investigate a shocking act of criminal violence that had occurred earlier in his tenure.

            Neither Mahmoud nor his replacement, Talaat Ibrahim, who was ostensibly appointed to bring a more concerted pursuit of justice to the office, re-opened the case of the Two Saints Church.  Yet recall for a moment the atmosphere of the time: the shock, dismay, and outrage at a criminal act of sectarian murder.  That there would continue to be attacks, sometimes murderously violent, on Christians was widely believed.  About a year earlier, after all, there had been a drive-by shooting at a Christmas mass in Nag’ Hammadi.  The Azhar Ulama Front, now occasionally described as a conservative organization of religious scholars, had issued a call for a boycott of Christian businesses and prominent figures, such as the attorney and 2012 presidential candidate, Salim al-Awa, had claimed that Christians were stockpiling weapons in church basements.

Religious violence therefore seemed as plausible as a future encompassing revolution on the Tunisian model. Bombing a church had ratcheted up the violence and the inevitable rumors swirled:  it was Islamist extremists, it was one branch or another of the state secret services, it was Christians themselves.  The story that Habib Al-Adly told was designed, like most stories the government had told for decades, to pacify the public and assure everyone that Egyptians were not to blame.  Only foreigners—Palestinians, Israelis, or the agents of other powers—were capable of such acts.  Egyptians, as government after government has hastened to reassure them, are not responsible for any of the bad things that happen in the country. 

            One cannot even speculate; one can only wonder what we would learn if the existing files were opened.  The least likely outcomes are that Israelis or Ahmad Lutfi Ibrahim and his Palestinian associates were the criminals.  Perhaps we would learn that the evidence pointed in the direction of Salafi groups, including those whose members have been elected to parliament.  Or perhaps the security forces were involved, whether as active agents or passive facilitators. Perhaps the government knew who had committed the crime but lacked evidence or worried that the truth was politically too inconvenient. Perhaps we would simply learn that the files, such as they are, are largely empty and that the government had no clues and no intention of discovering who committed the crime.. This last possibility seems most likely of all when we recall that it was the very day of the announcement that the revolutionary tide began to scour the country.

            Had Charles Dickens chosen to write about Cairo rather than Paris his words would ring equally true:  it has been the best of times and the worst of times. The past years have seen dramatic mobilizations by unlikely and frequently powerless groups.  Through the spring of 2011 Copts demonstrated not simply for their rights but for the right for a more public presence in the neighborhood known as Maspero..  In October 2011 members of the Egyptian armed forces attacked Coptic demonstrators in front of the Maspero television station by driving armored personnel carriers into their midst.  An ugly scene was made worse when news announcers urged honorable citizens to descend into the streets and engage in vigilante justice against thugs who had killed and wounded members of the armed forces.  But there were no thugs and no soldiers had died.  Instead, a group of soldiers had gone on a killing spree in which several dozen Christian demonstrators were crushed to death.  

In December, the Deputy Guide of the MB and the man in whose stead Morsy ran for President, Khairat Shater announced that his organization and a group of Salafi societies had come to an important agreement and issued a joint statement. The joint statement issued at a nationally-televised press conference asserted that Muslims should not wish their Christian neighbors Merry Christmas. There is no comparison between the refusal to return a greeting and criminal homicide nor did the agreement become the official policy of the state.  It was, however, the first time in modern Egyptian history that politicians associated with a governing majority have publicly associated themselves with such a policy.  And one had to wonder why a prominent political figure who might have been president (and might still be prime minister) should have found this a crucial task to undertake while the country was enduring spasms of violence and a decaying economy.  There is an enduring and disquieting uncertainty about a political party that recognizes the constitutional possibility that a Christian could be president of Egypt while openly and steadfastly asserting that its members would never vote for one.  

            Most stories of the revolution’s prehistory begin with trade union unrest in the Delta in the first decade of the 20^th century, the protests against the Israeli invasion of Gaza, or with the demonstration effect of events in Tunis in December 2010.  Important those instances of mass mobilization were but the atmosphere of the weeks before January 25 was filled with shadows.  The focus on the industrial cities often includes an implicit claim that class unity trumps religious division, but the history of the 20^th century is not very reassuring on that count.  The revulsion that many Egyptians felt about the bombing of the Two Saints before January 28, 2011 should not be discounted as a contributory factor to the widely discussed and frequently praised accounts of Muslim-Christian solidarity during the celebrated 18 days.   

            Recalling the bombing of the Two Saints church as the prelude to January 25 is thus necessarily an exercise in outlining the limits not only of the Egyptian uprising so far but also the limits of the parties that have emerged as the dominant political forces in its wake. 

            Religious community and prejudice point us in one important direction but also tend to obscure other, equally important and even connected, aspects of what has changed over the past two years.  Perhaps Ahmad Lutfi Ibrahim was the person behind the bombing, although it seems unlikely.  More plausible is that, as had become in common in the political life of Egypt over the past 60 years, the government chose to blame criminal behavior on someone, perhaps even a fictitious someone, who was not an Egyptian.  Egyptians, Egyptian governments have argued for a very long time, are not responsible for criminal acts of prejudice, for terrorism, or for politically motivated wrong-doing that damage national unity.  Those actions are, the public has been told time and again, the work of foreign hands, outside agents, or third parties.  Real Egyptians have no interest in breaking the unity of the nation and consequently they cannot the agents of such activity.

