The rush to shallow judgment on Egypt
Hdeel Abdelhady, Saturday 20 Jul 2013
What just happened in Egypt? A military coup? A second revolution? A blow to democracy?

On airwaves and news pages, judgments have been swift, numerous, and too focused on definitions. The Merriam Webster online dictionaryreportedthat searches for “coup d'état" spiked on July 4 and remained high that week, in response to coverage of Egypt.

Political actors and commentators have concluded hastily (and some conveniently) that Morsi’s removal has undermined democracy, legitimacy, and legality in Egypt. These conclusions, built on textbookish definitions, offer an incomplete picture. Fuller consideration of what happened in Egypt – as well aswhyevents unfolded as they did – indicates that the injuries to democracy, legitimacy, and legality might not be as clear as prevailing opinions suggest.

The ballot box does not equal democracy

Hosni Mubarak and Mohammed Morsi were removed from office in exactly the same way. Millions took to the streets, the army intervened, and the president was removed. Because Morsi was fairly elected, his removal with military assistance was a blow to “democracy.” The underlying factual distinction is correct, but the conclusion is flawed.

The ballot box is neither a guarantor of democracy nor a conclusive indicator of its existence. And democracy is not a single or periodic event, but an ongoing process. Even those who rely on dictionaries to draw conclusions should know this. Merriam Websterdefinesdemocracy primarily as(a)“government by the people;especially:rule of the majority” and(b)“a government in which the supreme power isvestedin the people and exercised by them directly or indirectly through a system of representationusuallyinvolving periodically held freeelections.”

Morsi was hardly democratic in his first year. Rather than exercise his legitimately gained power for and in accordance with the purposes it was given, Morsi consolidated power to advance a narrow political and ideological agenda that lacked public consent, or knowledge. At times, Egypt under Morsi looked more like the “Muslim Brotherhood Inc. doing business as Egypt” than a republic. Morsi’s fair election gave him a mandate to govern, not carte blanche to refashion the presidency and the state to fit narrow objectives. His actions as president contravened democratic principles.

Morsi’s “constitutional legitimacy”

In his final days as president, Morsi repeatedly defended his “constitutional legitimacy.” His position was debatable, as the legal pedigree of Morsi’s claimed legitimacy – the December 2012 Constitution – was itself in doubt. In early June 2013, the Supreme Constitutional Court (SCC)ruled, after months of consideration, that the constituent assembly that drafted the 2012 Constitution was invalid. The ruling cast a cloud over Morsi’s constitutional legitimacy, as its basis was the fruit of a poisonous tree. That the December 2012 constitution was drafted mostly by Morsi’s allies and bulldozed through the referendum process over the objections of diverse voices further tainted Morsi’s constitutional standing.

Legality of military intervention

The conclusion that Morsi’s military-assisted removal was a violation of law assumes that the military had no legal basis to act or that alternative procedures for his removal were available but not exhausted. Both assumptions are flawed. The military’s intervention could be justified on affirmative constitutional grounds or under the legal doctrine of necessity.

Article 194 of the now suspended December 2012 Constitution (notably in the section on executive authority) provided, without delineation, that: “The Armed Forces shall belong to the people. Their duty is to protect the country, and preserve its security and territories.” In principle, the military acted pursuant to its constitutional authority when it effected the president’s removal in the national interest and in response to the demands of millions of “the people.”

Alternatively, the military’s action was justified by necessity, an operative doctrine in Egyptian law (and Islamic law, international law, and other national legal systems in various contexts) that justifies or excuses otherwise illegal or extralegal acts precipitated by exceptional circumstances. Events leading to Morsi’s removal were indeed extraordinary. Millions were in the streets. Civil disobedience and general strikes were likely. The country was increasingly fracturing along ideological and sectarian lines. No civilian constitutional procedures were available to remove Morsi or check his power. And no political solution was in sight.

The December 2012 Constitution provided for the involuntary removal of a sitting president only through impeachment by the lower house of Parliament, but the lower house had been dissolved by court order on June 14, 2012. Thus, parliamentary removal of the president was precluded.

As to political conciliation, Morsi impeded that option. Morsi had ample notice that a petition for his removal was gaining momentum and that mass protests were planned for the first anniversary of his term.Reportedly, the military, after consultation with political forces, presented Morsi with options for diffusing the mounting crisis; including appointing a new cabinet or calling a referendum on the continuation of his presidency. Morsi rejected the proposals and offered no roadmap of his own, except after the window for conciliation had closed.

Without Morsi’s consent and in the absence of the lower house of Parliament, neither a cabinet change nor a referendum was possible. As a result, all civilian constitutional processes for challenging the president’s authority or tenure were foreclosed. Constitutionally, only the lower house of Parliament could have forced the resignation of the prime minister (and cabinet) through a no confidence procedure. Only Morsi could have initiated a referendum on his presidency under the 2012 Constitution. In the absence of constitutional checks on presidential power, it was up to the former president to exercise power wisely. By refusing to compromise in the face of unfavorable odds, Morsi sealed his own fate.

In the political arena, facts and legal arguments will be cherry picked to support a desired outcome. But definitional debates that elevate semantics above substance only simplify the complex, and tend to mislead. Going forward, a fuller consideration of events will yield better lessons. Among the many lessons of 3 July and the prior transitional period is one for Egypt’s current and future presidents: An excess of power, exercised uncharitably, without self-restraint, and to the detriment of checks and balances, is a recipe for downfall. Incumbent beware.

*Hdeel Abdelhady is a Washington, DC based lawyer and an occasional contributor to various publications on matters of law, development, and politics.