A coup by the judiciary – not the military – may be a new concept, but its reverberations will be felt beyond Egypt, the Arab Spring geography and the rest of the region.
Egypt’s judgement rendering the Lower House elections unconstitutional may be legal; but it may not be “right”, due to the motivations behind it and the parties that made it possible. There may also be reasons to question the legality of the very judges who administered the decision – they belonged to the ousted regime’s legal system, which may not be seen as impartial.
The long and bitter battle with the remnants of the old guard and revolutionary forces is about to come to a climax. Confusion, disarray, contests, protests and tension have marked the labour of new Egypt’s birth. This is politics at its best.
However, just as Egypt is bracing itself for the most meaningful election in its political history as a republic, the Supreme Constitutional Court’s judgement that the parliamentary elections were illegitimate marks a return to square one: to have or not to have a revolution.
‘Coup’ by law?
The rulings made by the court brought home the judiciary’s authority to render legitimate or illegitimate polity, politicians, the political process and its results in Egypt. These rulings have changed the direction of a post-Mubarak political order in two ways. First, one-third of the seats elected to Majlis al-Shaab, the Lower House, are deemed to be unconstitutional, and thus null. Secondly, the Political Disenfranchisement Law drafted by the very same body is now judged illegitimate.
“What is decided by voters in multi-stage elections goes up in smoke. It makes a mockery of the democratic process.”
What is decided by voters in multi-stage elections goes up in smoke. It makes a mockery of the democratic process and throws the entire future of democratic transition in the Arab region in disarray.
From November 2011 until January 2012, nearly 30 million Egyptians, from all walks of life, took to the ballot box for the first time in living memory in a free and fair election. Political parties of all ideological stripes, new and old, participated, and the results were astounding – giving the Freedom and Justice party, al-Nour and Wafd al-Jadid about 40 per cent, 30 per cent and ten per cent of votes respectively. It resulted in the most diverse parliament post-independence Egypt had seen.
However, a constitutional bone of contention was raised concerning the proportion of individual lists to party lists. After a stormy debate, the Supreme Council of the Armed Forces declared that a third of the chamber’s seats would be allocated to independent lists, with the rest for political parties to contest – although independents affiliated to political parties did, in fact, also contest upon the individual lists. This was a practice the former ruling party deployed in all elections.
Fast-forwarding to June 2012, in the middle of one of the most highly charged elections in the Arab world, the ruling against the legislature also implies that the bicameral structure of the parliament may be completely dissolved, and new elections fixed at a later date to choose legislators.
At the very same Supreme Court session that handed down this decision, the Political Disenfranchisement Law was rejected, with Ahmed Shafik’s lawyer present to argue his client’s case, and the law’s “unconstitutionality”.
Now the stage is set for Ahmed Shafik, the last of Hosni Mubarak’s prime ministers, to contest the second round presidential elections against the Freedom and Justice party’s Muhammad Morsi. Meanwhile, Mubarak has been sentenced to 25 years in jail for failing to stop the killing of protesters during the January 25 revolution, and is now languishing in the hospital of Tora prison.
SCAF’s position as the exclusive maker of laws in Egypt has been restored, and one may legitimately ask the following questions: What are the implications for the formation of the constitution? What kind of powers will the future president enjoy in an Egypt with neither a constitution nor a legislature? And in what direction is democracy heading in Egypt?
A ‘passive revolution’?
A fitting idea for what has been unfolding in Egypt may be borrowed from Gramsci’s idea of “passive revolution”. In the womb of Egypt’s January 25 revolution lie the felool [“the remnants”], side by side with the new and late-comers to the country’s politics.
“Some loss of unity and autonomy within the revolutionary bloc has been due to use of fear: the tactic of spreading ‘fear’ of a Brotherhood-led Egypt.“
It involves a counter-revolution, a revolution in reverse from the remnants. In one sense, this is the huge difference between Tunisia and Libya, on one hand, and Egypt, on the other. A great deal of the old system outlived Mubarak – not just the army but also the capital that profited from the Mubarak era, the judiciary and branches of the security apparatus.
