The Middle East Channel

Cairo’s Judicial Coup

In March 2011, I paid a visit to Egypt's Supreme Constitutional Court (SCC), located on the banks of the Nile in the Cairo suburb of Maadi. Two things immediately struck me. First, there was a tank parked outside of a structure that hardly seemed to be a military site. Second, the court was a beehive of activity. Since at the time Egypt had no constitution, I could not figure out why the employees were so busy.

Now it is clear that I was too quick to dismiss what I saw both inside and outside the building. The SCC's actions today, occurring in the context that they do, reshape Egypt's transition process -- so much so that some Egyptians will likely wonder if they are in any "transition process" at all. That concern is justified. The "process" part was already dead. Now the "transition" part is dying.

The problem with the rulings is not primarily legal. There is a strong, though not inevitable, logic to the rulings taken individually. The political exclusion law, which was clearly aimed at specific individuals (most notably Omar Suleiman) and which deprived people of political rights without criminal charges or judicial process was obviously open to challenge. The parliamentary election law also ran against past SCC rulings requiring independents to have the same chances to get elected as party members. Of course, since the two-thirds of seats assigned to party lists were written into the constitutional declaration (as amended in September 2011), so that could not be challenged easily. But for the remaining one-third the case of unconstitutionality was easier to make. (Past rulings rested in part on constitutional rights in the 1971 constitution that had been removed from the March 2011 constitutional declaration, as Harvard's Tarek Masoud has pointed out. But there was still strong jurisprudence suggesting that the court regarded the system as discriminatory against Egyptians who were not members of any party.)

The content of the rulings were therefore not shocking -- they were the most likely outcomes, though hardly the only possible ones. But the immediate rulings, particularly the timing and speed, were a big surprise. In the past, the SCC has been rather more deliberate in its rulings. In 1987, the SCC dissolved a parliament elected in 1984. In 1990, it dissolved a parliament elected in 1987. In 2000, it struck down a parliamentary election law just as the parliament elected under that law was completing its term. The court delayed ruling on a constitutional challenge of trials of civilians in military courts until an amendment removed the constitutional basis for the challenge in 2007. Today, by contrast, it dissolved a parliament elected earlier the same year and it ruled on a case involving a presidential candidate on the same day it heard the case.

The full ramifications of the ruling are not yet evident, and it will take time to clear the legal brush. What happens to the constitutional assembly just elected? The question is both legal and political: legally, can a constitutional assembly elected by an unconstitutional parliament still sit? Does the parliament's passing of a constitutional assembly law remain valid even if the parliament is dissolved and the Supreme Council of the Armed Forces (SCAF) has not approved the law? Even if the constitutional assembly is not dissolved by this ruling (and as I write this, that question is not clear) can the fact that the parliament elected some of its own members to the body (even if they are no longer parliamentarians) be used to challenge the body? And politically, will those who were going to boycott it now agree to take their seats? And in the legal realm, a new parliamentary election law is needed. Who will issue it? The SCAF in its waning days by decree? The new president by decree? And more generally, will the SCAF use the absence of parliament to parachute in a new constitutional declaration so that it does not have to surrender all its power to the president at the end of the month? Or will it revive the 1971 constitution it cancelled last year?

If the details are unclear, the overall effect is not. What was beginning to look like a coup in slow motion is no longer moving in slow motion. The rulings themselves are perfectly defensible. The SCC is diverse enough in its composition that it is not anybody's tool. (Faruq Sultan, the chief justice considered suspect by some because of his past ties with the military, recused himself from the Shafiq case). The SCC clearly felt threatened by recent parliamentary moves against the court, though I do not know how much that sense of threat influenced the justices. Therefore, I do not see this as what Egyptians call "telephone justice" -- in which a call from a high official to a judge decides a case.

