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.

           

Round Two: A Quick Look at the Presidential Run-Off

            Just when the pace of events in Egypt appears to be slowing down, it speeds up again.  It’s been four days since the second round of the presidential election but the outcome has not been officially announced and it’s already fading into the distant past.  As things stand it appears that Muhammad Morsi, the candidate of the Muslim Brotherhood’s Freedom and Justice party, won the election with 52 percent of the votes cast.  The official results have not yet been announced by the Presidential Election Commission and there is concern about what its announcement will be.  Some wags have predicted that it will announce that former Prime Minister and Air Force General Ahmad Shafiq won with 90 percent of the vote.

            The Muslim Brothers, among others, have published figures based on the vote tallies at the governorate and district level where they were allowed to see the results.   So has the Ahram newspaper which I have used for writing this entry. The Carter Center has voiced reservations about the political context within which the election occurred but less so about its mechanics:

“These provisions helped to instil confidence in the final results by ensuring that agents had verifiable information regarding electoral results in their jurisdictions. In addition, Carter Center witnesses reported improved access to District General Committees, although domestic witnesses continued to face obstacles to meaningful observation there.  However, given the fact that there is no outside access to the final aggregation of results, it is essential that the PEC publish vote results broken down to the polling station level at the earliest possible instance on their website. In meetings with The Carter Center, the PEC has committed to do so within one week of the election.”

            Without more, lower-level results than we have and adequate complementary demographic statistics it is no more possible to understand what the presidential vote means than it was with the parliamentary vote.  We can guess about the transition from the first to the second round with some level of confidence. Generally speaking it seems plausible that Shafiq picked up Amr Moussa’s voters from the first round and that Morsi picked up some combination of votes from Abu al-Futouh and Hamdeen Sabbahi.  About 10 % more people voted in the run-off than in the first round but Morsi could not have picked up both Abu al-Futouh’s voters and Sabbahi’s or he would have won more decisively than he seems to have.   

For the moment the best I can think of to do is to look at briefly at some of the districts where Shafiq and Morsi won and compare those to the inaccurate impressions one has of the districts.  There were some surprises.  Without time to make an adequate assessment of instant and popular analyses, my sense is that most people think that, in general, Christians, the well-off, touristic areas, and those  who live in particular strongholds of the old regime voted for Shafiq whereas the lower middle class, the poor, and the devout Muslims voted for Mursi.   This is itself a reflection of a set of images long beloved in Egypt (and elsewhere) about the relationship of class to nationalism refracted through voting patterns.  The poor and the working class are most committed to revolution and patriotism the argument goes.  Unfortunately as generations of communists and nationalists painfully discovered, it ain’t necessarily so.

            Shafiq won a majority of the votes in Cairo (the city is the governorate) or 1.89 million out of 3.4 million cast.  As might be expected he did well in Shubra, Madinat Nasr, Ain Shams, and the silk-stocking neighborhood of Qasr al-Nil.  More surprisingly he also strongly carried the poorer neighborhoods of Darb al-Ahmar, El-Zawiya el-Hamra, and Sayyida Zainab.   El-Zawiya Al-Hamra returned parliamentary representatives from the MB as did much of the rest of Cairo.  So Shafiq’s victory in these districts is indicative of some change.  Economic distress is one possibility but another is that other patterns of religious mobilization among the Muslim population are beginning to occur which could include both Sufi orders or simply political choices reflecting a stronger orientation to the world of the Azhar (which did not institutionally support a candidate).

            Morsi did exceptionally well in the province of Fayoum with 593,000 votes out of 762,000 cast (just a note: I’ve rounded all the numbers to the nearest thousand).  Shafiq, on the the other hand, did exceptionally well in Minufia where he gained 947,000 out of 1.32 million votes cast.  Those who savor the irony of fate (a popular Egyptian Facebook meme these days) might notice that the only district in Minufia Morsi won was “Sadat.”  This outcome may be due to some character of the province (or what we might account for in the language of heavier statistical artillery, fixed effects).  It would be easy to make up a story about Minufia as a conservative bulwark of old regime remnants or benighted peasants in which case I suppose Fayoum would be where the revolutionary (or at least Islamist but less plausibly more Muslim) peasants live.  More likely there may be significant sociological or economic differences between these two areas that would be worth investigation.  What is clear is that rurality alone doesn’t seem to explain much.

            Other provinces suggest a very different kind of story, more like that of Cairo.  In Giza the two candidates split the vote, but Shafiq won Imbaba the lower-class district where religious violence flared in May 2011 and which had been an “Islamic emirate” in the 1990s.  The more upscale areas of Doqqi and Agouza went for Shafiq while in the more rural districts of Kerdasa and Hawamdieh Mursi won heavily.  Atfih, another site of violence against Christians, voted very strongly for Mursi.  In Alexandria, Amiriyah’s two districts overwhelmingly supported Morsi which could suggest either that inter-religious strife plays a mobilizing role for electoral politics in Egypt or that areas with a tendency for high levels of Islamist organization are also more likely to experience religious conflict.  Or, if taken in concert with the results of Imbaba, it may suggest that there are some important differences in religious conflict and its impact on various areas.  The conflict in Imbaba may have appeared to local residents to have had its roots in outside issues.  It developed out of a claim by a Muslim man not originally from the area that a church was holding his wife, who converted from Christianity, a virtual prisoner.  In Atfih and Amiriyah the conflicts appear to have originally been rooted in local antagonisms including property disputes.