            Recently Ttere has been a marked decline in attempts by either the government or private persons to claim that their opponents are foreign agents or elements acting in their interest.  This is not because political discourse has become kinder and gentler.  It has become notably more intense and it is certainly not limited to debates about policy differences.  Striking, however, is how infrequently anyone levies the once-common charge that opponents are not Egyptian.  Thus when the television satirist Bassem Youssef was called in for questioning on March 30, 2013 he was accused of maligning President Morsi.  Anyone watching his show (which includes several leaders of the Salafi trend) realizes how rooted in domestic perceptions of political idiocy it is.  Political opponents now may be characterized as venal, stupid, immoral or even criminal but they are ineluctably Egyptian.  It is too early to say if this is a station on the way to a discourse that is both more civil and more probing or simply to distinct communities that refuse to listen to each other.  But it is a significant change.

            The explosion in front of the Two Saints was a purely criminal act.  For Americans it inevitably recalls the 1963 bombing of the 16^th Street Baptist Church in Montgomery, Alabama.  Like that crime, it was not an isolated event; it had a context.  It occurred, as I briefly alluded above, in a stream of assaults on Christians and their institutions over a longer time and a wider space.  Frequently these assaults involved sections of a local Muslim majority pressing demands or expressing fears against Christians:  claims that Christians were illegally building churches or imprisoning converts to Islam.  In other words, they invoked a claim that a minority was itself engaged in possibly criminal behavior that local government was either unwilling or unable to prevent.  Some, like the well-known judge Tariq al-Bishri, limited themselves to that point.  Others took the argument a step further to insist on the necessity of self-help in the absence of government action.

            The resort to self-help is always seductive and dangerous.  Seductive because it appears to be a community empowering itself against those who despoil it; dangerous precisely because, despite the language of revolutionary or religious justice with which it is sometimes imbued, it is so frequently and easily directed against the marginal, the powerless, and the impoverished.  Frequently first employed against an identifiable and less powerful minority, such violence can be and is deployed against others.  These forms of violence are, of course, illegal but governments, in some instances, have high degrees of toleration for them and Egypt is no exception on both counts.

            Successive Egyptian governments, perhaps especially in the wake of 2011, have been unwilling to react strongly against such incidents.  Not infrequently, as in an incident when a Christian man’s ear was cut off or when a church was burned down or a community driven by force from their homes and shops, the government has intervened at best in a tardy fashion and never with criminal sanctions.  It has preferred reconciliation committees in which the weaker party generally foregoes significant compensation and agrees not to participate in criminal prosecution. 

            There have been lynchings recently in which members of local communities killed alleged criminals.  The ostensible reasons range from the murder of a young child to attempted theft of a tok-tok (motorcycle-rickshaw).   Those who were lynched were tortured to death:  they were kicked, hit, knifed and ultimately literally hung from lamp-posts (in at least one case upside-down).   I am ignorant of whether this violates specific provisions of Egyptian penal law, but it certainly violates the rights of citizens enunciated articles 35, 36 and 77 of the recently adopted constitution. 

The news accounts are sketchy and occasionally suggest participants may have thought they were acting under cover of enacting a Quranic punishment against socially destructive criminal behavior.   The free use by some Islamist activists over the past year of the language of the Quranic penalties against highway robbery (the so-called hadd al-hirabah) may have had some influence, but much more important is the likely conviction in communities that without a functioning police force overwhelming chaos and criminality threaten.

Was their choice of who to find guilty any better than Habib al-Adly’s on January 24?  In the absence of mechanisms deploying either the forensic capacities of the regular police or the even more stringent evidentiary requirements of the Qur’an or classical Islamic jurisprudence we are not in a position now or even to know.   When even the Minister of Justice, Ahmad Makki, referred to the lynchings as signaling the death of the state he was repeating a profound fear of many Egyptians today.  Given the profound economic problems and the continuing violence confronting the government and the Egyptian people, finding the guilty parties behind the bombing of the Two Saints church is not now high on anyone’s agenda.    The bombing also raises too many questions about the fissures of religion, politics, and government authority to be anywhere except in the temporal limbo I described earlier for the time being.  But, depending on how these questions are resolved, there may come a time when a government decides once again to examine what happened in Alexandria and to throw some additional light on the events of the past several years. 

Those who thought reform of Egypt’s justice system on January 2, 2011 was crucial have been proven right.  It needs some new people at the top as well as a sense of commitment to making Egyptians safe from criminal violence regardless of their political or religious beliefs.   Reflecting on the Alexandria bombing in the light of recent events one thing that seems clear is that while one aspect of the present conflict centers on whether Talaat Ibrahim or Abdel Meguid Mahmoud ought to be confirmed as public prosecutor neither avenue represents a step out of the impasse.  What is needed is a different public prosecutor with a different sense of mission—perhaps even to recognize, probe and bind up the wounds of the past rather than to ignore them. 

           

           

           

           

A Funny Thing Happened on the Way to the Democratic Transition

        

        

         There is a paradigm nobody talks about much any more in regard to Egypt: the democratic transition.  The problem with the idea of democratic transition, dearly beloved by both the Obama Administration, most of my colleagues in political science, and the Muslim Brotherhood was that it presumed the institutions of the state would be passed, intact, from the old regime to the new.  Through elections, constitutions, and the circulation of new elites popular sovereignty and democratic practice would re-invigorate the barren institutions of the old order.  Where necessary, new ones would be created.

