- By Mara Revkin<p> Mara Revkin is the editor of EgyptSource, a project of the Atlantic Council's Rafik Hariri Center for the Middle East. Yussef Auf is a sitting judge in the Egyptian judiciary and a 2012 Humphrey Fellow at American University's Washington College of Law. He holds degrees in Law and Islamic Studies from Cairo University, where he is currently pursuing a PhD in Constitutional Law and Political Systems. </p> <p> Yussef Auf is a sitting judge in the Egyptian judiciary and a 2012 Humphrey Fellow at American University's Washington College of Law. He holds degrees in Law and Islamic Studies from Cairo University, where he is currently pursuing a PhD in Constitutional Law and Political Systems. </p>
If Egyptian President Mohamed Morsi is ever in the market for a presidential theme song, he should consider, "U Can’t Touch This." American rapper M.C. Hammer’s infectiously arrogant refrain aptly sums up a stunning power play by the Egyptian president on November 22 — a unilateral constitutional declaration that immunizes his decisions from judicial oversight and preempts legal challenges to an Islamist-dominated constitutional process. In short, the declaration makes Morsi’s decisions legally untouchable. If this were Zimbabwe, we would call it dictatorship. But in Egypt, it’s just business as usual in a dysfunctional democratic transition.
Morsi, who was elected Egypt’s president in June on a platform pledging to purge remnants of the former regime from state institutions, is now taking cues straight from the playbook of his authoritarian predecessor, Hosni Mubarak. The president has attempted to justify the declaration as a necessary intervention to alleviate political gridlock, with the aim of achieving "revolutionary demands and rooting out remnants of the old regime." A senior advisor in the president’s Freedom and Justice Party (the Muslim Brotherhood’s political wing), Gehad El-Haddad, took to his Twitter feed to defend the decision in less tactful terms. "Someone needs to get real," El-Haddad tweeted dismissively to critics who suggested that the president had less radical alternatives at his disposal.
But while Morsi’s paternalistic rationale might have passed muster a year ago, the Egyptian public has long since lost patience with the notion that repressive means are permissible in the pursuit of revolutionary ends. It’s worth recalling that Morsi’s margin of victory in the presidential election was a razor-thin 3.5 percent — hardly the sweeping popular mandate needed to legitimize a power grab of this magnitude. Public backlash to the declaration has been swift and scathing. Prominent political figures have mobilized against Morsi and three of the president’s own advisors have stepped down in protest. Mohamed ElBaradei branded Morsi "the new Pharaoh," as tens of thousands of protesters called for Morsi’s resignation in Cairo and cities across Egypt, at times clashing violently with the president’s supporters. As of November 25, at least 227 injuries had been reported. Dozens of anti-Morsi protesters have been arrested thus far, and hundreds more have been detained on the infamous Mohamed Mahmoud Street, where a demonstration was staged last week commemorating the anniversary of a deadly crackdown on peaceful protesters at the same place last year.
Whether or not the violence continues to escalate depends on if, and how quickly, Morsi is willing to make concessions. A full-blown retraction of the decree might be seen as an unbearable blow to Morsi’s credibility, but he may be persuaded to scale back some of its more problematic provisions. Much also depends on whether protesters are willing to back down from their bottom-line demand — Morsi’s removal — and settle for a more realistic compromise. Lurking in the shadows is Egypt’s military, unceremoniously ousted from power and perhaps eyeing an opportunity for a comeback. ElBaradei warned on November 25, "You cannot exclude that the army will intervene to restore law and order if the situation gets out of hand."
This is not Morsi’s first power grab, but it is certainly his most brazen. On August 12, less than six weeks after his inauguration, the new president took his first step toward eviscerating constitutional limitations on executive power with a decree that jettisoned the Supreme Council of the Armed Forces (SCAF) from the political scene and gave Morsi sweeping legislative powers that arguably exceeded those held by Mubarak. In a bait-and-switch maneuver, Morsi rescinded an existing SCAF declaration designed to curb the powers of the incoming civilian leader and replaced it with one that authorizes the president to legislate in the absence of an elected parliament and intervene in the constitutional process. Adding insult to injury, Morsi strong-armed the ruling generals into early retirement just hours after abrogating martial law.
Even when Egypt had a permanent constitution, Mubarak had no trouble finding and writing new loopholes to justify the abuse of executive power. But in today’s fluid transitional legal environment, where rule-by-decree is the new rule of law, it’s that much easier for the president to overstep the traditional bounds of executive authority, as Morsi did so flagrantly on August 12 and November 22.
In the context of a murky constitutional interregnum that invites unilateral decision-making, it’s not all that surprising that Morsi would try to stabilize a floundering democratic transition by rewriting the rules of the game yet again. But what is remarkable about Morsi’s latest decree is not the powers it gives the president, but those it has taken away from the judiciary. The seven-article constitutional declaration radically recalibrates the balance of power in an already fragile political system by stripping Egypt’s highest courts of their authority to challenge executive decisions. Not only does the declaration bar courts from contesting any presidential decrees passed since Morsi assumed office in June, it also preempts lawsuits seeking the dissolution of the constituent assembly and the upper house of parliament. Legal experts believe that the declaration could provide a basis for reinstating the Islamist-dominated lower house of parliament, which was dissolved by court order on June 15.
