Egypt's politics since the 2011 revolution has consistently combined
bare-knuckled combat with abstruse legal maneuvering, as if WWE wrestlers were
attempting to operate parts of their contest within the framework of a Japanese
tea ceremony. There are four major differences. First, wrestling matches and
tea ceremonies last minutes and hours, but Egypt's legal-political battles
began decades ago and show no hint of dénouement. Second, the Egyptian
struggles are completely unscripted and unpredictable. Third, they matter.
Fourth, their participants are focused not only on the moment but also steeped
historical antecedents of today's struggles -- it is impossible, for instance,
to hear a discussion of the judiciary that does not refer to an infamous
judicial purge in 1969.
In order to assist befuddled observers of Egyptian politics, we have
assembled this brief guide explaining the current state of play.
1. Legislative authority
Let us begin with the most abstract dispute, but also one with very
significant implications: who has legislative authority before the lower house
of the parliament is elected?
The Shura Council, the parliament's upper house, is clearly assigned such
legislative authority in the 2012 constitution. Or at least its members think
its authority is clear.
Knowing that it might take a while to elect a lower house (the last one
was dissolved in June 2012), the authors of the 2012 constitution allowed the
upper house alone to exercise what would normally be the joint legislative
authority of the two chambers in such situations. In fact, the constitution's
article 131 does not even describe such an authority as restricted to urgent
matters (as is the case when the executive branch is granted emergency
legislative authority -- and some Arab courts have been surprisingly assertive
in reviewing whether executive action really was needed in such cases). And just
to prevent any ambiguity, article 230 also adds a specific authorization to the
general one of article 131; it makes clear that the upper house (the Shura
Council) has "full authority of legislating" until the lower house is elected.
So why is there any debate? Because in normal times, the Shura Council
cannot initiate legislation, and some experts claim that restriction still
operates. Article 101 restricts the authority to initiate legislation to the
president, the cabinet, and members of the lower house. So some in the
opposition, and even within the cabinet itself, have claimed that the Shura
Council is now only allowed to work on laws submitted to it by those other
actors. But the Shura Council rejects this reading and has been pursuing its
own legislative agenda -- most notably with a new judicial law, as we shall
Unsurprisingly, the issue has already gone to court, as some activists
have tried to challenge the Shura Council's actions.
And there is an even deeper dispute underlying this one: the Shura
Council itself is also being challenged. It was elected in a system similar to
that ruled unconstitutional by the Supreme Constitutional Court (SCC) for the
disbanded lower house, so a similar case challenging the upper house's
constitutionality is on the SCC's docket. (Indeed, speculation is rife that the
upper house was attempting to rush the judicial law specifically in order to
force a change in the SCC's composition and prevent that court from dissolving
the Shura Council first). The 2012 constitution seemed to do a fairly good job
of immunizing the Shura Council from constitutional challenge, but Egypt's
legal order has already provided more than its share of surprises. There have been some opposition voices that
have even hinted at challenging the constitutionality of the 2012 constitution,
and the legality of the Constituent Assembly that wrote it is also under
litigation. The SCC could accept such challenges, but it seems inclined not to,
since it has already begun issuing judgments clearly accepting the
authoritative nature of the 2012 document.
Finally, even if the Shura Council dodges these judicial bullets, its
enactments must pass a political hurdle: all its laws must be submitted to the
incoming lower house when that body is finally elected. Inaction by that
chamber would effectively allow the Shura Council's laws to continue operating.
But if the lower house rejects any of them, that decision takes retroactive
effect (unless the lower house decides otherwise), leading to more legal uncertainty.
2. The Judicial Law
Egypt's judiciary has enjoyed considerable autonomy at times and it prides
itself on a strong professional tradition (for more on Egypt's maze of judicial
structures click here). But Egypt's authoritarian rulers have encroached upon judicial
independence; the low water mark came in 1969 in a series of steps that purged
leading judges and subordinated all judicial structures to the executive
branch. Under the presidencies of Anwar Sadat and Hosni Mubarak, the most
egregious of those measures were reversed but judicial reformers and their
allies have been pushing for decades for the last vestiges of executive
interference to be removed, primarily through writing a comprehensive new law
of judicial organization.
Some new law is clearly needed after efforts to introduce one fell
through in 2011, and since the 2012 constitution contains articles on the
judiciary that are yet to be
implemented. But it still came as a surprise this year when some Islamist
parties proposed draft amendments to reform the law in the Shura Council.