            Shafiq did exceptionally well in the areas in and around the cities of Mansourah and Mit Ghamr in Daqahliyah, but the most surprising results appear to be in Gharbiya province.  Shafiq crushed Mursi in and around Tanta as well as in and around the famed working-class textile center of Mahallah al-Kubra and in Kafr al-Zayyat.  It is impossible to say how well Shafiq did with working-class voters but he clearly did very well in urban areas historically associated with strikes, Egypt’s left, and the industrial working class.   Comparisons with earlier elections this year cannot be very meaningful because the voting districts differ across elections.  For example, Gharbiya had two districts for the proportional representation contests for the parliament whereas the presidential results are reported on the basis the regular administrative divisions of the province.  It is nevertheless worth noting that Mursi received fewer votes than the combined total of the FJP and Salafi parties (totals are reported for both Nour and Construction and Development) which together received more than 50 percent of the province’s vote.  Together these parties received more than 650,000 votes in the parliamentary election in Gharbiya but Morsi was credited with 583,000 votes in the presidential contest. The provisional (but complete) returns for the presidential election in the province reported by Al-Ahram give Shafiq 993,000 votes out of 1.58 million cast.  These are clearly much larger than the totals for the Wafd and Election Bloc which won seats with something like 100,000 votes across the two districts that made up the province. 

This story was somewhat lightly repeated in one other area with similar associations, Shubra al-Khayma in Qalyubiya province on the northern outskirts of Cairo.  The equally strong textile center and old leftist stronghold of Kafr al-Dawar, on the other hand, gave 71,000 votes out of 106,000 to Mursi and the markaz Kafr al-Dawar also voted heavily for Mursi (103,000 votes out of 145,000 cast).  

            Much of the meaning of the vote remains hidden from our view given the paucity of information.   But it is, I think, apparent that the Egyptian electorate continues to change as it is presented with different challenges rather than being a monolithic bloc as may have appeared during the March 2011 referendum.  It also suggests that the use of the term “felool” (“remnants” of the old regime) will remain a powerful political tool.  But it may not be a good idea to base analysis of Egypt’s ongoing politics on the idea that the electoral base of politicians such as Shafiq, obviously himself a remnant of the old regime, is itself a stable, uniform, and minor feature of Egyptian political life. 

           

The Egyptian Military On the Offensive

   
    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.

The Missing Ikhwan and An Electorate Split in Three

    The first round of the Egyptian presidential election, like every other election over the past year and a half and unlike those over the previous 60 years, brought its own surprises.  The usually unreliable polls were again wrong as were most of the pundits (both Egyptian and foreign).  In first place was Muhammad Morsy, the second-choice candidate of the Muslim Brother’s political wing, the Freedom and Justice party. Close by in second place was deposed President Hosny Mubarak’s last prime minister, the former air force general Ahmad Shafiq.  The two candidates who had widely been presumed frontrunners, the liberal Islamist Abd al-Munim Abu al-Futouh and Mubarak’s former foreign minister and head of the Arab League, Amr Moussa, took fourth and distant fifth places respectively.  The surprisingly strong third place candidate, Hamdeen Sabbahi, had been written off by most observers and many activists as too secular, too nationalist, and too Nasserist to be anything but a has-been.  A shift of a tad more than 3% of the vote would have put him in the final round with Morsy. 

    Most Egyptians probably consider the contest between Morsy and Shafiq an apocalyptic scenario although for very different reasons.  The MB see events since January 2011 as a successful revolution that has brought them, for the first time in their history, to the power that their popular support warrants.  They fear that President Shafiq would restore the old order, not only stripping the MB of its newfound power and influence, but hunting down its leaders for trial and jail. For them this is a moment in which their existential fears and hopes are on the line.  So too for many of Shafiq’s supporters who saw the revolution as an overly zealous assault on a stable and increasingly wealthy society that has long since exceeded any reasonable bounds.  They fear that a Morsy presidency would allow the Muslim Brothers to combine their control of parliament with the power of the executive to dominate the country as did the old regime but with the additional, revolutionary intent of enforcing their particular version of Islamic law and politics.  Supporters of the losing candidates in large measure see the revolutionary events of 2011 as an incomplete and failing endeavor to change Egyptian politics profoundly. For them no matter which candidate wins, the hope of a more open, socially just, and truly pluralist order will be lost in a renewed dictatorship. The perceived stakes of this election are, therefore, exceptionally high.

    While it often has appeared that Egypt was divided into revolutionary and counter-revolutionary camps, this election indicates there are at least three major groups in the country:  the Islamists centered in the MB, partisans of law and the old order, and supporters of a populist social-welfare state broadly construed.  Each seems to be able to regularly command about a third of the electorate and there is no reason to believe that any of them will be leaving the scene any time soon.

    After a year in which the Islamist movements and especially the Muslim Brothers, appeared to have dominated politics, the presidential election revealed a very different political landscape to the complete dismay of many Egyptians.  The election campaign and even more the pre-campaign were, as most of the last 18 months have been, an emotional roller coaster.  The first-choice candidate of the Muslim Brothers, the deputy general guide Khairat Shater, was disqualified because he had been convicted (on trumped-up charges) of a felony fewer than 5 years before the election.  A week after the first round of the presidential election the MB-dominated parliament finally proposed a law granting political amnesty to those convicted of political crimes under the Mubarak era.  Had they moved more expeditiously Shater could have run as could Ayman Nour, who had challenged Mubarak in 2005 and served four years in prison for his temerity.  The presidential commission also disqualified the Salafi candidate, Hazem Salah Abou-Ismail who violated a constitutional requirement that no candidate for president have parents with non-Egyptian citizenship.   Abou-Ismail himself had supported a yes vote in the constitutional referendum which made that a binding condition despite knowing that  his mother had become an American.  He knew then, as when he proposed running for the presidency, that he was in complete violation of the constitutional provision which, unlike the abrogation of the political rights of felons, could not be changed by an act of parliament.