The upshot of the decree is absolute immunity for Morsi’s political agenda, including the process of drafting a new constitution. The 100-member constituent assembly, tasked with writing the new charter, was on the verge of imploding for a third time last week, when at least 12 liberal and Christian members resigned their seats over complaints that their recommendations were being ignored by the Islamist-dominated assembly. The walkout — which included such prominent figures as former presidential candidate Amr Moussa — underscored the dubious legitimacy of a constitutional process that has been repeatedly assailed for its underrepresentation of political and religious minorities as well as women. By shielding the constituent assembly from pending legal challenges seeking its dissolution, Morsi’s decree virtually guarantees that the current constituent assembly will survive long enough to complete a draft, however flawed.
In an apparent effort to paper over the declaration’s authoritarian implications and preempt critics, the text is littered with concessions to revolutionaries and non-Islamists. Morsi’s extension of the deadline for drafting a new constitution by two months seems designed to appease liberals, who have accused Islamists of railroading over their concerns in an effort to conclude the messy process as quickly as possible. In another gesture to revolutionaries, the decree reopens the trials of Hosni Mubarak and other members of his regime, in addition to dismissing Egypt’s prosecutor general, a Mubarak-appointee who has been pilloried for his role in the relatively lenient sentencing of the former president — to life in prison — last June.
Ironically, a declaration whose stated intent is the eradication of the former regime and fulfillment of the revolution’s goals, has actually turned the clock back to Mubarak’s era — a time when Egyptian society was held hostage by an executive branch that operated above the law. In seizing dictatorial powers in the name of safeguarding Egypt’s democratic transition, Morsi is starting to look more and more like a reincarnation of his deposed predecessor.
Even the jingoistic rhetoric Morsi has employed to rationalize his power grab reeks of Mubarakisms. "Those who are trying to gnaw the bones of the nation" must be "held accountable," Morsi said on November 23. The tactic of scapegoating unspecified threats to national security is reminiscent of one of Mubarak’s favorite metaphorical devices — the "foreign fingers" he blamed for instigating unrest in the early days of the revolution.
Egypt’s president has declared himself legally untouchable. Now the question is, what will his opponents do about it? There’s never a good time to drop the dictator bomb, but Morsi appears to have picked the best possible moment. As Nathan Brown pointed out, Morsi’s credibility is at an all-time high, as he rides a wave of international goodwill and praise for Egypt’s critical role in negotiating a cease-fire between Israel and Hamas this week. On the economic front, Morsi has had a similarly monumental week. On November 20, Egypt reached a preliminary agreement for a badly needed $4.8 billion International Monetary Fund loan, and the finance ministry insists that the deal will not be jeopardized by the latest unrest. Did the prospect of new financing for his cash-strapped government embolden Morsi to test the limits of his power? In a cryptic comment on Twitter, FJP advisor El-Haddad said those curious about the timing of the decree should "follow the money trail." Whatever that means, the timing is no coincidence.
Morsi may have hoped that synchronizing the declaration with the two biggest good news stories that Egypt has seen since the revolution would dampen criticism. But the tens of thousands of protesters rallying in Tahrir Square on November 24 suggest that Morsi may have miscalculated the public’s fatigue with the all-too-familiar style of unilateral decision-making that many Egyptians hoped would end with the removal of the SCAF.
Besides the groundswell of public outrage, the biggest victim of the declaration — Egypt’s judiciary — will not go down without a fight. The Muslim Brotherhood already has an antagonistic relationship with Egypt’s Supreme Constitutional Court (SCC), a body that includes judges appointed by Mubarak, some of whom are believed to harbor an anti-Islamist bias. The judiciary has been attacked by Islamists before, and thus far has prevailed in every confrontation. In June, after Islamist MPs opened fire on Egypt’s highest criminal court for its lenient sentencing of Mubarak, the SCC retaliated by dissolving the lower house. When Morsi issued an executive decree reinstating parliament on July 9, the SCC promptly overturned it the same day.
This latest assault on the powers of the judiciary will likely be met with similar hostility. On November 24, the Supreme Judicial Council, Egypt’s highest judicial authority, took the remarkable step of ordering a freeze on activity in all courts and prosecution offices until Morsi agrees to reverse his decree. The powerful Judges Club also endorsed a nationwide judicial strike after condemning Morsi’s "tragic" decision as "an assault on the independence of the judiciary" and called on Egypt’s courts to stage a nationwide strike, already in progress in Alexandria, Damanhur, and Assiut. Meanwhile, the SCC is reportedly exploring the possibility of impeaching Morsi.
In a constitutional no man’s land where power flows from revolutionary legitimacy, not law, Morsi’s declaration is toothless without buy-in from the street, and more importantly, the judges who will make or break its enforcement. Picking fights with the arbiters of justice is usually a losing battle, and Morsi’s assault on the judiciary is no exception. As Egypt’s judicial authorities mobilize to defend their territory from executive overreach, Morsi is about to find out how untouchable his powers really are.
Mara Revkin is a student at Yale Law School and a former Fulbright Fellow in Oman. She provides research assistance on constitutional reform for the New America Foundation’s Middle East Task Force. She can be reached at firstname.lastname@example.org and on Twitter @MaraRevkin.