- By Michael Wahid HannaMichael Wahid Hanna is a senior fellow at the Century Foundation. His article on the use of public order in Egyptian law will appear in the forthcoming issue of The Review of Faith & International Affairs.
The Egyptian uprising of 2011 and its ill-fated transition has been marked by missed opportunities and squandered potential. In recollecting the recent past, the wistful narrative put forward by many participants in the demonstrations that toppled the regime of Hosni Mubarak is often tinged with regret at the serial and avoidable mistakes that blunted the momentum for thoroughgoing reform and change. Yet, in the wake of President Mohamed Morsi’s unilateral constitutional decree, which concentrates nearly all governmental powers and authorities in the office of the executive, it appears that the lessons of that recent past have somehow failed to penetrate the collective consciousness of the political class.
In many ways, Morsi’s unilateral power grab parallels the original sin in Egypt’s chaotic and turbulent transition: the self-declared usurpation of total political authority by the Supreme Council of the Armed Forces (SCAF) following the March 2011 referendum. Now as then, most of Egypt’s political leaders have been lulled into quiescence by the revolutionary aura that now frames President Morsi following his stunning dismissal of the country’s most senior military leaders and his assertion of civilian supremacy. Now as then, citizens and leaders alike are being asked to put their trust in unchecked political power. Now as then, positive actions in one arena are being used to justify self-dealing and rule by fiat.
Eighteen months after an uprising against Egypt’s domineering and all-powerful authoritarian leader, the transition to a democratic political order has produced a president with executive and legislative power and extensive oversight authority over the drafting of the country’s constitution. On paper, the president has dictatorial power.
The lack of concern or outrage at this state of affairs is particularly shocking in light of the trajectory of Egypt’s post-Mubarak transition and the many similarities of Egypt’s current circumstance with the ill-fated monopolization of political power by the SCAF in the wake of the fall of the Mubarak regime. Like now, the outcry following this power grab was muted: the Egyptian military was still deemed to be acting on the basis of revolutionary legitimacy in the wake of the toppling of the Mubarak regime and its refusal to turn its arms on the protesting masses. Citizens and political leaders alike were quite willing to grant the country’s new rulers the benefit of the doubt. While other alternatives were eschewed, the transitional political arrangements were justified as necessary, understandable, and temporary.
The SCAF’s far-reaching authority was announced by Major General Mamdouh Shahin, the legal architect of the SCAF, on March 30, 2011, after an inexplicable delay following a March 19 referendum. Appearing at a press conference, he announced a constitutional declaration to govern Egypt’s transition. The declaration reaffirmed the popular rejection of a constitution-first model for transition, but the expansive document was far different than the limited set of amendments that was put up for a nationwide vote. As opposed to deriving its legitimacy from a popular mandate, the transition’s governing framework was primarily a function of SCAF fiat.
Despite a lack of any real popular mandate based on the referendum, the declaration established SCAF’s total control of the transition process and effectively halted any near-term moves for substantial reform.
It was made possible by the acquiescence of the political class, including most notably, the country’s most organized and potent political force, the Muslim Brotherhood. For the Brothers, the SCAF’s transition plans were the vehicle by which elections would be held expeditiously, maximizing their outsized organizational advantages. The price of this bargain was the acceptance of the extralegal maneuvers that sanctified the SCAF’s domination of the political process with legal and constitutional legitimacy.
Similarly, President Morsi has parlayed his own revolutionary actions, coupled with his democratic legitimacy as a result of his electoral victory, into near-total political power, with very few remaining sources of balance within the legal and political order. As with the SCAF, the president and his supporters are now defending his actions as expedient, temporary, and grounded in revolutionary legitimacy.
As a matter of democratic principle, the concentration of political power represented by President Morsi’s constitutional decree is wholly objectionable. These actions are even more objectionable coming as they do in the midst of a transition that will define the parameters and fundamentals of a new political and constitutional order. As a result of the self-granted authority to appoint a new constituent assembly if the current body fails to produce a constitutional draft for ratification, President Morsi will have vast coercive authority to influence the drafting of the constitution. In light of the decisive role of his Muslim Brotherhood colleagues and other Islamist allies on the assembly, the work of the current assembly could be intentionally undermined in the hopes of a more compliant body selected by the president. While political constraints might curtail the practicability of this threat, it nonetheless might influence the contours of discourse and debate within the assembly.