    It is no small irony that Abou-Ismail was disqualified for having a parent who became an American at the end of her life.  So, too, would any Egyptian married to a foreigner whereas Morsy can be president despite having children who are US citizens because they were born here while he attended graduate school and worked as a professor in the California State university system. The somewhat xenophobic idea that the presidency must be an office reserved for pure Egyptians, untainted by intimate connections with foreign countries in their childhood or their marital bed, runs headlong into the reality that many professional and middle-class Egyptians have a variety of relationships with the United States, European countries, or the rest of the Arab world. 

    Many polls were conducted in the weeks before the election and the invariably showed Morsy winning less than 10% of the vote while bestowing the leading positions on Moussa and Abou al-Futouh.  The two conducted the first open debate between presidential candidates in Arab history during which they traded barbed comments and directly insulting questions.  Morsy and Shafiq, meanwhile, the two least charismatic figures in the race, were ignored or (when remembered) mocked.  By the end of the campaign, even English speakers knew that Morsy was the Brotherhood’s “spare tire” without having to reflect much on the level of preparation and discipline required thereby.  The MB’s decision to field a presidential candidate after months of denying that they would remains something of a mystery but one obvious reality is that they had come to realize that almost any president other than one of their own would rapidly move to restrict their power.  Another irony of contemporary Egyptian politics, frequently noted by Abou al-Futouh (himself a former member of their inner leadership) is that the MB does not, strictly speaking, have legal status.  Rather like the foreign NGOs whose staff were charged with criminal behavior in the winter, the MB is not a registered organization and neither its finances, elections, nor internal organization are subject to public review or government regulation.  Unlike the NGOs, however, the MB is a powerful political and social force but, in the wake of the revolution, it could be transformed by a president bent on making it at once legal and weakened.  This Abou al-Futouh explicitly promised to do.

    Believing, as did most observers (including me had I been asked), that the second round would be a battle between Abou al-Futouh, representing the hopes of the revolution, and Moussa, representing the fears of the feloul (the conservatives and remnants of the old regime), many activists and members of the political elite spent weeks debating whether it made more strategic sense to back Abu al-Futouh from the beginning or wait.  The best strategic thinking was that Moussa would come in first, that Sabbahi would pull votes away from Abou al-Futouh leaving Morsy to sneak into the second round.  The scenarios widely (and at times wildly) considered were many but usually included a run-off between Abou al-Futouh and Morsy which would insure some form of Islamist domination of the presidency or between Abou al-Futouh and Moussa in which Egyptians would have to decide whether to back the most liberal of the Islamists or the most conservative of the liberals.  The country, everybody knew, was dividing into two camps: the revolution and the counter-revolution of the generals.

    Although the second and final round of the election will necessarily require a division of Egypt into two camps, the arithmetic of the first suggests that some surprising governing coalitions are possible.  The top five candidates received about 98% of the vote so we can ignore the remaining eight.  The first two, obvious coalitions, represent the hopes of the MB and the old regime respectively.  Morsy hopes he can combine Abu al-Futouh’s 17.5% of the vote with his own 25% of the vote and half of Sabbahi’s vote and govern through what he and his supporters will deem a revolutionary Islamic coalition.  This assumes, of course, that all or almost all of Abu al-Futouh’s supporters prefer an Islamic candidate and that many of Sabbahi’s voters will not cast ballots for a former Mubarak official.  Shafiq, on the contrary, assumes that he can combine his 23% of the vote with Moussa’s 11% and win a significant portion of Sabbahi’s voters who have already demonstrated that they will not vote for the MB.  There is also every reason to believe that Shafiq will benefit more from abstentions than the MB because abstainers are more likely to be found among dismayed supporters of Abu al-Futouh and Sabbahi than among supporters of Moussa and Shafiq for whom this election poses an existential challenge.  No longer available but tantalizing was a different coalition that earlier seemed impossible.  Had, for example, Sabbahi and Abu al-Futouh run as a presidential/vice presidential ticket together there is every reason now to believe that Sabbahi would have gained some 30% of the vote and entered the run-off with Morsy with the near certainty that supporters of Moussa and Shafiq (a combined 35% of the vote)  would vote for any opponent of the MB. 

    A last coalition of sorts that nobody talks about but obviously exists at least in theory is a “coalition of order” between the MB, Shafiq and Moussa supporters.  If the assumption that guides the “Islamic revolutionary” coalition is that the MB were part of the revolution, there is also the possibility that they now speak for a large group of Egyptians for whom the revolution has gone far enough and who want a return to “normalcy.”  Between Shafiq who believes the revolution has gone too far and the MB who believe they have brought it just far enough there is more room for political compromise than there would have been between either of these camps and Sabbahi.  A Shafiq presidency with significant MB participation in the government could easily claim to represent some 60% of Egyptians.  Shafiq would be unlikely to give the MB the socalled ministries of sovereignty but he might be quite willing to entrust them with several of the social ministries. 

    While any dreams of a Sabbahy-Abu al-Futouh ticket are now spilt milk they do suggest a profound problem with the Egypt’s oppositional political leadership:  a seeming inability to put personal or partisan advantage aside which ultimately cripples their ability to accomplish their own goals.  Given that there was no prior electoral experience to suggest that Sabbahy had significant support that outweighed that of Abu al-Futouh their difficulty in reaching a common candidacy is understandable. It will nevertheless weigh heavily on the country’s future and it will weigh even more heavily if they and their followers cannot establish any ongoing institutional presence.