Most striking among the proposals was al-Wasat's amendments that would in part lower
the retirement age from 70 to 60 years and introduce a uniform salary structure
for all judicial organs. These
reforms did not come out of the blue -- indeed judicial reformers have called
for such moves to reverse some subtle ways the old regime manipulated the
judiciary. Mubarak had raised the ceiling for retirement gradually over the past two
decades from 60 to 70 in an alleged effort to co-opt the judiciary as well as
to extend the tenure of individual judges. And critics charged that the salary structure reflected attempts during
the Mubarak years to co-opt specific bodies.
But whatever the merits of these steps over the long run, rushing them
into implementation now immediately prompted charges of an Islamist attempt
to instigate a 1969 style "massacre of the judges." And this may be one time the histrionic tone
of Egypt's histrionic debates may be justified. Indeed the amendment would lead to the sudden
retirement of an estimated 3,000 judges (including most in senior positions) and allow hiring a new generation of judges in an
environment in which security vetting can no longer be used against Islamists. The single salary
structure seemed designed to pit judges against each other -- for all their collective outrage against
the country's elected leadership, judges on various judicial bodies still show
some sings of rivalry.
Seemingly caught off-guard with the
introduction of the amendments and the fierce backlash, the presidency promised
that it would freeze the debate over the law. In an effort to calm the
situation President Mohamed Morsi and the Supreme
have agreed to hold a "National Conference on Justice," to debate needed
amendments and arrive at a consensus. It is unclear what the effort would
yield. The first conference of the same type was held in 1986 and led to a
number of recommendations that were largely ignored by the executive but have lived in in the judiciary's
collective memory. A crisis seems to have been averted for now, but suspicions remain high
between the presidency and the judiciary.
3. The Prosecutor General
Mubarak's last prosecutor general, Abdel Meguid Mahmoud, sparked
revolutionary ire and was an early target for President Morsi. There was only
one problem -- Morsi had no legal power to sack him. Morsi tried first to
shuffle Mahmoud off by appointing him ambassador to the Vatican but Mahmoud not
only rejected the offer but used it to position himself as a champion against
the so-called "Brotherhoodization" of the state. A month later Morsi
moved more audaciously: claiming sovereign powers, he issued a constitutional
declaration dismissing Mahmoud, allowed himself the right to appoint the
successor, and placed the matter beyond judicial review.
But Morsi's appointment was struck down by a Cairo appeals court in late
March in response to an appeal filed by Mahmoud. Most importantly, the court
ruling curiously stated that not only Morsi's appointment was invalid but
that all of the consequences of said appointment were also invalid, opening the
door for people to question the legal standing of the decisions taken by a very
active public prosecutor since his appointment in November 2012. The court's
decision placed pressure on the presidency to resolve the situation, but things
have only been more complicated since.
Not quite ready to lose perhaps the most strategically placed legal job
in the country, the Morsi appointed public prosecutor filed an appeal
questioning the court's decision to dismiss him (since ironically enough he
argues that he cannot be dismissed against his will). Abdallah has used a
classic delaying technique in Egyptian courts (demanding that the judges be
recused) and the dueling prosecutors have managed to tie each other in legal
knots. Abadallah's appeal is now postponed to late May and the court decision
to reinstate the old public prosecutor cannot be enforced until Abadallah's
appeal is settled.
A clear compromise is possible -- to have Abdallah step down, Mahmoud
relinquish his claim, and the Supreme Judicial Council select a new figure in
accordance with the provisions of the 2012 constitution. But even if such an
outcome is eventually reached, Egyptians are likely to feel overcome by waves
of bluster and legal maneuvers before it happens.
4. The Sukuk Law
Thus far the Sukuk Law is the only "success story" coming out of the
beleaguered Shura Council -- in fact, according to majority leader Essam
El-Erian it is the first complete (and for now unchallenged) law passed since
the council was granted legislative authority five months ago.
A Sakk (singular of Sukuk)
is a non-interest bearing Islamic bond; the Egyptian government wishes to use
the device to help fund its debt. The Brotherhood finds sukuk ideologically
attractive since they are sharia-compliant in that they offer its holders a
fixed share of profits instead of a fixed interest payment. But the opposition
to the seemingly sharia compliant Sukuk came from unlikely sources: Al-Azhar
and the constitutional text that the Brotherhood helped write.
The first draft version of the law was finalized by the ministry of
finance and was sent by Morsi to Al-Azhar for review in late December 2012.
Al-Azhar's top research body first stepped in, holding an emergency meeting on
New Year's Day to express its strong disapproval of the law and of the
government's attempt to label them as "Islamic" bonds. A few days later
al-Azhar's senior council of scholars (the body that the constitution
designated as the one whose opinion is to be solicited) echoed the same
sentiments. Al-Azhar expressed reservations by blending religious and
nationalistic reasoning (arguing along with Morsi's opposition that the bonds
could lead to the selling off of state assets to unknown investors).