         What, we are impelled to ask, went wrong in Egypt?  What made it, one analyst is reported to have said, the stupidest transition ever or the revolution that never was?  Or did the fault lie not in our Egypt but our selves?  Not least in our inability to recognize that the complicated and confusing period, lasting a decade or more, between the first observation of revolutionary upheaval and its conclusion, is both more important and more uncertain than we feel comfortable with.

         I want to begin at the point where theories of failed revolution and failed democratic transition diverge:  the institutions of the old order.  Theorists of failed revolution tell us that too many Egypt’s old institutions and old elites survived the 2011 upheaval:  the Armed Forces, the judiciary, the bureaucracy, and the old elites.  Theorists of failed transition might seem to believe that not enough of the old institutions survived but on closer inspection they have a different concern:  given free elections and the doctrine of popular sovereignty not enough Egyptians seem to have taken the outcome of elections with sufficient seriousness.  Specifically the winners of the parliamentary and presidential elections, the Muslim Brothers, have not been accorded the legitimacy of a freely and popularly elected government.

         This is puzzling.  Free and fair elections are the tonic of transition.   All theorists of transition recognize that free elections are not “enough” as they put it to ensure democracy but free elections, by definition, they are the way in which the people express their will.  Once elections have been held it is up to the new government to do its work and for the people to wait a decent interval before judging its performance at the ballot box rather than through ongoing and defiant street demonstrations and conflict.  This is even more puzzling because it is a little difficult to argue that this has something to do with Islam since the Islamist parties won and they have no problem with asserting the doctrines of popular sovereignty and electoral legitimacy.

         The dominant concern in Egypt today is the high, and increasing, level of polarization.  It seems to be common in the US and Europe to describe this a conflict between the country’s minority urban secular middle-class and its religious (Islamic) majority.  That Egypt has become increasingly polarized is apparent but it is doubtful that the polarization that paralyzes the country is between the secular middle-class and the rest of Egypt.   Much of the violence in the streets today is occurring outside of Cairo in the Canal Zone and the provincial cities of the Delta, places not known for their large, secular middle-classes.   The violence is often specifically between the Muslim Brotherhood, its direct supporters and its occasional allies on specific issues, and the restive lower middle and working classes in these cities.  Socially we can speak of polarization on many dimensions.  There is a marked rural/urban dimension to what we see; there is also a clear aspect of educational attainment; in terms of religion there is also an obvious Christian/Muslim dimension, but within the Muslim community there may also be an antagonism based on how the Brotherhood understands Islam in the modern world (of which more below).    Lastly there is a rather widespread dissatisfaction with what many Egyptians perceive as the Brotherhood’s own internal lack of transparency and democracy and aggrandizing organizational ambitions.  These, in turn, provide both local and national elites with the basis through which they have opposed the Brotherhood but over which they have very little direct influence.

         It is possible to use electoral maps to see a geographic dimension to this increased polarization. Egypt has had two constitutional referenda, parliamentary elections (and run-offs) for two chambers, as well as a presidential election and runoff.  The elections are not strictly speaking comparable but what we see is a decline over time in turnout, relative support for the Muslim Brotherhood, and an increasing polarization centered on the Delta.  Specifically three quite different provinces—Gharbiyya, Cairo, and Minoufia—have emerged as localized centers of opposition to the Brotherhood.  All three of these provinces, which voted no in the December 2012 constitutional referendum had voted yes in the March 2011 referendum.  They also voted against Morsi in both the initial and runoff stages of the presidential election.  Gharbiyya is the province in which the textile center of Mahallah is located whose 2006 strikes are often referred to as the origin of the collapse of the Mubarak regime.  Tanta, however, also a textile center is even more strongly opposed to the MB; what may differentiate the two is the presence of the headquarters of an important Sufi order, the Badawiyya, which is located there and to which there is an annual pilgrimage.  Cairo is the most urban of the governorates and, of course, has the largest concentration of the socalled secular middle class.  Minufia is quite unlike both Cairo and Gharbiyya and the best anyone can come up with to explain its behavior is that it was the home of both Sadat and Mubarak, but this seems like weak tea.

         Given recent events it might now be possible to add the Canal cities of Suez, Pt. Said, and Ismailiya to the list of anti-MB strongholds.  There are some specific grievances in each of these three cities of which the most well-known stems from the deaths of 79 people at the Port Said soccer stadium on February 1, 2012 during a match between the local team, Al-Masri, and the Cairene Ahli team.  The death sentences handed down to 21 defendants in Port Said on January 26, 2013 led to demonstrations and riots in Port Said and demonstrations in support of the verdicts in Cairo.  The next day, itself the anniversary of the uprising that toppled Mubarak, massive riots broke out in Pt. Said and the other Canal cities as well as Alexandria.  In response President Morsi declared a state of emergency and curfew which the demonstrators promptly and publicly broke by announcing street demonstrations to begin at the same hour as the curfew.  The army refused to enforce the curfew with force and Morsi was left to slowly withdraw it and then allow it fade away.