    Going forward the question is which coalition—particularly the revolutionary Islamic one or the stability one—will be victorious in the presidential race.  Both have significant support among the Egyptian population but neither has sufficient support to win alone.  The votes of the third (I prefer not to think of it as centrist or moderate, two words that have bedeviled and confused discussions of Egyptian politics for more than a decade) coalition will decide the outcome.  Supporters of Sabbahy and Abu al-Futouh comprise nearly 40% of Egypt’s voters in the first round (or about 16% of all voters since 60% of Egypt’s voters did not come to the polls.  We know very little about who they are or where they are physically other than at the almost useless level of the governorate.

    The result is sufficiently surprising that many people suspect fraud but no one can quite say how it occurred.  Claims of fraud and the occasional mention that turnout was much lighter than in the parliamentary rounds masks one of the most important features of the first presidential round:  the collapse of the MB/FJP vote due both to abstentions and shifts.

    One of the surprising and so far unasked questions in the election is what happened to the significant number of MB and Salafi (primarily Nour) voters who cast ballots in the parliamentary elections but were AWOL last week.  Clearly millions of supporters of the MB in local elections did not cast votes for the presidency.  The Freedom and Justice party, headed by Morsy, collected more than 10 million votes (37.5%) in the parliamentary elections but Morsy himself won about 5.5 million (25 %).  Some 7.5 million Egyptians (28%) voted for the Salafi Nour party in the fall, but even if you make the absurd assumption that all of Abu al-Futouh’s vote came from them why did he get only 4 million votes (18 %)?  Clearly some of the MB and Salafi voters (who are of course not themselves members of the MB or necessarily Salafis) voted for Sabbahi or Moussa but many must have not cast ballots.  Had Morsy received the same votes that went to the FJP (which he heads) and half the votes cast for the Nour party, he would nearly have won the presidency on the first round.  He would have won nearly 13 million votes out of 29 million (45 %) cast instead of 5.5 million out of 22 million.  There was significant shock about the 586,000 votes (56 % of the those) cast for General Shafiq in the province of Minoufia, but Minoufia looks like an example of something else entirely.  Nearly 1.2 million voters there went to the polls for the FJP alone in the two proportional list constituencies that made up the province for the parliamentary elections. This is more than the total number of votes cast in the province's presidential election.  Morsy got about 200,000 votes; so if half the remaining million who voted FJP in the winter had gone back to the polls for the party’s leader in the spring he would have handily defeated Shafiq. 

Not quite as puzzling but far from obvious is where exactly Shafiq’s and Moussa’s 7.5 million votes (35 %) came from.   The vote for former NDP parties in the parliament election was just under 2 million (about 7 %).  If you make the assumption that the combined five million parliamentary New Wafd and Egyptian Bloc (18 %)  voters went for either Moussa or Shafiq then you’re in the ballpark.  This is in essence the claim that many supporters and members of the MB and the Salafi movements make:  the electoral base of these parties was Christian and those voters cast their presidential ballots for Shafiq.  Plausible as it may appear this assumption is not realistic.

    The claim that Shafiq’s victory was due to Christians is not borne out by the numbers.  As political commentators  and activists have pointed out, Shafiq’s vote came primarily from overwhelmingly Muslim governorates such as Minufiya where he won nearly 600,000 votes (about 11% of his total) and Sharqiya where he won more than 625,000 votes (about 12 %).   News accounts also suggest that in wide sections of the Delta voters turned on the MB, but again the crucial issue here is the absent vote for the FJP rather than the vote for Shafiq.  Had Shafiq won 5.5 million votes out of nearly 30 million (about 19%) his second-place showing would be less remarkable.

    It is nevertheless certain that few if any Christians voted for (or will vote for) Morsy.  Because Morsy has been reported as saying Christians who voted for Shafiq are not really Egyptians the claim that they are the base of the old regimes attempt to regain power is troubling for many reasons.  It is incendiary and suggests that the MB/FJP will use sectarian language to motivate supporters to the polls as they did during the March 2011 referendum and the parliamentary votes.  It also reveals the profound difficulty the MB and the Islamist trend more generally have with understanding why Christians and many Muslims as well distrust them.  That the Christians, as a minority facing discrimination and prejudice, might have their own legitimate interests in a truly plural and secular (in the American not the French meaning of the term) polity is clearly foreign to the MB.  It is this unwillingness to recognize the limits on its power as a majority that makes so many Egyptians—Christian and Muslims—fearful of the MB. 

    The electoral campaign is important because it will bring to the executive office a candidate committed to the elimination of the losing side from public life (though not necessarily to their physical liquidation).  The campaign also looks to be important because it will, almost necessarily, be a campaign that exacerbates the country’s already deep divisions over the revolution, its meaning, and the long-term value of the changes it has already wrought. 

    What applies to the MB applies as well to Shafiq who is campaigning on a promise to end, if not reverse, the revolutionary events of the last year.  Both candidates appear unable to recognize that the Egyptian public is profoundly divided.  The revolutionary solution to wipe out the counter-revolution (or feloul) broadly defined and the counter-revolutionary solution to eliminate the revolution broadly defined will thwart any possibility of creating a democratic state in a plural society.  It appears, moreover, that at least a third of the country understands this all too well and voted accordingly.  Continued calls, especially by the losing candidates in the presidential race, for a presidential council are a recognition of this reality.  Unfortunately this proposal to solve deep political divisions through an administrative improvisation, are too late, too little, and unrealistic.  So, too, are attempts to resolve the dilemma through demands for guarantees from the two candidates and their respective supporters.  The renewal of demonstrations in the public squares of Egypt as I write this, however, suggests that the Egyptian people have not yet said their last word to those political elites who refuse to recognize that a return to authoritarianism, whether of the minority or a presumed electoral majority, is no longer a solution.

