Re-constituting Egypt

Today, new Egypt is re-constituting itself through public engagement, not disengagement as in the Mubarak era. The notion of an omnipresent president no longer exists. Even Morsi buckles under pressure; and he may have to rescind decisions and inevitably may have no option but to retract or adjust some of his latest decrees. This may in the short run be at the expense of his standing. However, in the long run it will strengthen his profile as a resilient and responsive president.

The latest sparring between state and society should be taken as evidence of a country re-constituting itself dialogically, even if this means interim confusion, low-key violence and cacophony, from within and without.

The anatomy of the latest crisis – which should be looked as pertinent to democratic reconstruction in a context of state-society relations still shackled by a 60-year-old dictatorial legacy – can be outlined through an approach that considers the fundamentals of the crises unfurling in Egypt – and this partly has consequences for both Libya and Tunisia.

The old and new in the context of the Arab Spring

There is a sparring going on in Egypt between old and new, decaying institutions and others awaiting democratic midwifery to see birth. In a way, the dialectic of life-death makes sense in this context. 

In this sense, the Libyans are luckier than their Egyptian and Tunisian neighbours. They are more or less starting with a clean state. The February 17 revolution may be legitimately called dissolution. Gaddafi’s authoritarian structures of power witnessed a total melt-down. Libyans worry more about tribe and region, which ignite dissension and foment tension and rebellion.

In Egypt and Tunisia, the biggest challenge at the core of democratic reconstruction is surpassing the surviving forces, voices, discourses and their supporting networks. In both, the media, business, civil society and the legal profession forces of conservatism refuse to adjust – much less “die”.

There is one difference: the armed forces and the arts constitute two additional arenas where vestiges of the ancien regime have outlived the ousted ruling head of state and co-dependent inner circles in Egypt. In Tunisia, where the army is small and marginal, it is from within the trade union movement that challenge to the new rulers is mounted, mobilised and organised.

Morsi is up against decaying forces, namely within the judiciary and the media, that cannot be expunged all at once.

President Morsi: Incremental consolidation

This is the key to unlocking how Morsi is attempting to create openings for corroding the remnant forces of the old system of which the legal system is the most challenging, powerful, plural (Bar association, Judges associations, Supreme Constitutional Court and the Supreme Juridical Council) and the hardest to reform.

Morsi seems to be working to a plan – and therefore I do not view the latest crisis as some kind of ill-thought decision taken on the spur of the moment. Banking on his success in the negotiation of the Gaza ceasefire, Morsi picked another moment in his incremental strategy to rid the state he presides over of an arm of the judiciary appointed by none other than Mubarak himself. On this count, Morsi has not committed errors of judgement.

The judiciary calls for reform in Egypt; it is not totally impartial in either its politics or composition. When judges stage a protest calling for the downfall of the regime – as if Morsi, the legitimate president, is on par with Mubarak – then there is something wrong with the judiciary: it has trespassed its jurisdiction in that it may be taking sides in a fight between partisan foes, the Islamists on the one side, and the liberals and leftists united against Morsi’s latest decrees, on the other.

Where Morsi was wrong was at his strategy of how to reform and change corrupt and impartial judges. There are many examples from the world of how to go about this.

Since winning office in July, Morsi is simply trying to avoid a repeat of the Supreme Constitutional Court’s June 2012 decision to dissolve the Islamist-led parliament. Since then, the scene has been set for a battle of wills between the judges and the president. 

Morsi has had some success. In a daring and calculated fashion, but executed deftly and smoothly, he dismissed the Supreme Council of the Armed Forces (SCAF) in August. This move meant retiring Egypt’s two top generals, Defence Minister Hussein Tantawi and General Sami Enan, but he kept them in his political entourage as advisers.

Morsi, however, played his cards skilfully by not opting for replacements from outside SCAF. Instead, he recruited the youngest SCAF general, Abd Al-Fattah Al-Sisi, a military intelligence chief, as Tantawi’s replacement. SCAF had the support of members of the conservative judiciary on which it must have relied to draft its March 2011 constitutional declaration, arrogating to unfettered powers.

In June 2012, SCAF and the Supreme Constitutional Court worked in tandem, more or less conspiring against the country’s freest and fairest elections ever. The latter declared the elected parliament null, invoking the unconstitutionality of the electoral process. The former, a week later, issued its June declaration in anticipation of Morsi’s victory, limiting the powers of the president-to-be. The laws invoked for declaring the unconstitutionality of the elections are not themselves crystal clear, and may be open to all kinds of interpretation as the country had an impartial judiciary.

Many forces and discourses in the country’s civil society, such as the April 6 Movement, protested vehemently and loudly against SCAF’s threat to the revolution and democratic process. Others who are now up in arms, with some justification, against a few of the prerogatives Morsi granted himself were not as vociferous as they are today. And this is confusing – the problem is not that Morsi’s “grab of power” is turning Egypt’s first popularly elected president into a Pharaoh. Rather, fundamentally the notion of an Islamist president like that of an Islamist-leading parliament has not yet been accepted. The sparring between Islamists and non-Islamists will continue unabated in the foreseeable future.

