Political Conflict and Legal Maneuvering

           

            In the wake of Mohammad Morsi’s assumption of the Egyptian presidency, Egyptian politics suddenly became clear.  It was obvious the Muslim Brothers decisively took charge of Egyptian politics and it was only a matter of time before they gained control over the Army.  Except of course to the people to whom it was equally obvious that the Supreme Council of the Armed Forces took control and it’s only a matter of time until Morsi and the Muslim Brothers are out of power and back on the streets.  And the MB and SCAF have made a deal.  Or perhaps not.  But what the events of the last couple of days show is that after a year and a half of tumultuous politics in Egypt nothing is really settled. 

The January 25 uprising brought into the open profound social and economic cleavages and conflicts and the elections since have brought into the open some equally profound conflicts between political organizations.  What the so-called transitional period, and especially the events of the last two months have brought into the open, are the open institutional conflicts which have yet to be resolved.  These institutional conflicts range from conflicts between the different branches of government to conflicts between state organizations and between institutions of governance and those in civil society.  Most of the discussion about Egyptian politics for the last year and a half has been about only the last of those conflicts which encompasses but is not limited to the struggle for power between the Supreme Council of the Armed Forces and the Muslim Brothers. 

            Egypt is, as the sociologist Hania Sholkamy pointed out several weeks ago, a country of institutions.  This is so obviously true that its importance tends, as she argued, to escape most observers.  Unlike Libya where the Qaddafi regime spent 40 years diminishing if not eliminating them or Syria where they are largely subordinate to the leader, Egypt has distinct, active, and in many cases surprisingly effective institutions.  The Egyptian Army is one such institution as commentators pointed out ad nauseam in February 2011 to explain why the Egyptian Armed Forces were supposedly so much friendlier to democratic transition than their Syrian or Yemeni counterparts.  The Egyptian presidency is another such institution.  It is easy to forget that one of the remarkable features of Egyptian governance over the last 60 years was the institutionalization of presidential authoritarianism which long outlasted its founder, Gamal Abdel Nasser who died 40 years ago.  The Azhar is another much older institution as is the state university system, for all its many flaws including enormous size, over-great centralization, and declining quality. 

There is a temptation, plausible if resistible, to call the judiciary the crown jewel of Egyptian institutions.  Certainly the Egyptian judiciary and especially its highest bodies (the SCC, the Supreme Administrative Court and the Court of Cassation) have well trained personnel, command significant respect, and play remarkably independent if occasionally conflicting roles.  The judiciary, like the Azhar and the university system, have had moments of grandeur over the last century and have on occasion been staffed by individuals of real, and even universally acclaimed, brilliance as well as significant competence.   They have also had moments of profound mediocrity and personnel whose corrupt behavior, individual idiosyncrasy, or simple subservience have been embarrassing and destructive.

The two primary contenders for power at the moment, the military and the Muslim Brothers have each begun to legitimate their authority by claiming to uphold the law rather than transform it through revolutionary action.  SCAF, which seized power during the massive demonstrations of February 2011, has long claimed to be merely guiding Egypt toward a democratic order.  That its seizure of power was unconstitutional, that it has written constitutional declarations at will, and that it is a largely unconstrained power is a reality it prefers to soften by claiming merely to protect legally constituted authority.  The MB, a highly disciplined cadre organization, whose leaders more than occasionally evince a devotion to reforming society as the embodiment of the Egyptian conscience expressed through devotion to shariah, have also preferred to deploy the language of respect for law as well as order.  For the MB, however, the source of law is, not surprisingly, popular sovereignty manifested in the electoral process that has brought them to the presidency and the legislature.

             

            The problem with thinking of Egyptian politics as a two-party game is that there are more than two actors.  In the last 18 months, for example, the judiciary has become more institutionally more prominent in politics and the courts and the legal system have increasingly become areas within which and about which intense political conflict occurs.  It may be stretching a point to say that the judiciary have emerged as the real contenders and perhaps also as winners over the last 18 months.  It is certainly no overstatement to say that, for now, the MB, SCAF, and many politically influential individuals and parties seek to clothe themselves in the garments of legality. 