Promise and Promises in the Presidential Election

            After weeks of trial balloons, alarums, and even excursions, the Muslim Brothers finally decided to nominate Joseph for the presidency of Egypt.   Well not exactly.  They’ve actually decided to nominate one of their most important leaders, Khairat Shater, for the presidency. Freshly printed posters identify Shater, imprisoned by the Mubarak regime, with the Biblical (and Quranic) Joseph who emerged from prison to govern Egypt.

            The decision to nominate Shater is widely described, especially outside Egypt, as a surprise although it has already been the subject of weeks if not months of intense speculation. 

One strong reason for not nominating Shater was that the Muslim Brothers have asserted continuously during the past year that they would not nominate a candidate for the presidency.  Shater was quoted a year ago as saying the MB would not support an MB candidate even if it was himself.    So the MB have, not for the first time, broken a promise about the elections.  And the reason they gave for expelling former leader Abdel Munim Abu al-Futouh was his insistence on running for the presidency despite that decision.  If the Brotherhood has broken promises (running for only 25% of the seats in parliament, for example) they are not alone.  The Supreme Council of the Armed Forces once promised a six month transition but it’s also become clear in the past few months that the Brotherhood, and their political party (Freedom and Justice), have quickly acquired the knack of all large parties in democracies of denying what they’re going to do until the moment they do it.

Some analysts have suggested that the MB is squeezed between the Hazem Salah Abu Ismail, variously described as the Salafi candidate, an ultra-hardline Islamist, or a populist, and the liberal Abu al-Futouh.  Much of the talk in Cairo before Shater’s nomination, however, was that he would draw at least the support of the Salafi religious and partisan leadership to his side.  This already is underway as some leaders of the Salafi Nour party, which has consistently declined to back Abu Ismail or any other candidate until the nomination period ends, have announced their support for Shater.  

Shater is part of a group of leaders, including Supreme Guide Mohammad Badie, Saad Katatny and Muhammad Morsi, who dominated the leadership after the former Supreme Guide stepped down in 2009.  With the departure of Abu al-Futouh and several other leaders associated with the liberal wing of the MB they have increased their control over the organization further in the last year.  Yet, if press reports are correct, they have not yet been able to bring the entire organization under their influence:  the vote to nominate Shater had to be postponed for a week and even then he was nominated with a majority of 56 votes to 52 in the organization’s Shoura Council.  There are also reports that a large majority of the members of parliament who nominally represent the Freedom and Justice party (rather than the MB) also opposed his nomination.

That the Brotherhood, in theory not a political organization, decided to take the decision to nominate Shater (who held no official position in the party) rather than having the FJP nominate him is worth noting.  It suggests an emergent gap between the MB leadership and the FJP both as parliamentary faction and as an electoral organization.  There are, as I will discuss below, reasons to believe that the MB leadership is having increasing difficulty controlling its own base as well as its parliamentary delegation. 

Accounts of why the MB (rather than its political wing, the FJP) decided to nominate Shater propose several possibilities whose contradictory nature suggests how little the world outside knows of the inner workings of the MB.  It has been suggested both that Shater’s nomination is the result of an agreement with the military council and is a result of the breakdown of any possibility of agreement with it.  Some have suggested that the MB leadership fear being displaced as the leaders of the Islamic trend in Egypt if either Abu al-Futouh or the Salafi candidate Hazem Salah Abu Ismail win.  Yet another possibility posed by Egyptian scholar Ashraf al-Sherif is that the decision arose from Shater’s visceral dislike of Abu al-Futouh who may have had significant support among the losing 52 members of the Shoura Council.

I make no claim to know much about the internal (or even the external) workings of the MB.  Over the past year, however, various accounts of how they have come to make decisions that violate previous promises, coupled with what little we know about prominent leaders who have left, and the recent uproar over the presidential election are suggestive of a much more complex organization than appears in many popular accounts circulating in the US which frequently describe either an extraordinarily disciplined cadre organization dedicated to violently imposing Islamic law on Egypt or a group of democratic moderates barely distinguishable from the American median voter.  There is little doubt that the present leadership group (which may no longer include Shater who has formally resigned) is strongly attracted to power, that they are socially quite conservative and that they largely understand democracy to mean the unrestricted rule by the majority, at least as long as they constitute that majority.  There is, at present, no reason to believe that their preferences would be for an economic program much different than what dominated the past decade.  Shater is an astute businessman who has become quite wealthy. 

Shater himself has said that instituting Islamic sharia is the number one goal of his movement and presumably of his presidency.  What this means in practice, apart from significantly restricting a wide variety of relatively recently enacted women’s rights, is unclear.  Given the general stance of the current leadership it does not mean much good from a progressive point of view but just how broadly and severely it will impact Egyptian civil and penal law as well as social norms is uncertain.  About a month ago members of the Nour party proposed writing a law to transform the Quranic penalty for hirabah into law.  In the Quran the term means waging war on God or Muhammad.  In the Islamic Republic of Iran the term now covers a wide variety of vaguely defined offenses against the state and the Nour parliamentarians appear to have been thinking of a similarly broad statue that would cover political and economic crimes that affect society at large.  Whether it would be possible to write the text of a law that would be acceptable to the Egyptian judiciary is unclear and no working document has emerged from the Ministry of Justice nor is it clear whether most Egyptians would be willing to support a law whose penalties included the amputation of opposite limbs or crucifixion.  Egyptian constitutions have traditionally prohibited exile as a punishment (although the present Constitutional declaration does not contain this prohibition) which is another possibility mentioned in the Quran.  In fact most would probably be appalled.   Egyptian law has a significant number of crimes for which death is a penalty (armed robbery, murder, and rape to name but a few) and it has some laws criminalizing vaguely defined behavior (“ill-gotten gains” for example) but the two are not usually linked and there is historically well-grounded support for the idea of the rule of law that would resist the imposition of such laws whether under the color of Islam or not.