Furthermore, the domineering approach of the Muslim Brotherhood to the transitional period and their exercise of political power should give pause to those beguiled by assurances of inclusion and broad-based political consensus. The track record of the Brothers during this period is characterized by promises broken and silence in the face of SCAF abuses, such as military trials for civilians and the application of the emergency law for most of the SCAF’s tenure. The Brothers, in tandem with the SCAF, also sought to tarnish those intent on continuing the protest movement through mass mobilization and public actions. Their tenure in parliament was marked by unilateralism, lack of consultation, and consistent efforts to dominate all facets of the political process. While giving rhetorical credence to notions of inclusivity and consensus, their attempts to dictate the constitutional-drafting process belied any such assurances. With institutional aggrandizement as their lodestar, the Brothers managed to alienate nearly the entire Egyptian political class. With this recent history in mind, it is unreasonable to accord them unlimited faith and trust — faith and trust that would be misplaced if accorded to the most enlightened of philosopher kings.
It is incumbent to judge President Morsi’s actions separately. His sacking of former Defense Minister Field Marshal Mohamed Hussein Tantawi and former Chief of Staff of the Armed Forces Lt. General Sami Anan were a necessary corrective to the intrusion of the military on the prerogatives of civilian governance and an important check on the expanding political ambitions of the Egyptian military. During the course of transition, the ambitions of the military leadership expanded beyond the core elements of a safe exit to include a constitutionally enshrined custodial role that would have placed the military establishment beyond scrutiny and enabled it to intervene in the political process. While a safe exit is still inevitable and the military will continue to enjoy extensive privileges and exercise considerable political power, the maximalist designs of the military leadership have now been foreclosed absent a major intervention by the military, such as a coup. These are salutary and necessary developments for the establishment of a democratic, civilian-led political order.
But these surprising achievements should not provide cover for a new iteration of the power grabs that have distorted modern Egyptian political life. Even overlooking the extralegal nature of President Morsi’s actions as the only available means to take on the extralegal political and legal framework erected by the SCAF, there is simply no excuse for constructing a parallel system of unchecked authority. When operating by fiat, the existing boundaries of legal frameworks are no longer binding. As such, a constitutional decree could embed checks and balances on executive authority. This is complicated by the absence of a parliament after it was dissolved by the SCAF in accordance with a judgment by the Supreme Constitutional Court (SCC), but there are imaginative alternatives if there is a will and interest in political balance. One such approach would be to vest temporary legislative authority in the currently-functioning constituent assembly. Another alternative would be to construct a broad-based council composed of diverse representatives of the political class whose ratification of legislation would be necessary for promulgation. The president could also issue a transitional decree enshrining individual rights to blunt concerns that this government will now consolidate power by silencing critics and muzzling expression. None of these options are ideal, but they are a qualitative improvement over dictatorial power.
As it stands, the SCC is the only institutional check that exists within the current transitional arrangements. The ability of the SCC to act as an effective check is hampered by the court’s politicization and the stark realities of political power. With the military seemingly acquiescent and, perhaps, even actively involved in the moves against their senior leadership, any court interventions might produce an unenforceable judgment that would further undermine its credibility and open it up to reprisals in the form of a major purge. Such actions might expose the court further and end its ability to function as an independent body.
It would seem to be a perverse outcome if the hopes and aspirations produced by Egypt’s uprising disposed of one dictatorial president only to replace him with another. While President Morsi has not yet abused his expansive authorities, he should not be given the opportunity. The Egyptian political class should rally in defense of democratic principles and exert concerted pressure to amend the unilaterally-declared transitional framework. Short of such efforts, it is likely that a new narrative of regret and missed opportunities will come to characterize the current phase of Egypt’s transition.
Michael Wahid Hanna is a fellow at The Century Foundation.