A passive revolution, in this case, has involved mobilisation by the remnants to counter-attack. Classically, capital, laws, and the use of legislation were amongst the instruments used to re-socialise society into hegemonic practices. In this instance, society is segmented or compartmentalised, geared towards the creation of preferential treatment.
The picture is slightly different in Egypt. Some loss of unity and autonomy within the revolutionary bloc has been due to use of fear: the tactic of spreading “fear” of a Brotherhood-led Egypt – which has understandably worked even in the first round of the presidential elections: Abdel Moneim Abol Fotouh took votes from Mohamed Morsi, and Hamdeen Sabahi took votes from Abol Fotouh – all based on calculations of fear of Islamism. The Copts give a more exaggerated example of this.
In fact, the revolutionary forces needed a single candidate; instead, naively presuming the revolution was safe, they opted for competition instead of solidarity: Sabahi, Abol Fotouh, ElBaradei, Ahmad Maher or even Moussa could have given the revolution a single candidate.
I have excluded an Ikhwan candidate from this for one reason: that was the gamble and the risk the Brotherhood took by fielding a presidential candidate to beef up their power against SCAF. Upping the ante was not going to work with the military: they had designs on the executive, and this is where Shafik has come in handy.
SCAF is made up of “old dogs” with many tricks in their inventory of weapons: they have opted for a juridical “white coup”, and not a classic junta-led putsch. For now, they seem to have flattened the Muslim Brotherhood with a fatal blow: getting the judiciary to declare the Ikhwan-dominated legislature illegitimate.
The longest week in Egyptian politics
The idea of a “military coup” must have crossed the minds of millions pondering the next chapter in Egypt’s revolution.
Instead, of late, the coups have been coming from an unlikely source: the judiciary. Judges sentenced the ousted president to life imprisonment – judicially that is a coup too. Except for the counter-coup that absolved Mubarak’s sons and a powerful businessman (noted for his close association with Mubarak) of serious corrupt charges.
On the back of these events, pressure from SCAF for a quick decision on the composition of the Constituent Assembly (CA) tightened the screws on the new post-Mubarak polity.
“It is legitimate to ask whether a military coup by judicial bench is indeed what has engulfed Egypt since the Supreme Court decision.“
The latest judgement, in theory, should not affect the Constituent Assembly. However, right now, this body, tasked with drafting a constitution, may itself face an uncertain future. This is in spite of a second composition of the CA, endorsed on June 12 by legislators, following agreement between the main political parties. However, even this development met with opposition, often by the same minor political parties and MPs whose share of the public vote was minimal and who, understandably, vie for a say on the historic document which will define the rules of political engagement in Egypt.
The presidential run-off is an epic culmination to a week drenched in political dramas and twists that do not bode well for Egypt’s bifurcated polity, now threatened with uncertainty, sclerosis and the potential for violence.
There are reasons to be concerned: with the military’s personnel being given the power to arrest citizens, it is legitimate to ask whether a military coup by judicial bench is indeed what has engulfed Egypt since the Supreme Court decision.
If it is, this is brinkmanship. The revolutionary bloc’s leaders have now one final basket to save Egypt’s revolution: to resort to the ballot. It is one way of sparing Egypt the bullets of an army, now seemingly intent on derailing the full civilianisation of politics. A fight of sorts may be looming and can no longer be dismissed as unrealistic.
Egypt may be tottering close to the edge, but it will be an ongoing game of chess among a variety of political actors, by no means a winner-takes-all equation. The clock cannot be turned back. Nonetheless, some scenarios – some more far-fetched than others – must be pondered.
The legal route
Rule of law is, for now, the main guarantor of social peace. One must note that, even in Mubarak’s era, whole elections were invalidated because of regime manipulation. So this is one reason why the Supreme Court’s decision must be respected.
Egypt, like other Arab Spring states, is torn between two sets of competing but interchangeable sets of legitimacy: democratic and revolutionary. Personally, I have always believed, perhaps romantically, that revolutionary legitimacy is the conscience of politics in societies where the informal was invalidated by 50 years of tyranny. Democratic legitimacy seeks formal structures, procedures and contracts that frame politics.
