Egyptians have expressed anger, dismay and disdain for Field Marshall Muhammad Hussein Tantawi the former infantry commander who now heads the Supreme Council of the Armed Forces. But one thing he may learned during the Battle of the Chinese Farm between October 15 and October 17 1973 was the importance of exploiting even the smallest gaps between enemy lines and then mercilessly pursuing a defeated foe even at the risk of massive losses. That was, after all, what happened to the Sixteenth Infantry Brigade when Tantawi was a Lieutenant-Colonel facing Ariel Sharon’s assault against the Egyptian Third Army. In the last two weeks the Supreme Council of the publication of an amended version of the Constitutional Declaration, SCAF has completed the rout of its opposition. Those who were convinced there was no revolution in Egypt might be well advised to consider that SCAF, at any rate, was not in agreement.
During the first six months of 2011 SCAF moved tentatively as popular mobilization spilled into the streets and many of the institutions of governance ceased to function. By the end of the summer of 2011, however, the generals appear to have felt more sure of their position and in the months since late last summer they have responded more forcefully to challenges to their authority—whether in street fighting, massive demonstrations, or assertions of legislative sovereignty. In the last month they have moved quickly and decisively whenever opportunities presented themselves. Whether they will be able to transform tactical success into strategically successful government authority is less clear.
Many observers, from Muhammad el-Baradei to Hossam Bahgat, have noted that Egypt is now a military dictatorship in which the president’s powers are sharply diminished, parliament has been dissolved, and SCAF has been written solidly into the constitution. There are several peculiar features of the new constitution. One is the prominent role accorded to the Supreme Constitutional Court both as representative of the nation and as an institution of influence. Another is the care to preserve the existing formal structure of the government even as the relative powers of the state are radically transformed. And the third is the peculiar role the Supreme Constitutional Court is to play in the months ahead.
This is not the place for a critique of the political choices of the Muslim Brothers over the last year and a half, although such critiques are being made in Egypt. But already in early May the former judge and Islamist intellectual, Tariq al-Bishri, pointed out in a article for the daily Shorouq what he called two of their crucial mistakes. Al-Bishri, historically an ally of the MB, chided them for an unwillingness to recognize the need to move rapidly ahead with the primary task the old constitutional declaration entrusted to them: establishing a constitutional commission. They did not, he wrote, recognize the need to broaden their support rather than to gain control of the commission for themselves. He also noted that the MB had antagonized the Supreme Constitutional Court by allowing a deputy to propose a law that would have changed the composition of the court and also stripped legislation passed by a super-majority from its jurisdiction for review. Given the response by several prominent members of the Egyptian legal community, it is clear that the SCC saw this as the opening salvo in an attempt to destroy the court, its independence, and the rule of law. Withdrawing the bill is unlikely to have appeased the court. It is more likely to have convinced its members (if they needed further convincing) that the MB-dominated legislature was a continuing threat to the institution, its members, and the values they professed.
When the Supreme Court was asked to rule on the constitutionality of the law governing the parliamentary elections, they overturned the portion governing the third elected as individuals while leaving the two-thirds elected on party lists intact. They also dissolved parliament, a step they had taken in other electoral challenges during the Mubarak era, but which was certainly easier now. Under SCAF’s constitutional declaration the Egyptian parliament no longer can decide on the seating of its own members. With stunning speed, Marshall Tantawi had the parliamentary chambers locked and posted military guards outside the building to physically prevent parliamentarians from assembling. The legislature which, alone of the three branches of government, could claim to represent the public both by function and by election had ceased to exist. The Supreme Constitutional Court, with the backing of SCAF, had in effect offered itself as the embodiment of the rule of law and had staked its claim that the rule of law trumped the erratic claims of representative democracy.
Egypt hardly had time to adjust to the dissolution of parliament before the run-off presidential election began in which MB leader Muhammad Morsi faced former prime minister and air force general Ahmad Shafiq. Participation in the second round was not much higher than in the first round and revealed a country still deeply split. Given the resounding victory of the Islamist parties in the parliament elections and their claim to have been the winners in the March 2011 parliamentary referendum which passed with 77% of the vote, the outcome of the presidential election is extremely close.
While the eyes of most Egyptians were fixed on the election, SCAF took the opportunity to issue amendments and additions to the constitutional declaration of 2011. SCAF obviously intended to allow the presidential election to proceed freely because they stripped the office of much of the power it had held under the 1971 constitution and the earlier constitutional declaration. They transferred legislative power to their own hands until a new parliament is elected which includes the power to name a committee to write the constitution. They have effectively eliminated the president’s authority over the military, including the decision to declare war. Having already decreed that the military police can act with civil authority, they have added to the constitution the possibility of making the military directly responsible for public order.
These elements provide the constitutional basis for a military dictatorship in which, at least for the time being, the military authority remains wholly separate from (but by no means subordinate to) civilian authority. SCAF has, in the past two weeks, moved very rapidly to consolidate a new form of government even as the primary organized opposition, the MB, appears to be confused and uncertain about what steps to take next. They have issued statements contesting the dissolution of parliament, demanding that the constitutional committee chosen by the dissolved parliament meet, and they have continued to contest the election. The problem, however, as both Amnon Reshef and Hussein Tantawi will tell them from the experience at the Chinese Farm, is that declarations do not win battles. And at this point, with their narrow victory at the polls over the candidate of the old order bolstered by a significant number of voters who actively dislike them, the MB do not have the troops or the audacity to press forward.
One peculiar feature of the constitutional declaration is the role it accords to the Supreme Constitutional Court. The president was to have taken the oath of office before parliament which is, in most democratic republics, the representative of the nation. The newly elected Egyptian president will, in the absence of a parliament, be sworn in before the SCC which therefore becomes a kind of symbol of the nation although not its actual representative. In addition the new declaration empowers a select group of Egyptians (the president of the republic, the president of SCAF, the Prime Minister, a high judicial official, or 20 percent of the constitutional committee) to object to portions of the constitution as it is being written. These objections will be brought to the SCC which will make a final decision about whether they accord with the objectives of the revolution. This is a remarkable grant of constitution-making (and not just interpretive) authority to the SCC. It is, in a sense, a reversal and repudiation of the approach taken by the MB and their Salafi allies in the legislature when they claimed that the power of democratic majority gave them the unrestricted power to write a constitution.
Europe’s liberal autocracies of the late 19th century were premised on the supremacy of a written constitution and primarily organized through administrative law. Often referred to as a Rechtsstaat in which both democracy and substantive notions of justice were subordinated to the application of a civil code through a bureaucratic state it was widely perceived as the basis for economic growth and ultimate political participation. The SCC and SCAF have, for the moment, not only vanquished the Islamist movements which had opened themselves up to assault but they have positioned themselves jointly at the heart of whatever political regime governs Egypt in the immediate future. They have also vanquished the institution, the legislature, which posed the most dangerous challenge to the idea of social order they prefer and they have transformed the presidency into a modest position.
For the short-term this is a profound check on popular participation in Egyptian political life. What is ironic, however, is that the military has now accomplished what the MB could not have imagined: limiting the power of the presidency. Whether by then, the Supreme Constitutional Court which is clearly a junior partner in the emerging system of government in Egypt, retains the popular respect so necessary for the judicial branch to function is anybody’s guess.