Shater and his political allies might be better thought of as devotees of state that will be both more punitive and more active whether Islamic or not. Historically the MB, like the Communist parties (and unlike the other European mass parties) have not formally allowed factions, but this does not mean that the MB had no factions.  Even in the 1950s there were clearly identifiable groups within the organization and there are reasons to believe that factionalization intensified with the generation that entered in the 1980s even if it remained formally unspoken.  Although it has been common to speak of the disciplined hierarchy of the MB and of both generational and political change within the organization these are usually presented as transformations of a relatively homogenous and disciplined organization.  It may be more useful to think of the MB as a kind of coalition—that is a rather broad array of people of social and political outlooks—which now has access to considerable possibilities of patronage and government decision-making.  Paradoxically it may make the present leadership stronger in relationship to other factions—which are still illegitimate as such—while also making more amenable to influence from the base.  Thus the decision to jettison the pledge to contest only 25% of the seats in parliament and run everywhere benefited the current leadership and the organization.  But it was widely reported (at least unofficially) at the time also to have been the result of pressure from the base where many members believed they could successfully run and resisted leadership attempts to limit their access to power.  So, too, the decision to dominate the constitutional committee has been described to me as having been the result of the desire of FJP and Nour parliamentarians to serve on the committee.  Seen in this light, the MB leadership may originally have planned to play a longer and more involved political game but are now having difficulty controlling their own members.  Lastly it is clear that the decision not to run a presidential candidate has evoked significant opposition within the organization for the entire past year.  Some of this came from Abu al-Futouh supporters; some from those who worried that Abu Ismail would cut into their own base; and some, obviously, from Shater and his faction.  Whether the MB splits, which is an ever-green hope in some circles, is less of an issue that its on-going transformation into a regular political party in which various groups vie for power in increasingly public and organizationally debilitating ways.

The Muslim Brothers are now on the verge of dominating the Egyptian political system nearly as completely as did the National Democratic party.  They have close to a majority in the Parliament and on a variety of issues have their pick of allies; they dominate the committee presently writing the constitution. Their same man, Saad Katatny, happens to be both speaker of the Assembly and chair of the constitutional committee. Should they also gain the presidency they will control both the legislative and executive branches and they will be in a position to determine, through the writing of the constitution, the distribution of power between them.    In early 2011 they may have wanted to re-assure Egyptians and foreigners alike that they did not intend to dominate the political system.  The parliamentary elections and the response of the electorate to the MB dominance of the constitutional committee suggests they no longer need to allay these fears.

In the vein of such speculation another possibility also arises:  the MB leadership realize (perhaps more than any other forces) that their dominance based on popularity alone may be a wasting asset.   The MB claimed support from 77% of the voters in the March 2011 referendum.  In recent parliamentary elections the Islamic trend overall received 70% of the vote but the FJP (the political arm of the MB) received less than 50% although their coalition came close to that mark.   Contesting the presidency five (or more) years in the future after former Mubarak foreign minister Amr Moussa (the front-runner) or any of the other competitors may seem much less desirable now than it did a year ago.  I leave to connoisseurs of choice theoretic approaches whether it is more “rational” for the MB to wait to capture the presidency in the future, but the given the uncertainty surrounding this presidential election (let alone those five or ten years in the future) patient forbearance may look like a fool’s game.

There are some intriguing possibilities ahead that make the Egyptian presidential campaign resemble the American collegiate basketball playoffs in the variety of possible opponents.  There are certainly risks involved.  Shater as nominee would have likely picked up much of the Salafi vote that Abu Ismail hoped for.  The stunning decision by the Electoral Commission on April 4 to deny Abu Ismail’s candidacy leaves Shater more clearly the preferred nominee of those voters.  Abu Ismail’s candidacy was negated on the technicality that his mother appears to have had an American passport.  Under the constitution amendments approved in the March 2011 referendum and incorporated into the Military Council’s Constitutional Declaration no one whose parents have accepted foreign citizenship may serve as Egypt’s president.  And the decision of the Commission is, by the same Declaration, without appeal. 

There remains some question as to whether Shater’s candidacy will survive a challenge.  Shater’s parents and grandparents are, as far as anyone knows, Egyptian born but he has been convicted of a felony in a sufficiently recent period that his political rights (including the right to stand for public office) may be in abeyance. No doubt this will be brought before the Electoral Commission which could decide that his candidacy, like that of Abu Ismail, is invalid. It is not clear whether the Military Council can or would pardon him and restore his rights. 

More intriguing is what happens if Shater wins.  Although Shater has resigned from the MB (and thus also as deputy supreme guide) he, unlike Abu Al-Futouh, remains closely identified with it.  After all it was the MB that nominated him.  If he wins, then, what is the relationship between the Supreme Guide of the MB, Muhammad Badi’, and his former Deputy, the President of Egypt?  Is the president still bound by, or will he feel himself bound by, the rule of obedience which characterizes the relationship of members to the leadership in the MB?  Or will he, as president, now be in a position to demand compliance from his former superior?  Either way the MB will have to adjust to an uncomfortable new reality in which it either is quite literally the ruling party or the transmission belt for government.