         One of the peculiarities then of the last two years is that the authority of the executive and the legislative branches of government  have, for the time being, diminished while the authority of judicial branch and the Armed Forces (especially in the months since it relinquished power to President Morsi in August 2012) has increased.  The Armed Forces have become more independent, constitutionally and even practically, from the executive branch than at any other time in recent history and the judiciary has intervened in politics with remarkable independence over the past two years.  Sometimes, as when they dissolved Mubarak’s National Democratic party, the courts gained universal praise.  At other times, as when the Supreme Constitutional Court proclaimed the first post-Mubarak parliament elected in violation of the constitution, less so.   The courts in Egypt, as elsewhere, are a counter-majoritarian institution; their role may seem to be hard to explain in the context of the Arab world generally where such an independent court system that asserts such broad powers of review is anomalous.  It is, in fact, anomalous within the context of the French jurisprudential system from which Egypt’s judicial system springs.  Briefly what we are seeing is the result of two trends.  One is the culmination of at least a hundred years of judicial culture in Egypt based on asserting the necessity of the rule of law as a way for the ordinary courts to control the executive and asserting claims of constitutional interpretive power.  The other is the reality that, of the three branches of government, the courts have been the one to which ordinary Egyptians have resorted most frequently and with most success over the past 100 years.  The courts can be arbitrary, corrupt, and unresponsive but they have proven to be more useful than the other branches.

         It is I think for this reason that there has been, in the years since 2011, so little popular response to calls for the establishment of revolutionary tribunals.  Egyptian experience with exceptional tribunals, whether revolutionary or military, has not been positive.

         Looking forward then we can see two institutional forces with significant legitimacy: the Armed Forces and the courts.  And we can see two institutions, paradoxically based on liberal notions of legitimacy—an elected presidency and legislature—which are having the most trouble establishing broad acceptance.  One problem for the president is that he tries to wield the power of his office in ways consonant with a regime that is dead (the old republic) or with a regime that has not yet been born. 

Let us recall his attempts to deploy the power of the presidency in the interregnum between the old constitution and the new one.  SCAF had dissolved the lower house after the Supreme Court ruled it had been elected unconstitutionally.  On assuming the presidency Morsi tried to issue his own constitutional declaration ordering the lower house back into session.  The courts, the SCAF, and significant portion of public opinion rebuffed his attempt.   I have already noted that his recent attempt to create a state of emergency in the Canal provinces failed.  In November he issued a constitutional declaration that allowed him to replace the Public Prosecutor and also shielded the work of the committee writing the constitution from judicial oversight.  Massive demonstrations, including attacks on the Presidential palace, forced Morsi to rescind the declaration although not its effects and the committee wrapped up its work in record time so that a referendum could be held thereby putting the threat of judicial review behind it. 

         So, going forward politics in Egypt appears to be bounded by four forces:  the judiciary, the army, the elected legislature and presidency likely controlled by the MB, and the mass public protest.  Mass public protests, rare between 1952 and 2011, have often had the effect of forcing the executive to back down on policies and the last two years, in which they have become common, are no exception.  Unfortunately these protests have, over the past year, increasingly turned into street battles between the MB and their opponents, especially in the provincial towns.  Even casual viewers of Egyptian television recognize that the Canal cities and other towns of the interior are now the scenes of pitched battles in which people—clearly not the secular westernized intelligentsia—are determined to attack and destroy the MB’s local offices and headquarters.  The most obvious example occurred in early December 2012 when the national headquarters of the MB in Muqattam (Cairo) was torched.  Generally the police do nothing as they do nothing in most street fighting unless they themselves have been attacked.  But there are also indications in many provincial cities that MB militias and those based partly on soccer clubs now engage in routine street battles with each other.

         It may come as a surprise then to realize that the Morsi government has been able to carry out some of its responsibilities even if it has chosen to do so in ways that maximize the influence of MB’s political wing, the FJP, in politics.  The government has recently managed to pass a law allowing it to issue Islamic bonds over the opposition, not of the secular liberals who play almost no role in the Shura Council (the upper house) but over the opposition of the Azhar and the Salafi parties.  The government has been able to negotiate with the International Monetary Fund and the absence of an agreement has more to do with the IMF’s concern about Egypt’s unstable politics than with the incapacity of the government to reach an agreement with the international body.  The government does not, it is clear, have much control over the police but the opposition leadership does not have much control over the demonstrators.  If the opposition leadership often appears weak and divided it is equally clear that its base, especially in the industrial cities, is unwilling to tie its future to the National Salvation Front.  In other words, the broad outlines of power are far from settled in the country.

         New parliamentary elections will be held beginning in April.  The opposition has, for the moment, decided to boycott the elections.  Not to participate is to allow the MB and other Islamists to dominate the parliament completely which, given the new constitution, will allow them fairly wide power over society.  Whether that will come with the ability to solve the country’s pressing economic problems and increasing polarization is far from clear.  Obviously the MB hope to ride out the storm but if they do there is every reason to believe that their preference will be to impose.

         And indeed neither they nor any other government will have much time given the rapid decline of Egypt’s foreign exchange reserves, the evident lack of competitiveness in the export of manufacturing or agricultural products, and the country’s declining tourism (itself in part subject to competitive pressures since the primary tourist destination is the country’s beaches not its Pyramids). 

         Egypt is by no means a country engaged in a democratic transition.  It is a country in the midst of a revolution. For better or worse, however, unlike the classic revolutionary situations Egypt has a functioning and still respected court system (not true of France, Russia or China) and a functioning Armed Forces which will intervene to prevent the collapse of the state but not much more. 

