A little over a month ago, I surveyed the array of lawsuits and other legal pretzels littering Egypt's political landscape and wrote a commentary titled "Judicial Turbulence Ahead in Egypt, Fasten Your Seat Belts." In June, when the country's Supreme Constitutional Court forced the dissolution of parliament, that title seemed prescient. Now that newly elected President Mohamed Morsi has summoned that Islamist-dominated parliament right back into session, it is clear that I may have erred seriously in my choice of transportation metaphors. We no longer have a bumpy airplane ride. Instead we have a train wreck in slow motion. Well, actually, forget slow motion.
Let's begin by reviewing what Morsi did -- not that it will help clarify where things stand. Instead it will make clear that at this point, significant actors are no longer acting with any clear strategy or even a defined set of tactics. They seem to be lurching ahead, grabbing any tools conveniently available to advance their short-term interests. If we want a gentler metaphor than a train wreck to describe Egyptian politics, we should realize we are not watching chess or even checkers -- this is a game of bumper cars.
Here's how we got into this mess. Last year, the
ruling Supreme Council of the Armed Forces (SCAF) issued an electoral law that
allowed for two-thirds of the parliament to be elected by party lists. The
other one-third was supposed to go to independents. Because civilians feared
that old regime elements would be able to dominate the independent races, the
SCAF agreed to permit members of legal political parties to run for those seats
as well. One judge from the Constitutional Court said he spoke up at the time
that this would cause legal problems, but he was ignored.
What was the problem that only constitutional cognoscenti saw early on? The Constitutional Court had struck down similar systems in the past because, it said, independents were squeezed out in the process. When the case finally got to court last month, the Constitutional Court -- basing itself on its previous jurisprudence -- found the entire parliamentary election system unconstitutional, leading the body to be dissolved.
Was the court acting at the SCAF's behest? Probably not in terms of the substance of the ruling -- those who know the court best were not surprised by the ruling, only by the speed. The justices were very proud of their past jurisprudence on the subject and had taken the trouble to anchor past rulings broadly and not in any specific language, so the change in the constitution did not change its attitude toward the electoral system. What raised eyebrows was the timing: The court had taken much longer to issue its rulings in the past. This time, however, the haste may have owed more to a Tombstone, Arizona, system of justice: The court was drawing its weapon before the parliament could pull out its more potent one (of gutting the court through legislation).
If the SCAF didn't instigate the ruling, it certainly acted on the ruling with alacrity. Immediately following the verdict, it ordered the parliament dissolved and locked up the building. It also amended Egypt's interim constitutional order to take on the parliament's legislative authority, clip the soon-to-be-elected president's wings, and prevent any attempt to elect a new parliament anytime soon. The intent was clearly to correct the flaw that the SCAF itself had inserted a year earlier: Had it not acted as it did, according to the SCAF's own rules, its authority would have ended when the new president took office.
So what did Morsi do? He canceled the decree dissolving the parliament. Can he do that? His arguments do have a veneer of plausibility -- but only a fairly thin one. First, he says he is not overturning the court's ruling. That ruling didn't dissolve the parliament; it only struck down the law by which the parliament was elected. That is all that the Constitutional Court can do. This may seem like splitting hairs, but in Morsi's eyes, it means that it was the SCAF that actually implemented the ruling. Now Morsi -- replacing the SCAF, which had been serving as acting president -- has canceled that implementation.
In fact, his legal advisor Mohamed Fouad Gadallah claims that Morsi had almost no choice: Nobody has the right under the interim constitution to dissolve parliament. So that body is still there, and necessity requires that it continue to sit with its full authority until a new one is elected. Morsi is generously ordering elections for the new parliament to be held as soon as the constitution is approved, which is what the SCAF itself has said is the right time for new elections. But the old parliament, according to the president, stays until that time. His decree cited all kinds of domestic and even international sources for its authority, but pointedly refused to mention the SCAF's supplementary constitutional declaration last month.
So Morsi seems to be picking a fight with both the judiciary and the SCAF. What's the Muslim Brotherhood's strategy for coming out on top? And how are its various antagonists working to stop it?