The Middle East Channel

Egypt's untouchable president

If Egyptian President Mohamed Morsi is ever in the market for a presidential theme song, he should consider, "U Can't Touch This." American rapper M.C. Hammer's infectiously arrogant refrain aptly sums up a stunning power play by the Egyptian president on November 22 -- a unilateral constitutional declaration that immunizes his decisions from judicial oversight and preempts legal challenges to an Islamist-dominated constitutional process. In short, the declaration makes Morsi's decisions legally untouchable. If this were Zimbabwe, we would call it dictatorship. But in Egypt, it's just business as usual in a dysfunctional democratic transition.

Morsi, who was elected Egypt's president in June on a platform pledging to purge remnants of the former regime from state institutions, is now taking cues straight from the playbook of his authoritarian predecessor, Hosni Mubarak. The president has attempted to justify the declaration as a necessary intervention to alleviate political gridlock, with the aim of achieving "revolutionary demands and rooting out remnants of the old regime." A senior advisor in the president's Freedom and Justice Party (the Muslim Brotherhood's political wing), Gehad El-Haddad, took to his Twitter feed to defend the decision in less tactful terms. "Someone needs to get real," El-Haddad tweeted dismissively to critics who suggested that the president had less radical alternatives at his disposal.

But while Morsi's paternalistic rationale might have passed muster a year ago, the Egyptian public has long since lost patience with the notion that repressive means are permissible in the pursuit of revolutionary ends. It's worth recalling that Morsi's margin of victory in the presidential election was a razor-thin 3.5 percent -- hardly the sweeping popular mandate needed to legitimize a power grab of this magnitude. Public backlash to the declaration has been swift and scathing. Prominent political figures have mobilized against Morsi and three of the president's own advisors have stepped down in protest. Mohamed ElBaradei branded Morsi "the new Pharaoh," as tens of thousands of protesters called for Morsi's resignation in Cairo and cities across Egypt, at times clashing violently with the president's supporters. As of November 25, at least 227 injuries had been reported. Dozens of anti-Morsi protesters have been arrested thus far, and hundreds more have been detained on the infamous Mohamed Mahmoud Street, where a demonstration was staged last week commemorating the anniversary of a deadly crackdown on peaceful protesters at the same place last year.

Whether or not the violence continues to escalate depends on if, and how quickly, Morsi is willing to make concessions. A full-blown retraction of the decree might be seen as an unbearable blow to Morsi's credibility, but he may be persuaded to scale back some of its more problematic provisions. Much also depends on whether protesters are willing to back down from their bottom-line demand -- Morsi's removal -- and settle for a more realistic compromise. Lurking in the shadows is Egypt's military, unceremoniously ousted from power and perhaps eyeing an opportunity for a comeback. ElBaradei warned on November 25, "You cannot exclude that the army will intervene to restore law and order if the situation gets out of hand."

This is not Morsi's first power grab, but it is certainly his most brazen. On August 12, less than six weeks after his inauguration, the new president took his first step toward eviscerating constitutional limitations on executive power with a decree that jettisoned the Supreme Council of the Armed Forces (SCAF) from the political scene and gave Morsi sweeping legislative powers that arguably exceeded those held by Mubarak. In a bait-and-switch maneuver, Morsi rescinded an existing SCAF declaration designed to curb the powers of the incoming civilian leader and replaced it with one that authorizes the president to legislate in the absence of an elected parliament and intervene in the constitutional process. Adding insult to injury, Morsi strong-armed the ruling generals into early retirement just hours after abrogating martial law.

Even when Egypt had a permanent constitution, Mubarak had no trouble finding and writing new loopholes to justify the abuse of executive power. But in today's fluid transitional legal environment, where rule-by-decree is the new rule of law, it's that much easier for the president to overstep the traditional bounds of executive authority, as Morsi did so flagrantly on August 12 and November 22.

In the context of a murky constitutional interregnum that invites unilateral decision-making, it's not all that surprising that Morsi would try to stabilize a floundering democratic transition by rewriting the rules of the game yet again. But what is remarkable about Morsi's latest decree is not the powers it gives the president, but those it has taken away from the judiciary. The seven-article constitutional declaration radically recalibrates the balance of power in an already fragile political system by stripping Egypt's highest courts of their authority to challenge executive decisions. Not only does the declaration bar courts from contesting any presidential decrees passed since Morsi assumed office in June, it also preempts lawsuits seeking the dissolution of the constituent assembly and the upper house of parliament. Legal experts believe that the declaration could provide a basis for reinstating the Islamist-dominated lower house of parliament, which was dissolved by court order on June 15.