Egypt is also a country whose urban population has been mobilized as never before and which has stayed ready to take to the streets long after most people had written that possibility off.  It is primarily the pressure of the streets that have pushed the political situation forward, but at some point the political leadership of the country must take up its real responsibility.   Egypt is now in a situation reminiscent of what, in 1975, Michel Crozier, Samuel Huntington, and Joji Watanuki called the crisis of democracy.  What they meant was that the levels of mass mobilization had undermined traditional (that is, previously existing) relations of authority within the state, the religious institutions, and elsewhere.  The masses were too eager to participate and thus, through an excess of democratic aspirations and activity, threatened democracy itself at least as Crozier, Huntington and Watanuki (and the Trilateral Commission) understood it.   The decline of authority, or haibat al-dawlah as the Arabic equivalent employed in Egypt today has it, was a moral as well as a political crisis in the minds of these three distinguished conservative intellectuals.  They could hardly imagine how such a chaotic situation would end well.   The world of the advanced industrial societies differs today from the one that existed in the first two-thirds of the twentieth century and probably also from the one that the authors of the report might have preferred.   The revolutionary democratic impulse that they feared was contained for many reasons, not least of which was the adjustment of institutions and elites to new ways of governing.   To paraphrase Lenin, revolutionary situations occur when elites can no longer govern in the old way and large numbers of people want to live in some as yet unspecified new way.  

What might this mean for Egypt?  For the MB this may mean that winning elections is no longer anywhere near sufficient as a goal.  To succeed they will need to find a different way of governing.  Today’s polarizing conflicts in Egypt are far from limited to differences between the MB and a secular, middle class (or Facebook) opposition.  It is possible that, for example, many of the young people who showed up to dance the “Harlem Shake” in front of the Muslim Brothers’ national headquarters were engaged in middle class mockery.  If that were the opposition with which the MB had to contend they would be in a very different situation than they find themselves.  The dock workers who have several times shut down the port at Ain Sokhna  (most recently in mid-February 2013) were interested neither in embarrassing the MB nor in line dancing.  Nor are industrialists like Magdi Tolba dancing for joy:  the weakened pound is causing nearly as many problems as it solves for textile exporters like him.

The National Salvation Front faces its own problems.  Frequently derided as feckless and irresponsible, they have the opposite problem of the MB: a political coalition that is sufficiently broad and whose institutional connection to its possible electoral base is sufficiently tenuous that they cannot find a way to compete coherently in the electoral process.     Whether the boycott strips the elections of legitimacy or locks the opposition into the political wilderness remains to be seen.

Even a large electoral majority in parliamentary elections may not, for the foreseeable future, translate into viable governance as popular demands continue to be expressed in ways that are both democratic and disruptive and as the political leadership of the country finds it difficult to agree on a common path forward.

        

        

        

        

Drafting a Constitution: Part II

            Constitutions define and set out relationships between the primary institutions of the state.  They also suggest some of the compromises and agreements between powerful political forces that have been necessary to create these institutions and it gives us some hints about what the drafters think political life will look like. 

On balance it looks as if, through whatever compromises they have made, the drafters of the Egyptian constitution envisage a civil state based on a very powerful executive authority rooted in but not directly managed by an elected president.   Educated professionals will play a dominant role in administration and legislation. The new state will have obligations to the sixty percent of Egyptians who are poor or illiterate but they will have no role in its institutions and relatively little in its politics. The political elite will engage in competitive elections over power and the military and the judiciary will function with significant levels of autonomy.   The military, however, will continue to be a self-contained hierarchy whereas the judiciary will, more than in the past, be institutionally divided.  Coupled with the role I discussed in an earlier post on the constitution, the constitution lays out what might be called an Islamic rechtstaat.

The draft of the constitution does not stand completely alone.  It clearly borrows quite a bit from the language of the 1971 constitution.  Perhaps strangely for a constituent assembly largely made up of supporters of political Islam it also appears to be a family resemblance to the constitution of the French Fifth Republic.  What makes this peculiar is that many of the drafters claim they want to replace statutory law borrowed from the French civil code with Islamic sharia and yet the constitution nods clearly to Paris. 

Most surprising of all, however, are the similarities between this draft and the 1923 constitution.   You could almost say this document has created an elected constitutional monarch who presides over a parliamentary system that unequally but directly apportions political power on the basis of wealth and status.  Indeed the new constitution has abandoned the language of the 1971 constitution to describe the legislative branches in favor of that of 1923.  Thus Egypt no longer will have a People’s Assembly and a Consultative Assembly; it will henceforth have (as it did in the past) a Chamber of Deputies and a Senate.

The most important relationship the constitution establishes is between the president and legislature.  At the beginning of the revolution, the Muslim Brothers had expressed their support for a parliamentary system of government.  They began to back away from that position fairly quickly and have suggested that what they want is a mixed system.  What the constitution envisages is relatively far from a mixed system.  It seems to envisage something much closer to the monarchical system that characterized what Afaf Marsot called “Egypt’s liberal age.”  Because the constitution retains an elected republican form of government it might be best called a limited elected monarchy. 