Plus, there is the problem of old habits die hard: if elections do not produce favourable results they must be re-done. Contests in a democracy are periodic: the problem is that some forces within the opposition in Egypt, like in Tunisia, do not yet know “how” to go about the job of the opposition. They know little about the “how” of opposition and focus so much on the “who” of opposition: objecting to all things Islamist at all cost. For, there is no way out of the current impasse in Egypt, and this applies to Tunisia, if the opposition hangs on to the idea that the constitutional processes nearly 80 per cent completed must be abandoned in favour of new elections for new Constituent Assemblies.

Should the current process in Egypt be completely abandoned in favour of new elections, the country will suffer not only from the dire consequences of constitutional and political vacuum, but also from endless abortions of the electoral and democratic processes.

It is expensive to hold elections every six months in a country like Egypt with its multi-stage and complex polls. The 100-member committee assigned to frame the constitution must be encouraged to get on with the job: the practice of boycotts and walk-outs does not measure up to the vocation of law-making, which is expected to be painstaking, arduous, complex and not linear. If Islamists, leftists and liberal forces within parliament agree to disagree, this must be seen as part and parcel of the vocation of legislators who must parley to resolve differences.

Credible figures, including Abdel Moneim Aboul Fotouh, Mohamed El-Baradei, Amr Moussa and Hamdeen Sabahi have got so much potential. They must build their constituencies, prepare their programmes and ready themselves for the next round of democratic contests. In fairness to El-Baradei, he is not asking for dissolution of the current parliament unlike some outlandish voices lost in the new game of democratic reconstruction. A constitution is not the Quran: it can be amended and re-amended in the future if it has questionable articles inimical to democratic reconstruction or civil and political freedoms.

Morsi and the art of the possible

Morsi is wrong on one count. He proceeded on the thinking that because he succeeded in unhinging SCAF, he could repeat this with the judiciary. The judiciary is not the army. 

By granting himself new prerogatives, aimed, as the decree states, to safeguard the country and the revolution, Morsi may have miscalculated on three accounts:

1. The protection of the glorious January 25 revolution cannot be the exclusive bastion of the state, president or a particular political party. The people must do this. Tunisia has taken a leaf from the book of Egyptian politics and a law is being passed to protect the revolution. This is patronising especially that today’s rulers have not made the revolution in the first place.

2. Whilst contextual, the powers Morsi arrogated himself sound like they are open-ended. The publics in the Arab Spring geography want “small” presidency: the self-referential executive powers of the past make the notion of a return to an omnipotent president an anathema in public consciousness. Morsi has forgotten this factor.

3. Morsi, incrementally, is seeking to dismantle judges he thinks are undermining the democratic process. He is reacting to the judiciary of which one branch (the supreme constitutional court – SCC) dismissed a democratically elected parliament. Another arm of the judiciary, the Supreme Judicial Council, upheld the first SCC’s decision. Morsi is concerned about the precedent and his latest decrees are intended to nip this in the bud.

At the core of his concerns is the idea that unelected judges basically have the potential to cancel the people’s voting power. This may yet happen when on December 2 the Shura Council elections come before judges to decide on their legality.

This smacks of “dictatorship”, especially as the courts and unelected judges are mostly inherited from the Mubarak era. Their impartiality is a fallacy. Does the judiciary stand above the people, especially when it has many Mubarak cronies amongst its ranks? Would the judiciary potentially move against the president himself?

Morsi should have explained this to the public. Nonetheless, even this does not warrant decrees that suggest or encourage temporary rule by fiat – taking any decision or immuring the president’s actions from judicial over-reach and revision in his declared political objective to protect country and revolution.

Spirit of legality

The trial and error noted in the processes of democratic reconstruction are normal. There is nothing malign in this, or abnormal which is specific to Egypt or its Arab Spring neighbours. Morsi has set in motion a process of dialogue with the judges through his Justice Minister. This is a step in the right direction. For Morsi to retract the decree to “take any measure” to protect the revolution is not weakness: it is responsiveness.

Note that Mubarak and others were ousted because they did not know when to stop when they had plenty of warning and time. Even the idea by the newly-appointed Prosecutor General, Talaat Ibrahim Abdallah, of revolutionary courts to retry figures from the Mubarak era may need to wait till Egypt goes beyond the interim period of constitution-framing; holds new elections; and has in place a reformed judicial system.

Similarly, it is very healthy that Arab citizens protest when a president claims new sweeping powers that undermine their revolutions. Egypt has no shortage of talent and cadres and its social capital bodes well for defusing the current stand-off between the Islamist-led government and an opposition searching for an identity, role and may be a public.

In the final scheme of things, the missing link in all of the crises witnessed in Egypt, Libya and Tunisia is the absence of legal frameworks and a spirit of laws for reconstituting and re-imagining societies, states and communities. Constitutions alone do not provide this. What is required is the legal ethos that bans branches of government to expand, illegally, at the expense of the others and to infringe on each other’s function and ultimately the freedoms conferred upon the public by revolutions, which belong to the people.

Dr Larbi Sadiki is a Senior Lecturer in Middle East Politics at the University of Exeter, and author of Arab Democratization: Elections without Democracy (Oxford University Press, 2009) and The Search for Arab Democracy: Discourses and Counter-Discourses (Columbia University Press, 2004).