On Thursday, 22 November, Egyptian President Mohamad Morsi went to war with the judiciary. He issued a seven-point decree that included the sacking of the country’s prosecutor-general and announced that all his decisions were immune to appeal “by any way or by any entity.”
Critics have called the move a brazen power grab; admirers call it a “revolutionary decision.” Both sides will agree, however, that the announcement will only further polarize an Egyptian society struggling to reach a consensus on how to proceed after Mubarak’s fall.
The main cleavage is one of Islamists versus non-Islamists. The Egyptian president belongs to the Muslim Brotherhood (MB), the largest Islamist group, which claims that it has a popular mandate to implement the much-vaunted “renaissance project.” Ranged against him are liberals, leftists, and former regime elements entrenched in state institutions.
The Brotherhood may have won nearly half of all parliamentary seats in the November 2011 election, but the margin of Morsi’s presidential victory over his secular rival was a far more modest 51.7 percent against 48.3 percent.
Such a slim majority might not have been considered problematic had Morsi adopted a consensual style of leadership. But Morsi has favored a more aggressive, winner-takes-all approach that not only risks plunging Egypt into further turmoil, but also marks him out as a distinctly unoriginal Islamist.
Take his handling of the Constituent Assembly, the body tasked with drafting a new constitution. Having already stuffed it with his own supporters to ensure a favorable outcome—a presidential system with limited role for the legislature—it risked falling apart after prominent secular and Coptic members walked out earlier this month.
The controversy-prone body was already beset by questions over its legitimacy after the Supreme Constitutional Court (SCC) deemed the Islamist-majority upper and lower houses of Parliament (on whose basis the Constituent Assembly was formed) unconstitutional, albeit on a technicality.
In April 2012, the SCC again played the role of spoiler by ruling that the first Constituent Assembly was unconstitutional on the grounds of its non-inclusiveness, and was expected to pass a similar judgment on the current constituent assembly at the end of the month.
This threatened to derail the ratification of the Islamist-friendly constitution that the MB and their Salafist allies have been busy drafting; hence the fourth article of Morsi’s decree: “No judicial body can dissolve the Shura Council [upper house of Parliament] or the Constituent Assembly.”
In an address to his supporters, the Egyptian president said that his decision was meant to stop “weevils” from the former regime from blocking progress. It is true that judges at the SCC have been overly active in recent months, frustrating the drafting of a new constitution—which will pave the way for new parliamentary elections that observers expect would be won by the Islamists. That a small and unelected clique at the top of the judiciary should be disrupting Egypt’s democratic transition—and with it the MB’s consolidation of power—is a source of deep frustration for Morsi.
Egypt’s judiciary has come under criticism too from grass-roots activists, who accuse it of not doing enough to convict security personnel accused of killing protesters during last year’s uprising. In the past three months, three trials have found policemen and thugs accused of killing protesters not guilty, much to the anger of the victims’ families. The latest trial verdict was announced on 22 November, the day of Morsi’s decree. It proved to be a convenient excuse to make a move against the judges.
Had the Egyptian president stopped at replacing the Mubarak-era prosecutor-general, Abdel-Meguid Mahmoud, he might have come away with his reputation intact. The decree he issued, however, emasculated the judiciary by exempting both Morsi and bodies controlled by the MB from any judicial review for the next three months at the very least. This will give him ample time to steamroll through vital decisions on the country’s future unchecked by the judiciary.
The audacity and breadth of Morsi’s decree sit ill at ease with the limited nature of his stated goals, and his three percentage point margin of victory. It is little wonder, then, that the division-wracked secular opposition united for the first time to challenge what it describes as “Egypt’s new pharaoh.”
The protest held in Tahrir Square on 27 November against the decree drew a respectable quarter of a million people, and the secularists promised further actions in a political escalation seemingly coordinated with the country’s top judges. Egypt’s appeal courts have already gone on strike in protest at the decree, a move unlikely to promote conciliation in an unfolding constitutional civil war.
Morsi’s battle with the judiciary follows a number of successful campaigns to curb the power of other bodies that threaten the MB’s rise. In recent months, editors of independent newspapers and high-ranking members of the press syndicate have decried attempts by Information Minister Salah Abdel-Maqsoud to limit their criticisms of the government.
More recently, trade unions have complained that another MB appointee, the Manpower Minister Ahmed Hassan El-Borai, was attempting to “Brotherhoodize” the unions through a presidential decree that allows the government to appoint board members of unions.
The Egyptian Brotherhood’s tendency to want to dominate and control state institutions is not out of character for the organization. Next door in Gaza, the MB faction Hamas was unable to share power with Fatah after its triumph at the ballot box in 2007. Today, Hamas is more entrenched in its antagonism to its secular rival than ever before, a fact underscored by a recent statement by Mahmud Al-Zahar, Hamas’s chief in Gaza, who said that if Palestinian President Mahmud Abbas was to visit the territory, “he would be arrested.”
Time and time again, Muslim Brotherhood organizations across the Arab word have missed opportunities to build a durable and broad-based consensus for change and reform. Whether by inexperience or design, their policies tended to deepen division and make differences more irreconcilable. Where they have bucked this trend it has been under duress, as is the case in Morocco. Critics say that this raises serious doubts over the MB’s commitment to an inclusive democratic process in which compromise and consensus are essential pre-requisites.
But the bottom line for MB leaders like Morsi is that they feel no moral duty to make concessions to those that have been part-and-parcel of a system that has victimized the group and denied them their rightful place in Egyptian politics. The fact that a former foreign minister under Mubarak, Amr Mousa, should now emerge as the MB’s most vocal critic merely serves to delegitimize the opposition in MB eyes, and renders its calls for greater inclusiveness all the more hypocritical.
Amidst these claims and counter-claims, in Egypt what appears to matter is not so much changing the rules of power than the affiliations of those who have it—and who therefore enjoys its spoils. It is a zero-sum game where enemies must be crushed and power sought and accumulated for its own sake.
Prominent MB member Ali Abdel-Fattah did not recognize the irony when he brushed aside criticisms of Morsi by citing Gamal Abdel-Nasser as an example of a president who resorted to extraordinary decrees under the pretext of defending a revolution. “As long as [Morsi] is democratically elected,” he said, “he has all the right to issue such a declaration.” Before it was secularists side-lining Islamists, now it will be the other way around.
Egypt will not go the way of Zimbabwe by having ‘one man, one vote, one time.’ Nor will it go the way of Syria, thanks to a military that has preferred to remain above the fray. But there will be more protests, more disorder and more economic loss. A badly needed USD4.8 billion loan from the IMF has already been delayed because of the most recent instability, and the Cairo stock market plummeted for a second time in a single week.
That has not put off the combatants. The Supreme Constitutional Court announced that it was going ahead with plans to rule on 2 December on whether to dissolve the MB-dominated Constituent Assembly that has drafted the new constitution. That same assembly has since approved the draft constitution, which paved the way for a referendum. The battle for Egypt’s future goes on.