But that may not matter in the long run. The dispersal of parliament, the sudden constitutional vacuum, the Shafiq surge, the reversion of state-owned media, the revival of a key element of the state of emergency by a decree from an unaccountable justice minister -- all these things point in one direction. Last March I wrote that, "unless the SCAF has the appetite for a second coup, or somehow discovers a way to shoehorn in its puppet as president, the constitutional vehicle that gave the military such political authority will soon turn into a pumpkin." Now it appears that the SCAF has regained its appetite and an old-regime candidate may soon win the presidency.

Democracy -- in the sense of majority rule with minority rights -- is now losing badly. Earlier this year, in an article on the Egyptian judiciary, I wrote that the real struggle in Egypt was "between the forces of politics, popular sovereignty, and democracy on the one hand and bureaucracy, expertise, and professionalism on the other." Now it is clear who is winning. In light of recent events, there will likely no longer be an Egyptian majority able to act coherently.   

Civilian political forces are already engaged in bitter recriminations. Non-Islamist forces are holding the Muslim Brotherhood responsible for the result because the Islamists seemed willing to cut a separate deal with the military. The charge has some plausibility. And suspicions will be deepened by the Brotherhood's meek response so far and by rumors about the content of recent SCAF-Brotherhood contacts. But the reverse charge is just as true: non-Islamists openly and repeatedly sided with the military against the Islamists on the explicit grounds that the Islamists had too much popular support and by regularly making the implausible claim that the popularly-elected parliament had no democratic legitimacy.

The Egyptian "deep state" is neither as deep nor as coherent as the term implies. But it seems to have more depth and coherence than those outside of it. And that is enough to mean that at the end of June, Egypt's transition may well be from military dictatorship to presidential dictatorship.

Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.

KHALED DESOUKI/AFP/GettyImages

The Middle East Channel

Bahrain medics’ jail terms reduced after appeals

Bahrain's appeals court acquitted nine medics and convicted nine others on Thursday while also reducing the latter's sentences. The medics, who are all Shiite Muslims, had been convicted for their involvement in pro-democracy protests in February and March 2011 in which they treated  injured protesters. In September 2011, the medics were found guilty of publically inciting "hatred and contempt" and attempting to overthrow the government. The charges included weapons possession and occupying the Salmaniya Medical Complex in Bahrain's capital, Manama. They were also accused of blocking Sunni Muslims from the hospital. The 20 doctors and nurses were initially sentenced five to 15 years in prison. Senior orthopedic surgeon, Ali al-Ekry, had his sentenced reduced to five years, another's term was reduced to three years, and the rest were decreased to a year. Two of the medics did not appeal and are believed to either be in hiding or to have left Bahrain. The incarceration of the medics drew widespread international condemnation, which became particularly intense as reports emerged that most of them had been tortured while in custody.

Syria

U.N. monitors were allowed access on Thursday to the embattled town of Haffa, after the Syrian government said it had been "cleansed." The observers were blocked for two days from the site after the Syrian regime announced it had regained control after eight days of fierce clashes. The U.N. envoy found the town almost deserted; buildings had burned down and a single corpse lay in a street. Violence has steadily escalated to a civil war, according to the United Nations. The British-based Syrian Observatory for Human Rights announced the death toll since March 2011 has reached 14,476, with 2,302 killed just in the past month. Tensions have increased between the United States and Russia over a course of action on Syria. On Tuesday, U.S. Secretary of State Hillary Clinton accused Russia of supplying Bashar al-Assad's government with attack helicopters. Russia accused the United States of hypocrisy saying it supplied other countries in the region with weapons used to suppress demonstrations. Clinton did not clarify if the helicopters provided by Russia were new shipments or routinely refurbished aircraft. According to a U.S. Department of Defense official, Clinton "put a little spin on it to put the Russians in a difficult position." The United States has ramped up its efforts to support the Syrian opposition with "logistics, not arms." The Central Intelligence Agency and the State Department are coordinating with opposition groups, along with Saudi Arabia, Turkey, and Qatar, to develop supply routes and conduct communications training.