The new constitution clearly limits the power of the president relative to that of the 1956 and 1971 Egyptian constitutions. Sometimes it does so by borrowing language directly from the 1923 constitution; sometimes it does so by reference to the constitution of the French Fifth Republic. However, the limitation on the power of the presidency is not achieved by a corresponding increase in the power of the lower house, the Chamber of Deputies.  It is achieved by increasing the constitutional power of the Prime Minister even as it increases the independence of that office from the parliament.  The draft has created a strong president whose goals are accomplished through an unelected Prime Minister subject to a vote of confidence by an elected parliament.

            The simplest way to grasp the underlying dynamics for Americans is to imagine that President Obama could not directly choose his own cabinet.  Rather he would choose a General Secretary who would then choose the secretaries of the existing departments (State, Treasury, Education and so forth) and the General Secretary rather than the president would be responsible for the administration of government and would also usually chair cabinet meetings. It would not be particularly surprising to Americans to learn that Congressmen who joined the government would resign their seats. The feature that would be unfamiliar would be that although Congress could force the president to choose a new General Secretary it could not solely for political reasons force the president from office.

            The details are worth looking at a bit more closely if only to understand how the drafters have deployed language from the constitution of the monarchy to achieve their ends.

           

            Article 48 of the 1923 constitution stated that the king exercised his authority through his ministers and Article 155 of the current draft uses the same language to describe how the president exercises his. This language about the executive was absent from earlier Egyptian republican constitutions. Until now Egyptian presidents, like those in France and the US, exercised their extensive powers directly. The current draft reduces the range of presidential authority and (by adopting the language of the 1923 constitution) attempts to place a barrier between the president and the direct exercise of many of the powers of the executive branch. In so doing, of course, it creates the possibility of a potential clash between an elected president and parliament that could play out in the selection of a prime minister. This suggests that the drafters, at least, clearly envisage that the mechanisms they have put in place in the constitution to supervise free and fair elections will work and that Egypt will, henceforth, have real political pluralism. 

This present commitment is enhanced by Article 129, which makes it difficult for the president to dissolve parliament routinely.  Unfortunately the one situation in which the president is most likely to wish to dissolve parliament is not covered by Article 129, as I discuss below, which likely vitiates its importance.

Article 49 of the 1923 Constitution gave the king the absolute right to choose and dismiss ministers.  The present constitution also gives the president the unlimited right to appoint the prime minister but, as noted above, Article 129 makes it much more difficult for him to dismiss an appointed minister who has acquired parliamentary support. 

            The 1923 constitution emerged from massive demonstrations that paralyzed the old order no less than did those of early 2011. It was written by a much smaller committee whose members certainly understood at least as well as those of the present one issues of Islamic law, constitutional jurisprudence, and the historic importance of their work.  Writing as it did in the shadow of British military predominance, a profoundly conservative landed elite anchored in the royal family, and a powerful nationalist movement it wrote a document that distributed real but unequal power across the country’s institutions. There was, in 1923, no requirement that the ministers be chosen from the majority party but neither was there any prohibition on parliamentary members serving as ministers. Article 65 gave parliament the right (but not the duty) to issue a vote of non-confidence in the ministry. It was then obliged to resign.

This draft appears to be the first Egyptian constitution in which the president’s ministers (as in the French Fifth Republic) cannot be sitting parliamentarians. Deputies who join the government leave their seats. Parliament has significant influence over the president but the relationship is ultimately one-sided. Under Article 145 the president names the prime minister who then forms a government and presents its and its program to parliament. If the lower house does not reject this by a majority within thirty days then the government takes office. If the new government is rejected the president is given a second chance. If his second attempt is rejected, the president is then directed to form a government based on parliament’s proposal. If this is not accomplished within thirty days then the president dissolves parliament and new elections are held. Presumably the president can simply delay rather than appointing a ministry he or she opposes so as to call for new elections. This is the one situation in which the president not only can, but also must, dissolve the government without presenting either a justification or holding a referendum (as required in Article 129); it therefore provides the president with tremendous power in regard to a refractory sitting parliament.  The president ultimately not only can, but also must dissolve parliament; parliament can dislodge a prime minister but not a president.

This provision is evidently designed to avoid the possibility of “cohabitation” as occurred in France where the president also appoints the prime minister who must then seek parliamentary approval. On several occasions since the 1980s the president was from one party and the majority in the chamber of deputies was from another. Thus a Socialist president had to appoint right-wing ministries and once a right-wing president was forced to accept a Socialist ministry. Because the Egyptian president, unlike the French one, rules through his minister cohabitation might seem to be more dangerous. 

The draft also limits the president’s direct power in other ways. According to Article 149 the president appoints and dismisses military officials (muazzafun askariyun) and political representatives (mumaththalun siyasiyun) but not civil servants (muazzafun madaniyun) who are, according to article 164, appointed and dismissed by the prime minister.  This is clearly an attempt to re-establish the integrity of the civil service, but its implementation will depend on the probity of future prime ministers as well as additional legislation and ultimately litigation before the constitutional and administrative courts. The meaning of “political representatives” is not specified in the constitution and will probably require legislation and adjudication to define. Judging by article 13 of the French constitution, which contains similar language, it will include provincial governors, and diplomats.

Unlike the French president (Article 9 of the French constitution), the Egyptian president is not supposed to routinely preside over meetings of the council of ministers. He may call the ministers into session for important occasions and he presides over meetings he attends (Article 158). The Egyptian president neither signs nor issues the decisions of the Council of Ministers (as does the French president) which further emphasizes the degree to which the drafters, at least, envisage the ministry as independent of the presidency as well as the parliament once appointed.

