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In periodic visits to Egypt since the revolution, I have been startled by the deteriorating public discourse and the manner in which various ideological camps ensconce themselves in bubbles, circulating the most lurid rumors about their opponents and treating them as fact.
Until recently, the main effects of this unfortunate tendency were shrill rhetoric and bad manners. But it has brought the political system to the brink of a serious crisis.
While possibilities for compromise remain, recent moves have left few lines of retreat. This is the case with the president’s 22 November constitutional declaration — one that not only pits Egypt’s political forces against each other, but also one that has driven a deep divide among its state institutions.
The presidency and the judiciary are locked in confrontation, each holding a cartoonish image of its adversary.
The president was reacting to real problems when he immunized his decisions and the Constituent Assembly from judicial oversight. The Brotherhood had been heavy-handed in picking the Constituent Assembly, but it did so fully within the rules drafted last year.
And it is not clear that the opposition would have been satisfied with any compromise over the composition of the body or its work. The Brotherhood’s complaint — that many critics were averse to allowing election results to have any impact on the document or its authors — is firmly grounded.
The judiciary was an obvious place for the opposition to resort, since earlier court decisions had dissolved Parliament and the first Constituent Assembly. The matter is now before the Supreme Constitutional Court, and the part some justices played in the Presidential Elections Commission, advising the Supreme Council of the Armed Forces, and participating in public debates has left a strong residue of mistrust in Brotherhood circles.
Despite his suspicions, the president would likely not see himself as an adversary of judicial independence in principle — after all, prominent members of the “independence” trend within the judiciary now occupy the vice presidency, the Justice Ministry and the chairmanship of the Constituent Assembly. But his language defending his declaration was intemperate, and many Freedom and Justice Party leaders have failed to hold their tongues in their description of the SCC in particular.
Morsy’s defense of his moves as designed to support democracy unfortunately recall the remark attributed to an American soldier during the Vietnam War: “It became necessary to destroy the town to save it.”
The president was explicit in why he felt the need for the November declaration: He feared the SCC was about to turn back the revolution by disbanding the Constituent Assembly, the Shura Council, and perhaps even the president’s August constitutional declaration that had removed the military’s stranglehold over the country’s political system.
Is the SCC a body filled with SCAF sycophants and handpicked Hosni Mubarak stooges?
All members of the court were indeed formally presidential appointments. But most were nominated by the justices themselves; their appointment by Mubarak was a formality.
The former chief justice, Farouk Sultan, was indeed a direct Mubarak pick, but he had only one vote and retired over the summer. He was replaced by a president picked by the court’s own justices.
I don’t wish to make it sound as if the old regime’s habits left the court completely unaffected. There were subtle ways that the bold court of Chief Justice Awad al-Morr’s days, in the 1990s, was gradually tamed by the regime.
But the court’s sitting justices are actually a more diverse lot than is often publicly apparent. Some justices have played a prominent public role, but most speak only through their judgments, which are issued by the court as a whole, rather than by individual justices, with no dissenting or minority opinions.
That makes it difficult to read their inclinations — and easy for their critics to read nefarious motivations into the SCC’s actions.
And that is what they did with the SCC’s dissolution of Parliament.
The loss of Parliament was politically costly to Egypt. It deepened Islamist suspicions and deprived the country of one of the few remaining structures in which opposing forces had the opportunity to come together and hammer things out.
But critics of that judgment missed two elements when they dismissed it as a power play by the SCAF or old-regime holdovers.
First, the ruling took pains to avoid anchoring itself in the SCAF’s March 2011 Constitutional Declaration. The court recognized that document, but seemed to view it with some distaste.
Second, the style and the substance of the judgment drew heavily on the jurisprudence of the late 1980s and 1990s — the heady days of Morr, when the court served as a refuge for those seeking to have the vague rights and procedural guarantees of the 1971 Constitution taken seriously.
The ruling was not one that toed the SCAF line. But its timing was very likely a matter of self-defense — at least in the justice’s eyes.
It is hard to avoid the impression that the court feels threatened by the Brotherhood’s rise, but that stems less from ideological factors and more from the concern that the court is a likely target for the Brotherhood.
The court moved in hours on this case (after having taken years in previous decisions over Parliament), with the justices fully cognizant that Parliament had been discussing legislation to limit the court’s authority and recast its membership. In a sense, the situation resembled a shootout in which the first person to draw his gun wins.
It may have been the fact that the court drew first in June that led Morsy to hasten to his gun last week. He did not dissolve the court — despite widespread rumors that he intends to — but left it alive, attempting to deprive it only of its jurisdiction in the cases he cares most about.
How will the court respond? I have no idea.
In a series of rulings in October, the court did treat the March 2011 Constitutional Declaration as the governing document in Egypt. That was a significant step it had avoided last June.
The court did not cite any of the subsequent amendments issued by the SCAF or Morsy, but there was no reason to, since those amendments covered areas that were not relevant to the cases in question.
As a result, the court has now gone on record clearly accepting the March 2011 Constitutional Declaration, but it remains silent on any of the subsequent additions, including the two made by Morsy in August and November.
Treating the March 2011 Constitutional Declaration as authoritative — even though it was issued only by military fiat — can be justified by the argument that the SCAF was the effective power in the country. There is precedent here in the Egyptian constitutional tradition for what is sometimes referred to as “revolutionary legitimacy.”
The SCAF seemed to have that power from February 2011. It lost it at some point. Morsy effectively claimed that authority when he issued his August constitutional declaration. And if there is any “effective power” exercising “revolutionary legitimacy,” it is Morsy as president.
But it is not clear that the court will countenance that any such power exists right now. The court does show some inclination to consider the broad political context in its rulings, and the current outpouring of opposition may give it the political space it needs to bring the declaration into question if it is so inclined.
My guess is that there are justices in the court who would not shy away from such a ruling, but also very cautious justices in the court who would see it as a kamikaze move. The court record suggests that it may fight back when it feels itself under attack.
The current political situation is unstable, and the court would need not only political support, but also assistance from another court to get a relevant case in the first place.
And a ruling that directly defied the president’s clear attempt to usher the court out of the process would be confrontational indeed.
It is clear overturning the decree would be legally as well as politically complicated. If the court did try to take on Morsy’s November declaration, it would be hard (but probably not impossible) to do that without also throwing the August declaration into question.
And overturning that would call the SCAF back to power. There are ways out of this outcome, but I mention this simply to point out how even a confrontational SCC will have a very complicated legal path.
How did Egypt find itself in such a polarized situation, one that seems to reward precipitous action, amplify confrontational voices and block compromises? The fault lies not so much in the intentions of the actors, which are often characterized more by short sightedness than bad faith, but in a series of mistakes made in the transition process designed last year.
Critical ambiguities — the precise sequence, the powers of Parliament, the ability of the Constitutional Declaration to be amended, selection criteria for the Constituent Assembly — have been filled by ad hoc decisions made by actors motivated by fear of their adversaries in a polarized context.
But while the crisis is not fully a product of the actors’ intentions, Egyptians will not find a path forward unless their leaders find within themselves an intention to resolve their differences through compromise. The constitutional process is badly broken, but it can still be repaired.
The opposition can find a set of demands that is not predicated on denying Islamists the fruits of electoral victory or bringing the president down. The president can back down on parts of last week’s dictatorial moves.
The basic elements of compromise have not been destroyed — yet.
Nathan J. Brown is a professor of political science and international affairs at George Washington University.
This piece appears in Egypt Independent’s weekly print edition.