The upshot of the decree is absolute immunity for Morsi's political agenda, including the process of drafting a new constitution. The 100-member constituent assembly, tasked with writing the new charter, was on the verge of imploding for a third time last week, when at least 12 liberal and Christian members resigned their seats over complaints that their recommendations were being ignored by the Islamist-dominated assembly. The walkout -- which included such prominent figures as former presidential candidate Amr Moussa -- underscored the dubious legitimacy of a constitutional process that has been repeatedly assailed for its underrepresentation of political and religious minorities as well as women. By shielding the constituent assembly from pending legal challenges seeking its dissolution, Morsi's decree virtually guarantees that the current constituent assembly will survive long enough to complete a draft, however flawed. 

In an apparent effort to paper over the declaration's authoritarian implications and preempt critics, the text is littered with concessions to revolutionaries and non-Islamists. Morsi's extension of the deadline for drafting a new constitution by two months seems designed to appease liberals, who have accused Islamists of railroading over their concerns in an effort to conclude the messy process as quickly as possible. In another gesture to revolutionaries, the decree reopens the trials of Hosni Mubarak and other members of his regime, in addition to dismissing Egypt's prosecutor general, a Mubarak-appointee who has been pilloried for his role in the relatively lenient sentencing of the former president -- to life in prison -- last June.

Ironically, a declaration whose stated intent is the eradication of the former regime and fulfillment of the revolution's goals, has actually turned the clock back to Mubarak's era -- a time when Egyptian society was held hostage by an executive branch that operated above the law. In seizing dictatorial powers in the name of safeguarding Egypt's democratic transition, Morsi is starting to look more and more like a reincarnation of his deposed predecessor.

Even the jingoistic rhetoric Morsi has employed to rationalize his power grab reeks of Mubarakisms. "Those who are trying to gnaw the bones of the nation" must be "held accountable," Morsi said on November 23. The tactic of scapegoating unspecified threats to national security is reminiscent of one of Mubarak's favorite metaphorical devices -- the "foreign fingers" he blamed for instigating unrest in the early days of the revolution.

Egypt's president has declared himself legally untouchable. Now the question is, what will his opponents do about it? There's never a good time to drop the dictator bomb, but Morsi appears to have picked the best possible moment. As Nathan Brown pointed out, Morsi's credibility is at an all-time high, as he rides a wave of international goodwill and praise for Egypt's critical role in negotiating a cease-fire between Israel and Hamas this week. On the economic front, Morsi has had a similarly monumental week. On November 20, Egypt reached a preliminary agreement for a badly needed $4.8 billion International Monetary Fund loan, and the finance ministry insists that the deal will not be jeopardized by the latest unrest. Did the prospect of new financing for his cash-strapped government embolden Morsi to test the limits of his power? In a cryptic comment on Twitter, FJP advisor El-Haddad said those curious about the timing of the decree should "follow the money trail." Whatever that means, the timing is no coincidence.  

Morsi may have hoped that synchronizing the declaration with the two biggest good news stories that Egypt has seen since the revolution would dampen criticism. But the tens of thousands of protesters rallying in Tahrir Square on November 24 suggest that Morsi may have miscalculated the public's fatigue with the all-too-familiar style of unilateral decision-making that many Egyptians hoped would end with the removal of the SCAF.

Besides the groundswell of public outrage, the biggest victim of the declaration -- Egypt's judiciary -- will not go down without a fight. The Muslim Brotherhood already has an antagonistic relationship with Egypt's Supreme Constitutional Court (SCC), a body that includes judges appointed by Mubarak, some of whom are believed to harbor an anti-Islamist bias. The judiciary has been attacked by Islamists before, and thus far has prevailed in every confrontation. In June, after Islamist MPs opened fire on Egypt's highest criminal court for its lenient sentencing of Mubarak, the SCC retaliated by dissolving the lower house. When Morsi issued an executive decree reinstating parliament on July 9, the SCC promptly overturned it the same day. 

This latest assault on the powers of the judiciary will likely be met with similar hostility. On November 24, the Supreme Judicial Council, Egypt's highest judicial authority, took the remarkable step of ordering a freeze on activity in all courts and prosecution offices until Morsi agrees to reverse his decree. The powerful Judges Club also endorsed a nationwide judicial strike after condemning Morsi's "tragic" decision as "an assault on the independence of the judiciary" and called on Egypt's courts to stage a nationwide strike, already in progress in Alexandria, Damanhur, and Assiut. Meanwhile, the SCC is reportedly exploring the possibility of impeaching Morsi.