The Egyptian president does give an account, at the annual inaugural joint session of the two chambers of parliament of the government’s general policy (Article 146). This largely resembles the speech from the throne in the 1923 constitution (Article 42) although the houses are not given the right of written reply they enjoyed in 1923. This address differs from the address (Article 145) that the Prime Minister is to give of his program.

The president has a variety of other powers, including the declaration of war and states of emergency subject to the approval of the legislature as well as plebiscite in the case of the latter. The president (and the legislature) may request amendments to the constitution. The president issues legislation (but not administrative regulations) and has the right to a veto.

The Prime Minister has a more significant role in many ways than the president.  The government (as opposed to “the state”) is composed of the Prime Minister, his deputies, the various ministers and their deputies and it is the prime minister who oversees the work of the other ministers and who is responsible for public security. The prime minister appoints and dismisses civil servants (Article 164) and issues regulations necessary to enforce legislation (Article 165), issue administrative and regulatory decrees as well as develop draft laws and relevant budgets to be presented to the legislature (Article 171).  The Chamber of Deputies must approve the budget initiated by the Prime Minister and may modify it but may only increase expenditures if it finds additional resources (Article 117). 

The legislature has rather limited powers:  it can propose legislation but for the most part responds to the executive. It must overcome a presidential veto with majority votes in each chamber—not an unusual requirement in strong presidential system.

If the Prime Minister controls the government there is one area in which his power and that of the president are limited: the military. The President is the supreme commander of the armed force (Article 152) and clearly makes appointments within the military. However, as outlined above it is the Prime Minister who appoints the Defense Minister and the Defense Minister is the “general commander” of the armed forces. The Defense Minister must, under Article 198, be a member of the officer’s corps and the budget of the armed forces will be provided to the legislature as a single number by a National Defense Council headed by the President but made up primarily of military and intelligence officials (Article 197). 

            Articles 197 and 198 throw significant light on the ease with which President Mohamed Morsi was able to place Generals Sami Enan and Mohamed Hussein Tantawi on retirement in August and to end the period of direct military rule. Any fears within the general staff that a return to civilian rule would imply significant civilian oversight have been assuaged. A civilian president with no previous ties to the army is now nominally in charge of the armed forces, but they have managed, for the first time in Egyptian history, to constitutionally oblige the executive to choose an officer as minister of defense and to limit legislative oversight of their budget.  When the uproar in fall 2011 over the proposal by then Vice Prime Minister Ali al-Selmi erupted it was in part because he proposed just such an article for the forthcoming constitution. The armed forces, having given way, has effectively gained what it sought then in terms of control over its own budget and a say in whether the country goes to war (which it must be admitted no government would launch against the express advice or wishes of its military commanders).

With the exception of the armed forces, the limits on legislative authority are largely in line with much European practice over the last century. What is striking is the limitation on who can serve in the legislature. One of the most contentious issues of the last two years was the insistence in Nasserist constitutions that fifty percent of parliamentarians be workers or farmers. These mandates were abused by Egyptian governments from their inception to provide a convenient cover for blatant manipulation. The present constitution has gone in the reverse direction, in ways that depart dramatically from democratic theory and Egyptian constitutional norms over much of the last century.

A fundamental feature of modern democracy is that the electorate constitutes, at least in theory, the pool for elected officials. Obviously in most representative democracies, elected officials are drawn from a relatively small subset of the electorate as a whole: the poor and poorly educated are rarely elected and women and members of minority communities are also under-represented.  The fiction (or, more kindly, the ideal) that anyone in society can serve in elected office is a basic principle of contemporary democracies. Where there are express limitations on who can serve even if everyone can vote, we are more skeptical about claims to democracy.

To serve in the Chamber of Deputies a candidate must be twenty-five years old and have completed primary education. If we simply took published illiteracy rates as a proxy for primary education (which they are likely to be because it is much easier for the government to measure school completion rates than substantive literacy) it would suggest that something like seventeen percent of the male population and thirty-five percent of the female population is ineligible to serve in the Chamber of Deputies. Reported initial enrolment rates in primary education are much higher, but, of course, these students are too young to serve in the Chamber and I have not found good recent information on measured levels of completion (although I do suspect that they are what “literacy levels” actually are measuring).

The Senate is a completely different situation. With the exception of fiscal oversight, the Senate shares legislative authority with the Chamber of Deputies. Its vote is also necessary to overcome a presidential veto. In addition, should the Chamber be dissolved, the Senate temporarily assumes its legislative functions. Its members serve a six-year term, which gives it significant greater staying capacity than either the president or the Chamber.

The president chooses twenty-five percent of the 150 members of the Senate and the rest are elected (Article 130). This is in line with the 1971 constitution in which the president chose one-third of the Consultative Council’s 132 members. As with the People’s Assembly, the Consultative Council was required to have half its members be workers and farmers. 