Shater’s entry into the presidential race may also affect the writing of the constitution.  The committee has six months to conclude its task.  I will address some of the substantial issues in another post but writing the constitution itself is less of a problem than deciding the allocation of power that it enacts.  Until last week it had been widely assumed that the MB continued to prefer a parliamentary system with a weak president as they had long claimed.  There were some doubts that this was the case and the MB have routinely not carried out their routinely frequent threats to withdraw confidence from the Ganzoury government appointed by the Army Council.   They may now wish to wait until the outcome of the election to see what division of powers they wish to enshrine and how much control over the Egyptian government they parliamentary delegation wishes to assert.

Two final points are worth pondering.  Joseph had seven good years to prepare for seven lean; Khairat Shater will be coming into power with the reserves of the last decade of intense (but unevenly distributed) economic growth having been dissipated.  He may be in for a more difficult time.  The other point is drawn from the historical sociology of revolution and refers us back to the question of how to conceptualize the kaleidoscopic Egyptian reality of the past year in which the pace of change continues to confuse and amaze.  For the last century successive periods of revolutionary upheaval and political change have brought new governments to power and cemented the idea of republican democracy as the appropriate mechanism of rule.  What they have never brought forward, despite many claims to the contrary by rulers and external observers alike, is a party sufficiently disciplined and dedicated to the pursuit of power to make an elected parliament function as a system of rule.  The Wafd was a popular mass party with no significant local organizational participation.  The military rulers after 1952 tried successive experiments with the Liberation Rally and the Arab Socialist Union before finally settling on the National Democracy party as a mechanism to occupy political space.  The MB and their political party, the FJP, may finally (if perhaps only briefly) manage to create a system of electoral institutions that allow a party not only to participate in ruling the country but to govern it.   Unfortunately such an experiment will not be, to paraphrase Afaf Lutfi al-Sayyid’s famous book, liberal.  But it will be one on which Alexis de Tocqueville will be smiling from whatever heaven shelters those who cast a cold eye on revolutions.

Bam! The Army Takes It Up a Notch

Violence overtly directed against political protesters in Cairo reached a crescendo in mid-December 2011, and then abated.  Just as US policy makers were breathing a sigh of relief that their bet on a democratic Egypt had paid off, the generals pushed things up a notch.  Or three.  Just the bits that made the international press are hair-raisingly disturbing:  at least 74 deaths in one of the deadliest soccer disasters in history, raids on the offices of half a dozen organizations whose aim was supporting democratic transition, and the indictment of 43 people—Egyptians and others—on charges of using foreign funds to undermine the state and partition the country. 

Those who believe that Egypt’s military is under the control of the United States may want to take another look.  The ruling military council has challenged President Barack Obama and the Congress who are most likely to take it sitting down.  Perhaps even more important they have moved significantly to restrict the activities of Egyptian activists concerned with human rights, the rule of law, and civil society which have been the slogans beloved of US policy makers even when they did little to forward them.

Field Marshal Tantawi’s initial reaction—seconded by regime supporters—to the soccer disaster was that these events could have happened anywhere.  He saw it as a brawl between fans (Ultras) of the visiting Ahly team and the hometown Masri team in the industrial city of Port Said on February 2.  It was, in short, the kind of thing you should expect when the soccer hooligans who fought the police in downtown Cairo in late November and early December took to the road.  Left unspoken but certainly recognized in Washington and Jerusalem was that the Ultras were intimately involved in the assault on the Israeli embassy in September.  Egypt has had its share of soccer brawls but this, it must be repeated, was not simply a case of rowdy fans tearing up the town (which indeed has indeed happened in earlier matches between these teams); it had one of the highest death tolls of any soccer match disaster ever.  It was the kind of disaster more generally associated with collapsing stands and massive panic than with fights between rivals. That’s because, as long as the police play their expected role, it’s very difficult (although not wholly impossible) to generate large casualties through individual violence.

The violence may have begun with rivalry and taunting or it may have begun with the activities of hired thugs.  What seems to have made it really deadly were two contributing factors.  First, the police largely stood aside from beginning to end.  Evidently the customary pre-game searches weren’t undertaken.  And once the violence erupted the television footage of the events shows the police standing aside.  Indeed as members of the audience erupted on to the field and chased down the Ahly players you can see them running past a double phalanx of helmeted and shield bearing police in the direction of the dressing rooms.  And as the crowd panicked they ran into locked gates that prevented their exit and, of course, ensured that dozens of people would die in the crush.  As of now these are not merely press reports but have found their way into a parliamentary report and may rise to the level of criminal negligence.

The soccer disaster is now called a massacre.  It has been widely interpreted, by foreign observers, by many Egyptians and certainly by the Ultras, as a deliberate attempt to get revenge for their opposition to the regime on the streets.  It is also the kind of event for which political leaders would, in a democracy, be expected to take responsibility whether in the form of resignations or public apologies but Egypt’s present governors are no more inclined to either of those paths than previous ones.

Besides increased conflict with domestic opponents, the military council has also increased tension with its foreign partners, notably the US by raiding the offices of half a dozen organizations committed to building civil society and indicting 43 people.  Nineteen of those indicted are American of whom 6 are currently in Egypt and have been refused permission to leave.  One of the six, Sam LaHood, is the son of the US Secretary of Transportation.  The organizations include Freedom House as well as two foundations funded by the US Congress through the State Department (the International Republican Institute and the National Democratic Institute) to support civil society and democratic transition around the world.  They have trained activists around the world but they have also been involved in funding research into a very sensitive area: voter fraud.  