The most recent conflict over legality and the role of the courts began in mid-June when the Supreme Constitutional Court decided that the rules governing the election of individuals to the national parliament last winter violated the constitution.  Individual candidates constituted one-third of the parliament and the court had no evident problem with members elected by proportional representation.  In response to the ruling SCAF, acting in its capacity as the country’s executive authority, dissolved the parliament and took back for itself the legislative power that it had ceded when the legislature took office.   In the 1990s the Mubarak government had dissolved parliament and held new elections in response to similar SCC rulings.   Many jurists and attorneys had expected such a ruling from the moment the electoral law was written in 2011 (including the famous whistle-blowing judge, Noha al-Zeiny, whose revelations about electoral fraud in 2005 in Damanhour were instrumental in court rulings at the time) but the rapidity with which the court reached its decision was a surprise.  The Islamist majority in the parliament and the courts have been on a collision course for months, notably over the issue of judicial review. 

Dissolving the parliament where the MB held effectively a majority of the seats eliminated their institutional political base in government.  It did not eliminate their membership nor their broader electoral base.  The dissolution occurred just as the second round of voting in the presidential election was held.  In the first round, the FJP had seen a marked diminution of the electoral support  that provided its earlier overwhelming parliamentary success.   Morsi narrowly won the presidency with a campaign that promised, in 100 days, to solve 64 of Egypt’s basic problems with food, traffic, energy and security.  The calendar is moving but none of the problems identified on his “Morsi-meter” website have been addressed.  Instead of addressing routine problems of governance, he has chosen to confront SCAF, the SCC, and at least half the country over presidential authority and the distribution of power across government institutions. 

            The judiciary and the executive are engaged at every level from the simplest to the most complex.  When the Freedom and Justice party/MB candidate Muhammad Morsi narrowly won the presidency, Farouq Sultan the SCC chief justice announced his victory.  Sultan was a controversial appointment to the SCC because he had spent much of his career in the military and state security courts.  As head of the SCC he was also head of the Presidential Election Commission.  He reached mandatory retirement last week and received an official farewell from Morsi as president.  Because parliament had been dissolved, Morsi was required to take the oath of office before Sultan and the SCC.  Morsi was extremely unwilling to take the oath before the court and at one point, Justice Tahany El-Gebali, publicly branded refusal an act of treason.   

            Morsi’s powers as president were limited by a revised version of the Constitutional Declaration issued June 18.   The limitations are real but Morsi retains significant authority as president; not least of these is the power to revoke prior presidential decrees as well as the power to appoint government ministers and presumably at some point members of the SCC.  He also has the power to call parliament into session and dissolve it.  It was a combination of these authorities that Morsi invoked last week.  Acting as president he revoked the SCAF decree that had dissolved parliament and acting in a different capacity as president he convened parliament.  Both of these acts are within his authority and neither explicitly contravenes the SCC’s ruling on the parliamentary election.  When performed together, however, the overall effect is a striking challenge to the SCC, SCAF, and the rule of law.  And, as so often in the last 18 months, it is done explicitly when Islamists and others have clashed, the Islamists have plausibly claimed to be acting on behalf of the sovereign authority of the democratic majority.

Morsi’s decision to convoke the parliament challenges the SCC for obvious reasons but the challenge to SCAF is not merely the revocation of their prior edict.  It also challenges their claim to have regained legislative authority.  And it implicitly reverses any claim that the acts of the People’s Assembly and the Shoura Council were invalid.  The most important of these acts was the choice of a constituent assembly to write a new constitution.

           

            That Egypt is politically divided and has become more so over the last 18 months is no secret.  More than 75 percent of Egyptians voted to approve the constitutional amendments in March 2011 which led the Muslim Brothers and Salafi political activists to claim the majority of the country was squarely behind them.  Since that referendum the Salafis have gained political clout at the expense of the Muslim Brothers and most recently the presidential candidate, Mohammad Morsi, they jointly backed in a run-off won barely more than 51 percent of the vote against a former air force general and old regime Prime Minister. 