In a constitutional no man's land where power flows from revolutionary legitimacy, not law, Morsi's declaration is toothless without buy-in from the street, and more importantly, the judges who will make or break its enforcement. Picking fights with the arbiters of justice is usually a losing battle, and Morsi's assault on the judiciary is no exception. As Egypt's judicial authorities mobilize to defend their territory from executive overreach, Morsi is about to find out how untouchable his powers really are.

Mara Revkin is a student at Yale Law School and a former Fulbright Fellow in Oman. She provides research assistance on constitutional reform for the New America Foundation's Middle East Task Force. She can be reached at mara.revkin@yale.edu and on Twitter @MaraRevkin.

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Marc Lynch

Morsi's Mixed Moves

Egypt has had quite a week, even by its inimitable standards. President Mohamed Morsi brokered a ceasefire between Hamas and Israel, returning Egypt to the regional political balance and proving to be the pragmatic, realistic leader for which many had hoped. Almost immediately afterward, his government announced a preliminary deal with the International Monetary Fund for a desperately needed $4.8 billion loan. But then, just as Morsi stood poised to bask in the international acclaim, he suddenly released a presidential decree granting himself extraordinary powers and triggering a surge of popular mobilization protesting his decisions.

Morsi's move should be seen in the context of Cairo's intensely polarized, gridlocked politics rather than as some pure expression of Islamist intent. His power is more impressive on paper than in reality. But there is no real question that Morsi went too far: decrees changing the rules of the game and placing the executive above any appeal were dangerous and wrong when done by the SCAF, would have been dangerous and wrong if done by a President Shafiq, and they are dangerous and wrong when done by Morsi. They should be reversed. But that will no more solve the underlying problems than last week's Israel-Hamas ceasefire will solve the enduring problems of Gaza. 

Morsi's decree raises some truly troubling issues for Egypt's transition. It sparked large protests, violent clashes, judicial backlash, resignations from his administration, rare unity among opposition politicians, and severe new doubts about Morsi and the Muslim Brotherhood's political intentions. Cairo is bracing itself for dueling protests scheduled for Tuesday, with few signs yet that either side is preparing to back down. But the last year should have taught us to be less inclined to see the sky falling at the first sign of outrage on Twitter than we used to be. The political crisis has been exacerbated by the now familiar pattern of exaggeration, hyperbole, and false rumors spreading like wildfire through the media and the internet to a polarized public primed to believe the worst. And it has been fueled by the deeply unfortunate polarization which has poisoned Egyptian politics over the last year, for which both the Islamists and their rivals bear their share of responsibility.  

The surge of popular and institutional mobilization against Morsi's move are positive signs, since these are the only way to push back against executive overreach in the absence of a parliament, a constitution, or any institutionalized avenues of political contestation. Will the mobilization against Morsi's decree be another January 25 (unlikely), another round of the violent, pointless chaos of November and December 2011 (hopefully not), or -- in the best case -- a return to the unified, politically focused, and effective shows of popular force like those in the spring and early summer of 2011? Or will the mobilization and counter-mobilization succumb to the poisonous dynamics of an escalating existential battle between Islamists and their enemies that could destroy any hope of finding a shared foundation for a new constitutional order? 

Morsi's Gaza triumph has rapidly faded from the Egyptian public arena in the face of the political crisis sparked by his power grab. But it remains an important part of the puzzle of Egypt's new politics. The eruption of Israel-Hamas fighting was rightly seen as the first real test of Morsi and his elected Egyptian Islamist government. Many thought he would seize the moment to escalate against Israel, tear up the Camp David Treaty, engage in reckless rhetoric to demonstrate radical credentials, or reveal the true extremism lurking behind a mask of moderation. Instead, he behaved as every bit the pragmatic statesman. It is too soon to know whether the ceasefire will hold, the Gaza blockade will be lifted, or precisely what responsibilities Egypt has now taken on as guarantor of the agreement. But in the short term, Egypt emerged looking a more effective diplomatic player than at any time in a decade of the long twilight of the Mubarak regime or the chaotic post-revolutionary transition. 