Headlines  

  • Egypt's ruling military council has reinstituted martial law, raising concerns that Ahmed Shafiq might be banned from presidential elections and run-offs may be postponed.
  • Libya's Supreme Court declared a law passed in May banning the glorification of former leader Muammar al-Qaddafi unconstitutional.
  • Two charities are pushing for the Israeli blockade on Gaza to be lifted after finding its only fresh water source too contaminated for consumption.

Arguments & Analysis 

How Drones Help Al Qaeda' (Ibrahim Mothana, The New York Times)

""Dear Obama, when a U.S. drone missile kills a child in Yemen, the father will go to war with you, guaranteed. Nothing to do with Al Qaeda," a Yemeni lawyer warned on Twitter last month. President Obama should keep this message in mind before ordering more drone strikes like Wednesday's, which local officials say killed 27 people, or the May 15 strike that killed at least eight Yemeni civilians. Drone strikes are causing more and more Yemenis to hate America and join radical militants; they are not driven by ideology but rather by a sense of revenge and despair. Robert Grenier, the former head of the C.I.A.'s counterterrorism center, has warned that the American drone program in Yemen risks turning the country into a safe haven for Al Qaeda like the tribal areas of Pakistan - "the Arabian equivalent of Waziristan." Anti-Americanism is far less prevalent in Yemen than in Pakistan. But rather than winning the hearts and minds of Yemeni civilians, America is alienating them by killing their relatives and friends. Indeed, the drone program is leading to the Talibanization of vast tribal areas and the radicalization of people who could otherwise be America's allies in the fight against terrorism in Yemen."

Middle East: the Syrian Cockpit' (The Guardian)

"It is probably fair to say that what unites most outside powers is a desire to avoid an outcome which would be against their national interests rather than a positive desire for a particular result. Russia and Iran do not want to see an ally go down the tube, yet Moscow does not want to be saddled with a regime that cannot control its own people. Even the Iranians probably note, as they supply advisers and security equipment to their Syrian friends, that Iran dealt with its own problems of public disorder without resorting to tanks or artillery. Nobody wants to lose an ally but nobody wants an ally who is crippled. Probably only Saudi Arabia, intent on making Syria into a Sunni country again, and at the same time striking a blow against Iran, has anything like an unalloyed view of the situation."

Give Obama Elbow Room on Iran' (Trita Parsi, The New York Times)

"Two central factors are driving Washington's negotiation strategy at this point. The first is Congressional obstructionism and President Obama's limited room to maneuver in an election year. The second is outsize expectations about what the current sanctions against Iran can achieve. Both must be abandoned if talks are to succeed. Mr. Obama needs a continuing diplomatic process to calm the oil markets because of the coming election. Yet, precisely because of the election, he has limited ability to offer the Iranians relief from sanctions in return for nuclear concessions. Congress is actively seeking to make a deal on the nuclear issue impossible by imposing unfeasible red lines, setting unachievable objectives - and depriving the executive branch of the freedom to bargain."

Deadly Reprisals: Deliberate Killings and Other Abuses by Syria's Armed Forces' (Amnesty International)

"Syrian government armed forces and militias are rampaging through towns and villages, systematically dragging men from their homes and summarily executing them. They are burning homes and property and sometimes the bodies of those they have killed in cold blood. They are recklessly shelling and shooting into residential areas, killing and injuring men, women and children. They are routinely torturing detainees, sometimes to death. In recent field investigations in Syria, Amnesty International has found disturbing new evidence of grave abuses - many of which amount to crimes against humanity and war crimes - committed by the Syrian army in towns and villages around Idlib, and Aleppo, as well as in the Jebel al-Zawiyah and Jebel al-Oustani areas (north-west of Hama) between late February and late May 2012. Towns and villages are being kept under virtual siege by troops who fire indiscriminately into these areas and target those moving in and out of them."

--By Jennifer Parker and Mary Casey