The Shura Council then took up the issue under its interim legislative
role, inviting al-Azhar's representatives to a committee hearing (an offer that
the institution felt was not commensurate with its august new constitutional
role). So when the council passed the law, the sheikh of al-Azhar intervened to
insist that something called "sukuk" needed al-Azhar's review for its
sharia compliance. Salafis, historically dubious of al-Azhar's authority but
anxious to grasp at any device to pose as truer champions of the sharia than
the Brotherhood, endorsed the call as consistent with the constitution -- a
step akin to Protestant leaders insisting the Pope be consulted on a matter of
Christian doctrine. Bowing to the constitutional arguments and political
pressure, Morsi sent the law back to al-Azhar for review.
The controversy and the president's gesture allowed al-Azhar not only to
leverage its constitutional privileges but to drive the process and make its
legally advisory opinion politically unavoidable. The final version of the law
was finally approved on April 30 but only after a tense standoff between Azhari
scholars and Freedom and Justice Party members of parliament who were openly questioning al-Azhar's right in dictating economic policy. Ironically, the debate
did not center on sharia but rather whether or not the state can issue Sukuk
for public state-owned enterprises.
The final Sukuk law was signed into law by Morsi on May 8 and Sukuk
projects will be open for bidding soon. But a permanent sharia committee will be set up that must approve
the sharia compliance of every new Sakk issued, opening the door for possible
future battles regarding the religious institution's role in economic policy.
5. Election law
Egypt's legal knots may begin to be untied when a lower house of
parliament is finally elected. And indeed, article 229 of the constitution
suggests that such an election should already have started over two months ago.
But that same constitution also worked so hard to ensure to place parliamentary
elections beyond legal challenge that it may have delayed them for most of the
rest of the year.
Since 1985, Egypt's SCC has four times struck down a parliamentary
election law after a parliament was elected. The most recent dissolution -- in
2012 -- was a harsh blow for the Islamists who dominated the body (and guided
the 2012 constitution to ratification). Accordingly, they took the nearly
unprecedented step of requiring the SCC to review the law for constitutionality
before it could be promulgated. The only time such a device was used in the
past was in the March 2011 constitutional declaration for presidential
elections, and the SCC at that time required the Supreme Council of the Armed
Forces (SCAF) -- which then held interim legislative authority -- to make some
changes in its January 2012 draft on the subject.
Copying the device for the parliamentary election law brought unexpected
results. The Shura Council passed a law as required and the president dutifully
sent it off to the SCC for review. The SCC found a number of flaws, some minor
but others quite significant (such as the unequal districted size --
gerrymandering and imbalances in representation have been deeply engrained in
Egyptian electoral practice for nearly a century but somehow have escaped legal
scrutiny). The council took note of the SCC's objections and passed a further
version, confident that this one would be immune to challenge.
Opponents charged that the repairs were merely cosmetic and that the new
draft should be sent back to the SCC. Mindful that the SCAF had successfully
avoided a second review, majority parliamentarians felt that they had precedent
on their side and that the second draft would be the final one. But an
administrative court ruled otherwise, and Morsi and the Shura Council
reluctantly called on the SCC to rule again. But they did not do so right away
-- realizing that the amendments to the law would have to satisfy the SCC's
scrutiny rather than the less discriminating eye of the parliament, the Shura
Council set to work on a third version -- and it is that version that is now
before the SCC.
Rejection seems possible and even likely. Part of the problem is the
nature of the SCC's earlier ruling. Asked whether the first draft was constitutional,
the SCC said no and provided its reasoning. The court made clear that some
inequality in representation among governorates was tolerable in order to
ensure that smaller areas were represented, but it insisted the apportionment
in the draft was simply too unequal to countenance. While making clear what was
not constitutional, the SCC
did not have the opportunity to explain what threshold it would use to
determine what is constitutional. It seems very possible that the law may bounce back and
forth between the Shura Council and the SCC one or two more times before
Egyptians are finally summoned to vote, thus adding ping pong to wrestling and
a tea ceremony to the repertoire of Egyptian political struggles.
Nathan J. Brown is professor
of political science and international affairs at the George Washington
University, nonresident senior associate at the Carnegie Endowment for
International Peace, and author of When
Victory is Not an Option: Islamist Movements in Arab Politics (Cornell
University Press, 2012).
Mokhtar Awad is a junior
fellow in the Middle East program at the Carnegie Endowment for International
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