            There have been attempts to diminish the perception that political conflict is widespread by claiming that former general Ahmed Shafiq, had only limited support.  Mapping the electoral outcome, however, shows a very clear geographical core of about a third of the country, extending from Cairo north nearly to the Mediterranean coast, in which Shafiq won consistent majorities.  Morsi’s narrow victory came from the area to the south of Cairo, and a belt of provinces around the Shafiq core.  Looking at the map produced by Eric Schewe linked below it is very clear that the vote for Shafiq was neither geographically nor socially narrow.

           Egypt elections map

                 

            Besides geography, this division of the country implies that the now-dissolved National Democratic party, the governing party from its creation by President Anwar Sadat in the 1970s until 2011, has survived the revolution. Whether its rebirth is solely the result of its own efforts or has been aided by other forces, such as the Wafd party, is hard to tell.  But the results do suggest that just as with the communist parties in Eastern Europe (not to mention the Italian Christian Democrats, the Japanese Liberal Democrats, and the Institutional Revolutionary Party in Mexico) a party that linked patronage and governance for several generations will not go quietly extinct.  It may take a year or it make take a decade but short of more extreme legal repression against the members they will return to compete for power sooner or later.  Thirty years of political repression obviously did not obliterate the Wafd, the party that dominated Egyptian politics from 1919 until 1952.  A shadow of pre-Nasser self, it was still the largest non-Islamist party in the now-dissolved parliament.

            For the first time in 60 years therefore Egypt has open and persistent political conflict reflected geographically as well as institutionally and socially.   Whether future elections are based on individual candidacies or proportional representation they will continue to be based on local constituencies and will therefore reflect the geographical distribution of political difference.  I will return to this point at the end but its political implications are apparent:  politics will be local. 

            In modern states the legislature is the representative branch in name and in practice.  The legislature reflects more closely than the executive or the judiciary the opinions, prejudices, and even the appearance of the citizens at large.  Legislators rarely enter office with the extensive education or socialization that characterizes the judiciary and they are invariably more connected to the demands and needs of constituents than any president or prime minister.  The head of state may represent the people in foreign affairs but the legislature embodies popular sovereignty.  The MB has relied on the language of democracy, revolution, and popular sovereignty to buttress its claims to authority.  In the process its supporters have claimed that the SCC is a collection of corrupt remnants of the old regime.  There is a heavy irony in this because it was an SCC ruling in the 1980s that forced the Mubarak government to allow individual candidates to run which was one way for the MB to elect parliamentarians before 2011.

The 2011 constitutional referendum and declaration endowed the legislature to be elected with one primary task:  choosing a constituent assembly to write a new constitution.  The language conferring this task placed it simply and absolutely in the authority of the legislature.   Islamist legislators (in this case the MB and the Salafi parties) held an absolute majority and nominated themselves as a majority for the assembly.  The bulk of the non-Islamist members of the Assembly withdrew and there were significant protests.   The assembly majority had deployed its absolute prerogative to dominate the writing of a new constitution to the dissatisfaction of many other political forces and institutions:  the Azhar, the Church, the secular liberals, and ultimately the Supreme Council of the Armed Forces. 

The military, of course, had the power to intervene and set aside the constituent assembly and perhaps the generals discussed the possibility.  They could not have relished reversing so obviously their promise to return political authority to an elected government in a document they themselves had written and for which they had gained national approval.  Their earlier attempts to shape the constitution in the socalled “Selmi Document” presented by former Deputy Prime Minister Ali El-Selmi had already been formally rejected by the MB backed up by massive demonstrations in Tahrir Square.  Egypt appeared to be in a classical political confrontation characteristic of revolutionary dual power.  The legislature and its majority in early 2012 had chosen to use its political power to impose its own sovereign vision on the country; others resisted.  In France in 1789 or Russia in 1917 the outcome of a similar confrontation was resolved in the streets by popular mobilization whereas in Chile in 1973 it was resolved by the use of massive force.

In Egypt it was resolved in court. 

