The Constitutional Aftereffects of Egypt’s Great Escape

On January 29, 2011, nearly a week into the popular uprising that would eventually topple the Mubarak regime, a series of well-organized and violent attacks against prisons took place throughout Egypt. Among those escaping in the chaos were 34 members of the Muslim Brotherhood — including the man who is now Egypt’s president, Mohamed Morsy. Freed alongside this small cadre of Islamist activists were many thousands of regular prisoners held for apolitical (read "criminal") offenses. This flood of prisoners onto the streets resulted in a sharp spike in criminality from which the beleaguered country has yet to recover.

Who bears responsibility for that wholesale prison release and the attendant uptick in crime? This is the question currently fueling the latest in a long series of Egyptian constitutional crises. Sympathizers of the current government tend to blame the Mubarak regime itself. It wouldn’t be the first time that an autocracy had tried to save itself by resorting to such tactics. In 1988, Myanmar’s military government emptied the nation’s prisons in a gambit that proved instrumental (alongside some good old-fashioned repression) in defeating a seemingly unstoppable wave of student-led protests. The junta withdrew national security forces and sat tight while the resulting chaos demoralized the protesting masses, knocking them so far down Maslow’s Pyramid that they eventually gave up and went home.

Yet there are many who think that the ancien régime of Hosni Mubarak, for all of its crimes, was not responsible for this one. In this view, the opening of the prisons — which also led to the release of several dozen incarcerated members from Hezbollah and Hamas — was actually an international affair, organized and carried out by those two groups and the Brotherhood itself.

On Sunday, a court in Ismailia officially requested an investigation of Morsy’s own role in the Great Escape, a move his government has been quick to dismiss as politically motivated, "void, and illegal." The Freedom and Justice Party, the political arm of the Brotherhood, also took to Twitter, warning, rather ominously, that the presiding judge will "end like any other judge who does not respect the law or the constitution."

The government’s official position on Morsy’s incarceration is that it was itself technically illegal, meaning, by extension, that his escape from it could not have been a breach of the law. Yet the possibility of his having colluded with these foreign organizations with the intent to commit a crime — something the opposition claims to have audio records of — could itself potentially constitute treason, a charge that brings with it the prospect of life imprisonment.

This matter is coming to a head, not coincidentally, at a complicated time for the embattled Morsy government. While the regime can cite a series of electoral victories since Mubarak’s fall, many Egyptians argue that it has since lost its legitimacy through mismanagement, draconian actions, and disrespect for both national minorities and the constitutional separation of powers. Egypt’s surging opposition has likewise called for a series of protests on June 30. (They’ve dubbed this new campaign the Tamarod, or "Rebel," Movement.) They hope to use massive demonstrations to force the Islamists out of office, perhaps by provoking an intervention from the armed forces.

Behind many of the most clamorous complaints lies the one-sided constitution that was pushed through by the Brotherhood last year in a show of majoritarian brute force. Having already inspired much ill-will against the government, this same constitution is now providing Morsy with a nice legal loophole.

A sitting president can be charged with a crime only once he has been impeached. Article 152 of the current Egyptian Constitution stipulates that commencing impeachment in turn requires an official resolution supported by one-third of the lower house of the country’s bicameral legislature. Yet Egypt’s lower legislature was dissolved by Constitutional Court order in June of 2012 as part of the ongoing showdown between the nation’s judiciary and the ruling party. The government contends that, since no alternate constitutional route for impeachment exists, the president cannot possibly be prosecuted until a lower house is put in place at some future date. This is an uncharacteristically technical argument from an administration that has previously treated the law as means rather than an end unto itself.

If there were ever a conundrum to stump a sphinx, surely this would be it. The latest chapter of Egypt’s experience serves as a cautionary tale about the dangers of majoritarian constitution-making, and the institutional vacuums that revolutions leave behind. In a political panorama of weak, embryonic or even (as with the dissolved assembly) nonexistent government bodies, there can be little to stop an emboldened executive from overreaching, or through which to demand accountability when they do.  Whatever else one can conclude from this story, it certainly hints at a government that is unlikely to leave power in good democratic fashion — and a constitutional order almost certain to die when it does.

We’ll see what happens on Sunday.

Daniel Lansberg-Rodríguez is a fellow at the Comparative Constitutions Project, and a recent recipient of a Gabr Fellowship, an initiative dedicated to fostering good will between Egypt and the West. He tweets at @Dlansberg.