Morsi-military standoff: How big a blow to Egypt?
While Egypt’s transition has been on uncertain legal footing from the beginning, the confrontation between President Morsi and the military and judiciary could upend Egypt's legal order.
Egypt’s lower house of parliament briefly convened today, defying a court ruling and a military order that had declared the body dissolved and deepening the legal ambiguity of the power struggle between Egypt’s new president and the military. In a session that lasted just minutes, the members of parliament referred the case to the country’s highest court of appeals.
The parliament’s meeting was a response to an executive order from President Mohamed Morsi, who two days ago canceled a directive by the then-ruling military council to dissolve the parliament. Hours after today's parliament session, the Supreme Constitutional Court retaliated, releasing a statement rejecting Mr. Morsi's order to reconvene the parliament. Morsi's spokesman, in turn, declared the court's statement without jurisdiction and therefore null.
While Mr. Morsi has taken care to frame his move as a challenge to the military, and not an attack on the judiciary, many perceive it as an affront to the rule of law. Others see it as a justifiable move by a popularly elected president in the face of a politicized court.
The military’s order was based on a ruling by the Supreme Constitutional Court, which found that Egypt’s parliament should be dissolved because party members should not have been allowed to contest seats reserved for independents in elections.
While Egypt’s transition has at times been on uncertain legal footing from the beginning, the current confrontation pushes it to new depths.
Morsi’s move to reconvene the parliament leaves Egypt’s legal order “in a complete state of disarray,” says Nathan Brown, a professor at George Washington University. “You've got a parliament that will be meeting now, and might even be passing laws; you've got courts that will probably refuse to enforce those laws. You've got a military that claims it has a legislative role, and a president who says the basis for that legislative role, the supplemental constitutional declaration, he doesn’t acknowledge … you’ve got a completely chaotic situation.”
Dr. Brown says some uncertainty early in the transition was politically healthy because it reassured Egyptians that no one had a monopoly on power. But "at this point, it’s gone beyond healthy uncertainty to complete confusion that is corroding some of the basic institutions of Egyptian legal and political life,” he says.
The parliament, which is dominated by the Muslim Brotherhood’s Freedom and Justice Party, met today despite a warning yesterday from the Supreme Council of the Armed Forces (SCAF), which ruled Egypt after the ouster of Hosni Mubarak until the end of last month, when Morsi took power.
In its warning, the SCAF emphasized the importance of the law and the constitution, and said it was confident that “all state institutions will respect constitutional decrees.” The Supreme Constitutional Court also issued its own notice, saying that its decisions were final, cannot be appealed, and are “binding on all authorities of the state.”
Many in Egypt saw the court’s ruling on the parliament as coming from a politicized court whose members were appointed by Mr. Mubarak. The swiftness with which the court rendered the verdict, and its insistence that the entire assembly be dissolved rather than only the one-third of the members who won independent seats, heightened suspicion.
Shortly after the verdict, the military council declared the parliament dissolved, then amended Egypt’s interim constitution to claim legislative power for itself until a new parliament was elected. It also limited the powers of the incoming president and gave itself veto power in the drafting of a new constitution.
Morsi’s executive order did not contradict the court’s ruling, but did rescind the military’s decree that parliament be dissolved in order to implement it. His office insists he respects the rule of law, and is simply disagreeing with the military’s execution of the ruling. In an acknowledgment of the court's ruling, his executive order called for new elections 60 days after a new constitution is written. But it is unclear whether any actions taken by the reassembled parliament would survive challenges in court.
Omar Ashour, a professor of Middle East politics at the University of Exeter, says Morsi’s decision is a step forward for the democratic transition because an elected president asserted power over an unelected council of generals in the face of a politicized court.
Morsi did not ignore the court’s decision, but simply postponed the implementation of it until after a constitution is written, says Dr. Ashour. That helps resolve uncertainty about the fate of the current constitutional assembly, which was appointed by the parliament before it was dissolved, but has not yet finished its work, says Ashour. “He was saying ‘fine, we keep the parliament until the constitution is written, and after that it gets dissolved.’ It’s an interpretation of the verdict as opposed to a direct challenge to it.”
But Brown, who sees the current struggle as a clash between the forces of majority rule and some institutions of the state, says Morsi’s move could provoke a broad confrontation with Egypt’s judiciary.
“What they may be doing is in a sense issuing a call to arms for the whole Egyptian judiciary,” he said. “[Judicial authorities] are basically saying, this is no longer a struggle over a specific legal interpretation. This is now a struggle for the autonomy and the authority of the judicial system in Egypt. My guess is most judges will rally around that.”
And they may have ample opportunity to do so. Next week, the Supreme Constitutional Court is due to hear cases challenging Morsi’s executive decision to reconvene the parliament. The same court will also hear a case proposing the dissolution of Eygpt’s upper house of parliament for the same reasons it declared the lower house invalid. An administrative court is scheduled to hear a case Sept. 4 on the constitutional assembly. It could dissolve the body, giving the military an excuse to step in and name a new one. And a case challenging the very existence of the Brotherhood as a legal organization is also due in court in September.