In addition to the protests, several suits had been filed challenging the composition of the constituent assembly.   On April 10 the Supreme Administrative Court ruled that the constituent assembly had been improperly chosen by the then-sitting parliament and ordered it suspended.  This was a strange, if for many people welcome, intrusion by the judiciary into the work of the legislative branch.   The Supreme Administrative Court, modeled on the European system, differs from the Supreme Constitutional Court.  The SAC is supposed to determine whether government officials abide by the laws that define their authority.  Legislators are not usually considered government officials because they are not appointed.  The choice of the constituent assembly was, in addition, a sovereign act of the legislature and had been unconstrained by the constitution.  It was therefore peculiar that the administrative courts would intervene to overturn the one act the legislature had been elected to perform and to use the argument that it had not followed the appropriate procedure.  Nevertheless, in issuing that decision to SAC defused a possible crisis at least for a while that the actors appeared unable to resolve on their own. The SAC has also issued its own decisions including one in late June about whether the military police could arrest citizens.  The Minister of Justice had decided they could; the SAC decided they could not.  

The SCC has, in the latest iteration of the constitution promulgated by SCAF a special role.  In the event of conflict over any provision of the constitution that troubles SCAF the SCC is empowered to determine whether it should be adopted.  The SCC, in short, has now been given the role of “supra-constitutional” authority about which there was so much conflict in the fall of 2011 and which formed part of the debate over the Selmi document.  Nathan Brown, a scholar at George Washington University has written “Giving the constitutional court a binding veto over any constitutional provision with only the vaguest guidance on the standards to use is simply a constitutional obscenity.”   In effect the SCC is now responsible for writing the constitution although should the parliament return to session it may contest this responsibility.  

Constitutional obscenity or not, the decision by SCAF to give the SCC veto power over an as yet unwritten constitution reveals the degree to which there is as yet no clear victor in the ongoing conflict over power, and especially the power to determine the institutional framework of the Second Republic.  The power of the judiciary is partly a function of the strength of the conflicts they are called to adjudicate.  In periods when the executive—whether the British imperial authorities or the government under Nasser and later Sadat—comfortably dominated politics writing a constitution was straightforward.  Even the highly undemocratic and rapidly repudiated Sidqi constitution of 1930 that stripped away universal male suffrage was written with more certainly than the one presently under negotiation.  Where, as in Tunisia, the constituent assembly itself has legitimacy it can also write a constitution without external interference. 

Unfortunately no Egyptian Dickens has yet come forward to describe the legal system in the detail with which Bleak House describes the British Chancery Court.  It is the SAC that may ultimately be given the task of determining the consequences of the SCC’s ruling on parliament.  The ruling itself will stand but how it is implemented may still be the subject of litigation before the SAC.  As I write this SCAF has issued a vague statement subject to different interpretations.  SCAF continues to present itself as the defender of the rule of law and that President Morsi has positioned himself as a defender of popular sovereignty who has no intention of interfering with the rule of law is telling.

In a country whose most recent election showed it to be nearly divided in two, the two primary antagonists seem to be planning on provoking an intemperate but also unsuccessful attack on the rule of law from the other.   So far this has had the appearance of an elaborate nearly ritual performance whose rules may be clear to the protagonists but which are confusing to the rest of us.  It is probably a mistake to confuse what looks like choreography for collusion.  It is also, I think, a mistake to conflate the institutional and ideological conflicts between jurists and the judiciary on the one hand and parliamentarians and politicians on the other with corruption, intolerance, or moral turpitude.  There are sufficient ethical shortcomings and lack of political vision all around, but there are also profound institutional conflicts between counter-majoritarian judiciaries and legislators who soundly believe they represent the best prejudices of society. 

The electorate certainly and probably the larger population as well is both geographically divided and still uncertain of its political allegiances.  A glance at Schewe's map referenced above suggests how sharp has been the turn against the MB in some areas even if the reasons for the turn remain obscure.  The map also has an accidental but real resemblance to claims by SCAF and others earlier in the year that Egypt could be divided into four statelets.  While that idea is absurd on its face, the existence of some very strong tendencies toward regional difference beyond the traditional division into north and south are likely to become more rather than less important.

Constitutional scholars and the judiciary appear to be split over the whether Morsi can re-convene parliament and whether he has now (as some claim) violated his oath of office to uphold the constitution.  The answer will be neither legal nor intellectual but it may yet turn out to be judicial.  Or it may not be.  When the Chilean military moved against President Salvador Allende in 1973, it was ostensibly to defend the rule of law.