The American press and punditocracy has been set back on its heels by the Egyptian army’s assault on the American foundations.  How, after all, can a client state that has received billions of dollars from the US since the days of Jimmy Carter turn on its patron? Leaving aside the foolish arrogance of the question, it is worth considering that the Egyptian general staff, like the rest of the world, follows the American media.  They are aware that Barack Obama is not anxious, especially in the period before an election, to engage in unnecessary conflict.  Even if they did not follow the debt limit debate, they have an ambassador who did.  They were also aware that the Republicans in Congress were already considering using aid as a means to pressure the new government especially in the wake of the assault on the Israeli embassy.  At some point in their military training they were undoubtedly introduced to the idea that the best defense is an offense and most of them were on active duty as young officers in 1967.  It is therefore not so surprising that they struck at the US before it could strike at them.  Neither the Congressional Republicans nor the Democratic president have, especially in the present regional environment, a desire to complicate relations with Egypt.  By a neat act of political jujitsu, moreover, the generals have made it clear that the Camp David treaty and the cold peace with Israel now work wholly to their advantage.  Leaders of the Muslim Brothers have suggested that if US aid to Egypt ends so will the treaty.  Whether that would really happen is not something either President Obama or Prime Minister Netanyahu, who has been notably quiet about events in Egypt ever since the attack on his country’s embassy in September, want to discover.  After some initial bluster the Republicans have said little and even the Washington Institute for Near East Policy has been remarkably quiet about a military regime that in other circumstances they might describe as holding half a dozen American hostages.

Yezid Sayegh has argued that Egypt can do without the aid.  It is true Egypt today is also a very different country than the one that first received American aid.  In 1980, American aid of $1.5-2 billion loomed very large in an Egyptian economy whose GDP was about $22 billion.  In today’s Egypt where the GDP was in 2010 almost $250 billion, that aid is miniscule.  It is also negligible for the generals if they indeed, as now seems to be widely believed, control 40% of the economy.  In 1980, moreover, Egypt was extremely short of hard currency; today thanks in part to the widely despised neoliberal reforms the Egyptian pound is convertible. 

One of the puzzling aspects of the way the military authorities in Cairo have chosen to deploy coercion in months since the ouster of former President Hosni Mubarak is how much they have used against marginal groups of protesters and how little they have used against protests that posed a significant threat to authority, public safety and the economy.  As many Egyptians have noted and as I will deal with in the next entry, the government is facing a serious challenge to both to its authority and to the coherence of its institutions from Alexandria to Asyut.  Many, but not all, of these challenges arise from assaults on Christians.  How seriously army commanders take the substance of these assaults is one question but they have clearly worked to undermine and entangle state officials in a web of anti-constitutional activity.

The arrests and closures of the NGOs have a clear target inside Egypt as well as outside it.  There is no reason to diminish the importance of persistent attempts by the generals to deploy xenophobia.  They have spoken of hidden hands and threats to divide the country since March 2011.  They have wrapped themselves in the mantle of sovereignty since the early days of their rule and when they refused to allow the official participation of foreign observers in the election.  What is new here is that the assault on foreign funding has a direct bearing on Egyptians and not simply those who worked for the NGOs.

In Egypt, as in Europe but unlike the US, judges both investigate cases and provide the initial trial of facts.  The press conference at which the investigating judges explained the indictments had a certain dramatic flair.  They reiterated that they were simply acting in accordance with existing Egyptian law and dealing with violations.  Cloaking themselves in the mantle of law and order, they implicitly placed the US (and Germany) in the position of either accepting the principle and the indictments or rejecting them and thus undermining the principles they have claimed to support.  It was a stance that American policy makers will find difficult to reject unless they wish to mount a wholesale attack on the fairness of the judicial system in the post-revolutionary era.  And since these trials will be in the civil courts, not the military courts, it is hard to see how US officials can reasonably oppose them in the wake of the revolution.

First, as many Egyptians have noted the military is more concerned with foreign funds that flow to secular human rights organizations than that flow into the coffers of the Salafis and Muslim Brothers.   I have no all-embracing answer but there are some possibilities that have not yet been explored elsewhere.

It is not well known that the NDI and IRI, in addition to funding workshops on political participation (which even members of the Salafi Nour party attended), had also begun to experiment in supporting research on voting fraud.  There have been some allegations of fraud in the recent elections (for example by the blogger Sandmonkey) although most accounts describe the election process as relatively fair and free of overt intervention.  Electoral fraud as well as outright repression have, however, provoked widespread anger in the last several decades and were clearly an important ingredient in popular unrest in the wake of an obviously fraudulent parliamentary election in 2010.  This is unlikely to be an area of research that Egypt’s political leaders are going to wish to see pursued.

Even more peculiar than the indictments of the American foundations, is the indictment of Andreas Jacobs, director of the Konrad Adenauer Foundation.  The Adenauer Foundation, as its name might imply, is a German organization of moderate aims.  Unlike the Friedrich Ebert Foundation, more closely identified with social democracy, the Adenauer Foundation is a child of German Christian Democracy and espouses scientific policy analysis.  Jacobs is a political scientist who has headed the Foundation’s Cairo office since 2007 and was planning on leaving soon.  He wrote, for example, a brief article for the German publication Qantara in December 2011 that suggested the revolution had not brought about significant structural change but by then such analyses were commonplace. 

The indictment of Jacobs is, however, a threat to Egyptians who participated in conferences he agreed to provide funding for.  Because he was seriously interested in the country’s intellectual life this would cut a wide swathe among intellectuals, writers, and public servants.  Whether they would be legally susceptible is less important in the current atmosphere than that they would be politically on the defensive.

            These events are troubling enough on their own but coupled with what amounts to the emergence of a social movement that thrives on attacking Christians and substituting “popular” justice for the court system, they are even more so.              

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