He did so by positioning Egypt as an important mediator between Hamas and Israel and winning the confidence of Washington while also expressing pro-Palestinian views in line with those of the Egyptian and broader Arab public. Moves such as sending his prime minister to Gaza to express sympathy won political points even as he pursued a cautious, fairly traditional set of Egyptian interests toward Gaza. The Muslim Brotherhood helped keep the streets relatively quiet, whatever its members felt privately, giving him space for diplomacy. And he showed that he could use both the Muslim Brotherhood's ties to Hamas and the Egyptian intelligence service's ties to Israel to become an effective broker. In short, on the regional stage Morsi's Egypt proved the adept practitioner of Realpolitik inflected with tactical appeals to Arab and Islamic identity. This is the role which Erdogan's Turkey played so effectively over the past few years -- and which Morsi's Egypt is now bidding to fill.

Had Morsi stopped there, there would have been a clear narrative of a pragmatic, effective new Egyptian government. But of course, he did not. Instead, he made his unprecedented bid to centralize power in the office of the presidency, a bold Calvinball move redefining the rules of the game in mid-play which immediately ignited a new political crisis. Opposition politicians ceased their bickering for the moment to unify around a denunciation of the power grab. A larger than normal crowd descended on Tahrir and protest broke out around the country, along with depressingly familiary violent clashes between security forces and the opposition. Meanwhile, Muslim Brotherhood supporters mobilized in counter-demonstrations. Rumors ran wild about coming moves to prosecute political enemies, purge the media, and more.    

A case could have been made for Morsi's constitutional decree had he not pushed it too far. The judiciary has played an erratic, unpredictable, and politicized role throughout the transition, with its controversial decisions such as the dissolution of parliament. Its Calvinball approach to the rules, in the absence of either a constitution or a political consensus, introduced enormous and unnecessary uncertainty into the transition and badly undermined the legitimacy of the process. Morsi was not the only one who despaired of Cairo's political polarization and institutional gridlock. But none of that can justify his assertion of executive immunity from oversight or accountability, declaring his decisions "final and binding and cannot be appealed in any way or to any entity." And then there was Article VI, asserting the power to do literally anything "to protect the country and the goals of the revolution." That Morsi was elected has nothing to do with his attempt to place himself above the law. Nor does the expiration date of his extraordinary powers (after parliamentary elections and the constitutional referendum) reassure in the slightest. 

The pushback which is now taking place on the streets and in the courthouse and in the public sphere is exactly what needs to happen, even if the increasing turn toward existential opposition to the Muslim Brotherhood rather than toward specific political issues is disturbing. For all the polarization and ugliness of the street clashes, this intense engagement with politics and unwillingness to accept Morsi's diktat are positive signs of the vitality of Egypt's vibrant, ornery, and contentious new politics. It shows yet again that there is no going back to the old patterns of Egyptian or Arab politics. The dissolution of parliament, failure to produce a constitution, and politicization of the judiciary has left Egyptians with no legitimate institutional channels by which to contest executive power. The ability of other political forces to push back through such extra-institutional means is crucial to maintaining de facto checks and balances on the president. De jure would be better.  

Both Morsi and his rivals seem determined to push this fight toward what could be a truly ugly conflict rather than to seek the grounds for compromise. There is such a compromise to be had, however. Morsi has to back away from his claims of executive immunity, but the judiciary and other power centers need to stop blocking any political development. Morsi has to accept the urgent need for yet another try at putting together an inclusive and representative constitutional assembly, abandoning once and for all the odd notion that an electoral majority should entitle Islamists to majoritarian dominance of the drafting of a foundational document. But his opponents need to be willing to actually sit on such an assembly rather than quitting at the first sign of trouble to register their symbolic dissent. The cycle of violent repression of protests has to stop, with the security forces showing more restraint and protesters doing more to police their own ranks. I think it's important (though I suspect I am in a distinct minority on this) to get a legitimate parliament back in place -- whether by reinstating the dissolved one in its entirety, holding by-elections for the seats deemed unconstitutional, or holding entirely new elections.   

Overall, at its core, both the Brotherhood and its opponents need to take steps to break the cycle of polarization and start to somehow build the common ground on which a successful transition will depend. They have not been good at this throughout the transition; in particular, I still believe that the Brotherhood blundered badly in breaking its promise to not seek the presidency, and that both Egypt and the Brotherhood would have been better off had they kept their word. There are a million other poor decisions by all actors along the way. But there's no going back to fix those mistakes, only the opportunity for both sides to seize this crisis to change direction. I don't think anyone is optimistic that such an accord will be reached. We will see this week whether either side wants to find one and is willing to take the first steps to repair the deep ruptures in Egypt's transitional politics.  

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