The language of the constitution in regard to the new Senate resurrects the language of the 1923 constitution.  The president must choose members of the Senate (Article 130) from among the country’s highest educational and political elite: former ministers and their deputies, former legislative leaders, scientists, religious figures, judges, retired military officers, and high-level civil servants. In addition, former presidents (elected after 25 January 2011) are automatically life-members of the Senate on leaving the presidency. This is remarkably similar to Article 78 of the 1923 constitution with one revealing exception. In 1923, both appointed and elected Senators were drawn from a pool with similar qualifications. In 1923, however, in addition to former officials those who owned significant amounts of property (defined by its tax) were also eligible. In 2013 elected Senators need not be drawn from the ranks of former officials nor must they own property with a minimum taxable value, but they must have completed higher (university) education. Where once physical capital was a requirement for membership in one of the legislative chambers today it has become intellectual capital but the restriction remains quite real.

It is not necessary to have a romantic view of the poor and the illiterate to believe that these restrictions are anti-democratic. Nor is it necessary to believe that Egypt should retain the Nasserist prescriptions. Relatively few workers and farmers enter legislatures anywhere; most legislators are attorneys by education. But it is profoundly undemocratic to restrict the right of the poor and the illiterate to contest. When Supreme Court Justice Tahany El-Gabali suggested unequal voting rights for the educated and the illiterate in 2011 she was pilloried, but few people seem to have noticed that the Constitutional Committee has made a very similar move. That she was a woman and the committee is largely male may have something to do with it.

The last section of the draft I address before concluding are the articles dealing with the judiciary.   There are two quite positive changes in the draft relative to the 1971 constitution.  First, the old section on state security courts has been removed. For now they no longer exist and lack direct constitutional sanction.  Second, military courts may now only try cases involving military personnel and civilians may not be tried in military courts (Article 200 and Article 62).  One of the major demands of the last two years has been to end civilian trials before exceptional or military courts and these articles together would seem to be the embodiment of that demand.  In the context of recent Egyptian history this is a very welcome development and it will also provide an immediate test of how seriously the new government takes its own constitutional obligations.

Two sections of the draft deal with the State Council and the Supreme Constitutional Court independently.  The State Council is explicitly made the sole court to decide administrative disputes, thus reinforcing its role as the guardian of the European conception of the rule of law, usually referred to as the “rechtsstaat” (Article 181). The Supreme Constitutional Court is given the task of deciding the constitutionality of legislation and deciding cases that involve disagreement between judicial bodies (Article 182).  The SCC retains its right to determine constitutionality after laws have come into effect with one exception: it must decide on the constitutionality of draft laws governing elections at any level within 15 days of their being presented by the president or the Chamber of Deputies.  Once the court has made its prior determination on draft electoral laws it loses the right to determine constitutionality under Article 182 (Article 184). 

The history of the SCC and Egyptian election law is too complex to go into here, but the drafters have stripped the SCC of its power to declare elections (and elected parliaments) invalid.  When the court did this during the Mubarak era they were hailed as champions by the Muslim Brothers who now decry them for invalidating the 2011 elections on the basis of the same jurisprudence.  Nominations for appointment to the court will also now be made by a much broader group of jurists than previously which will give the president significantly greater latitude in choosing members of the court. 

The obvious question to ask in concluding is why a committee made up largely of Islamists who decry the role of European law in Egypt directly or indirectly have chosen to write a constitution that is modeled in part on the French constitution.  That much of the language is borrowed from a constitution written under British guns is even more peculiar.

            A satisfying answer would take another essay but there are two general areas that are worth considering.  The first is simply that the present drafters, like those in 1923, face a profound and contradictory challenge.  They must find a way to make an abstract commitment to equality and democratic participation conform to their substantive preferences to maintain particular kinds of inequality.  The absence of a monarchy and the presence of a deeply-rooted (even if flawed) court system makes the challenge of writing a constitution much more complicated than in the past.  Under the 1923 constitution Egyptians did not have either “the rule of law” or a rechtsstaat in the sense that legal scholars (including Egyptian jurists) today or then understood the term.  The Mixed Courts provided foreigners with legal remedies for government abuse of power but Egyptian citizens could not use them and the National Courts did not have similar authority.  Since the creation of the State Council in 1946 and the Supreme Court in 1971, Egyptians have acquired the rule of law and it has become a deeply rooted part of their relationship to the state.  Because many of the drafters are themselves prominent jurists and because the rule of law has now become a part of the Egyptian political landscape, this constitution must deal with its existence and the significant jurisprudence it has created over the last six decades.  The constitution appears to be an attempt to create new channels of contact and legal discourse through institutional innovation and the introduction of potentially constraining Islamic language.  It certainly does not transform the ulama into powerful political actors but it will give significant support to political parties and movements whose discourse couched in terms of Islam has hitherto stood outside the framework of the rule of law in Egypt.

The 1923 constitution was written by the generation associated with the Nahda, a movement that proclaimed its role to be the revival of Arab culture, religion and politics.  The Muslim Brothers have claimed an affiliation with the Nahda.   What they and the Salafi parties share with many of the elites of the early 20^th century (including the British) is a sense of their tutelary mission over a morally deficient society.  This is clear not only from their political language but from much of the draft itself which takes care to position the state as the defender of those who require help because they are easily victimized (such as widows, orphans, and the disabled).  The constitution from which they have borrowed so heavily provides a method for maintaining inequality through the institutions of a tutelary regime in which moral authority is presented as the basis for political power.

A draft constitution claiming to defend the rights of the disabled and to reinforce the role of the Arab-Islamic heritage appears to be one that the most celebrated intellectual of the Nahda in Egypt, Taha Hussein, would have disapproved.