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The real revolution underway in Egypt

President Morsi’s power grab sets a hazardous precedent with potentially long-term consequences for the Egyptian state

Hdeel Abdelhady , Thursday 20 Dec 2012
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Views: 4543

Fewer than six months into his presidency, President Morsi has taken swift and successive steps to consolidate his power at the expense of Egypt’s executive, legislative, and judicial institutions and military neutrality. His controversial and now partially rescinded November 22 decree is just the latest in a string of raw power maneuvers that challenge the basic structure of the Egyptian state.

The real revolution is now underway in Egypt, and its epicenter is the Presidential Palace, not Tahrir Square.

In July, less than ten days after swearing the constitutional oath of office to “uphold the republican system with loyalty” and “respect the Constitution and law,” Morsi recalled the lower house of parliament in defiance of an earlier court order mandating its dissolution. Facing push back from the courts, Morsi backed off, but not for long. In an August 2012 decree, Morsi filled the void by claiming legislative power for himself.

By the same decree, he “retired” the head of the Supreme Council of the Armed Forces, Hussein Tantawi, and the army’s chief of staff, Sami Anan, and replaced the heads of Egypt’s other military branches. The removal of Tantawi and Anan was met with popular approval. But the military’s top brass was conspicuously silent, suggesting that a deal had been struck in advance.

The strategy is paying off. In response to the crisis triggered by Morsi’s controversial November 22 decree, the military—silent on political matters since Morsi’s election—firmly backed Morsi’s call for “dialogue” with opposition forces. The following day, Morsi ordered the military to “maintain security” and authorized military arrests of civilians until after results of the December 15 constitutional referendum are released.

In October and November, the President set his sights directly on the judiciary. On October 11, he announced the dismissal of Egypt’s deservedly unpopular prosecutor general, a member of the judiciary under Egyptian law. Supported by judges and lawyers, the prosecutor general resisted, rightly pointing out that the president lacked legal authority to remove a member of the judiciary from office. Again Morsi retreated, temporarily.

On November 22, Morsi summarily dismissed the prosecutor general and installed his replacement. Notably, the dismissal followed news reports, dated November 12 and October 22, indicating that the prosecutor general had ordered an investigation of alleged fraud in the presidential election won by Morsi. The same day, Morsi purported to immunize from judicial scrutiny himself and the constituent assembly charged with drafting Egypt’s new constitution.

The President’s actions contravene Egypt’s current constitution, which clearly confines the president to executive powers, vests legislative authority in the People’s Assembly, and enshrines the judiciary’s independence. Recognizing this, the President has attempted to justify his actions by falsely claiming revolutionary authority that, by definition, is unbounded by the constitution, other law, or time.

The preamble to the November 22 decree declares the President the guardian of the January 25 “revolution” with responsibility—and therefore the power—to carry out its goals. The premise is sweeping, as it ascribes legal significance to subjective political concepts, elevates politics above the law, and gives the President ultimate discretion to define the goals of January 25and act as he sees fit to carry them out, until he determines they have been met. Morsi’s claim to revolutionary authority is illusory and dangerous.

The events leading to and following Hosni Mubarak’s removal from office, while politically monumental, were not a revolution. Tahrir Square’s protagonists called for the removal of specific government officials, government accountability, and greater individual rights, subject to existing or properly adopted new law. In other words, Tahrir Square altered the balance of power between the people and the state, not among state institutions.

The period between Mubarak’s fall and Morsi’s election was more interregnum than post-revolutionary. Important post-Mubarak events, such as the 2011 constitutional referendum, the setting of elections procedures, and presidential and parliamentary elections occurred within Egypt’s constitutional framework. Even today, those challenging Morsi’s power grabs are doing so on established constitutional grounds.

The present scenario contrasts starkly with events in Egypt during and following the July 23 Revolution of 1952, when the king was deposed, the republic was declared, and revolutionary authority was created for the revolutionaries known as the Free Officers.

The labeling of January 25 aside, Morsi’s claim to revolutionary authority poses real and foreseeable dangers. For example, Egypt’s Supreme Constitutional Court has yet to rule on the legality of the constituent assembly that prepared the draft constitution now being voted on by the public. If the Court invalidates the constituent assembly (and with it the draft constitution and referendum now in progress), will the President attempt to override the Court in the name of the revolution? The scenario is highly likely and, if it materializes, would dwarf the crisis sparked by the November 22 decree.

President Morsi’s actions set a hazardous precedent with potentially long-term consequences for the state. In 2011 Egypt was spared Libya and Syria post-uprising scenarios precisely because its state institutions were strong. It is both easy and comforting to think it too improbable that Egypt could someday resemble Libya or Syria to the extent that state institutions will be gutted or rigged to consolidate power in one individual or branch of government. But it also was improbable that Hosni Mubarak would be removed from office in just 18 days and succeeded by Mohamed Morsi.

*Hdeel Abdelhady is a Washington, D.C.-based Egyptian-American lawyer specializing in international law and business and is an advocate for the rule of law in Egypt.

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Andres
10-06-2013 07:19am
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Well explained
Any more articles by this lawyer on Egypt? I agree with Hala that this is still relevant especially after the SCC decisions just this month. Looking for more like this.
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Hala
17-04-2013 11:46pm
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Still relevant
One of the best analyses of the legal situation and a very relevant article for today. Please publish more like this.
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Dee
22-12-2012 12:50am
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One thing that I don't understand why it hasn't happened yet....
it's my understanding that all senior judges in Egypt were appointed by Mubarak under the old regime. Based on this, with the oust of Mubarak and his old regime, why has there not yet been a 'reshuffle' of all senior judges in Egypt? Maybe then this never-ending ping-pong battle between the executive and the judiciary will be put to rest!
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Hamdeen Badawi
20-12-2012 10:34pm
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Bankrupt judges
It was these bankrupt judges that allowed Mubarak to bask in his tyranny for thirty years. And now they have the shamelessness to speak about the rule of law.
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Field
20-12-2012 07:25pm
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power grab
What Morsi did was against the Judiciary and could indeed be deemed as a very non-democratic maneuver.
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Sam
20-12-2012 03:20pm
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The President was elected by the people.
The president was elected by the people, he didn't grab power. It is the opposition that refuses to play by the rules of democracy. Calling Muhammed Mursi power-grabber is therefore an insult to millions of Egyptians who elected him. It is also an insult to common sense and simple honesty.
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Nader Masri
20-12-2012 10:31pm
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Mursi did what he had to do
Mursi had to preempt a coup by Mubarak's CC judges. The rest is red herrings.
Read!
20-12-2012 08:31pm
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elected president, that is for one of 3 branches of government!
I am sick and tiered of this lazy reasoning. It seems to me you can read English, so I would go back to the article above and read it carefully. Mursi was elected president (presidents have limited powers, and in Egypt's case he was elected under the powers delimited in the constitutional decree issued by scaf last year) Still that doesn't mean he had the right to overtake the other two branches of government. Democracy doesn't mean you elect a presidnet once then he gets to do whatever he wants to consolidate all government into his (or his master's) grip.
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