“The Ikhwan and the main political stakeholders, understandably, sought secure futures through institutionalisation.“
“Rationalising” politics must not, in the current Arab Spring geography, kill revolution. There is a price for this: continuous tension, disarray and even varying forms of violence (such as in Libya) and never-ending contests as in Egypt and Tunisia. SCAF and the old guard sought from the outset to extinguish the revolutionary flame.
The Ikhwan and the main political stakeholders, understandably, sought secure futures through institutionalisation, complacently relying on political formalism, thus generally acting without the protection of a revolutionary bulwark against the old guard. After Shafik emerged as a rival to the Islamist candidate, Dr Morsi’s campaign had to be re-packaged as the “revolution’s candidate”.
The Brotherhood’s Shura Council vote, rightly, endorsed by a 90 per cent majority the decision to accept the court ruling. Not to do so would play into the hands of many a “conspirator” against the Muslim Brotherhood. This means Morsi goes ahead and contests the run-off elections as a legal route to rescue whatever is left of Egypt’s revolution.
The Ikhwan gambled first when they decided to run for the presidency; and now they are sticking to their guns. It is another gamble: if Shafik wins then it will have been, in the absence of fraudulence, a democratic contest which the Brotherhood has rendered legitimate. If Morsi wins – and that is another gamble – he will face a grim prospect of being a lame-duck president without the backing of a democratic constitution defining his powers and, after this week’s verdict, without the protection of a democratically elected parliament. SCAF would be in possession of him, and the entire political process, including having control of constitution-framing.
Downsizing the Ikhwan
The Muslim Brotherhood, despite a history of struggle and good intentions to serve people and country, has perhaps miscalculated by contesting power on all fronts. This has made it the natural rival of SCAF and the second pole of power in Egypt.
In this bi-polar state of affairs, the “conspirators”, including some among the country’s fragile “liberals”, have multiplied every step of the way in the post-Mubarak democratic reconstruction. Not only were the walkouts from the CA by various parties and members resulting from countertendencies against the Brotherhood, but the democratic process and the revolution in its entirety were deployed effectively to fragment polity and produce the kind of political paralysis that is today playing into the hands of the old guard.
The Ikhwan, in particular being a non-licensed organisation, may be targeted as one way of downsizing the Islamists and stemming the tide of a Brotherhood-led North Africa. Partly, the game is no longer about winning back Egypt from Islamists. It may be about nipping in the bud a tide in which Egypt is an ideological epicentre, Libya its source of wealth and Tunisia its trend-setter.
Now that the army has given powers to police the public, all pro-revolution figures are represented with the grim scenario of restraint and the draconian management of the current crisis.
Egypt here will need the solidarity of its people and reformers – ElBaradei for example, among thousands of others – to provide vision and quick responses as fluidity engulfs the most important Arab state.
Back to square one: Tahrir
The public will speak out on this epic weekend, during which the run-off presidential election decides the fate of a region, and not just of Egypt. Voters are most likely going this time to exercise their right as never before: the youth’s revolution is at stake – not simply the fate of a few candidates, parties or political elites.
The mobilisation that preceded Egypt’s longest week in politics might have been calculated as a rehearsal for taking on the might of an old guard not only rejecting its new inferior status, but also fighting back for lost privileges. Like the Ikhwan, SCAF has gambled – and gamblers lose some of the time. SCAF’s fight with the Islamists is one thing – however, its fight with the youth of Egypt and the revolution is something else. It is a fight that cannot be solely decided through conventional politics.
It may well be decided once and for all in the public square: a mother of all revolutions that buries the old guard and stamps tahrir [“freedom”] with permanence. The “public square” dynamic is not tied to partisan politics or to political figures or formal processes.
It obeys only one law: that of freedom and dignity. So it could be that, in Egypt, renewed resistance from below for freedom and dignity in Tahrir Square, as well as other people’s arenas, could still decide the law of the land.
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).