There have been two pillars of the Mubarak's brutal dictatorial regime backed by the West for over 30 years. Both of these institutions remain relatively popular with the Egyptian people, mainly based on real achievements they garnered prior to Mubarak, and the carefully cultivated "independent" image the regime created for them. In reality, however, both were thoroughly corrupted by the ruling elite so that they posed no threat to Mubarak's regime prior to the 2011 uprising.

Most people are familiar with the first one: The Egyptian armed forces (Military and Police). Mubarak, after all, was a military man himself and kept riding on the glories of the 1973 war as long as he could. The second, Egypt's Judiciary, I find, is a total mystery to most Americans and probably the International community in general. But it has quietly been the most crucial actor in the present crisis.

Since I studied Egyptian government years ago while living in Cairo, I thought I would shed some light on the matter:

The Egyptian Judiciary has a glorious and progressive history. It has its roots in the early democracy period of Egypt following the fall of the Ottoman Empire. It matured under the Nasser government and became truly independent under Sadat. It was probably the best example in the world of an Islamic country balancing non-religious civil and election justice with religious based family and decency laws.

The Egyptian Judiciary

Without going into too much boring detail, the court system is basically made up of three entities. The supreme court, various other regional and special courts, and most importantly the "general assembly". The GA is essentially a representative body of the Egyptian bar association. Every dues paying bar member has a right to be on the GA. All appointments to higher courts must be approved by the GA, even if nominated by the President.

The Supreme Constitutional Court is made up of 10 members plus a chairman who are approved by the GA and serve in rough order of physical-age seniority. The SCC has the power to review any laws and review any disputes or decrees in the country. Marbury versus Madison was built into this court from the beginning. In the 70's and 80's the court made a number of remarkable rulings such as requiring the state to hold democratic elections "consistent with International democratic standards", opining that Egyptian laws must observe UN's Universal Declaration of Human Rights, due process and status of women.

The reality under Mubarak

What you've read so far is all theory at this point. It frankly looks fantastic on paper, but the reality is something else entirely. To begin with, consider the fact that this same judiciary became a total rubberstamp for the Mubarak regime, to the detriment of itself and the country. Time after time, Mubarak "rules" would be pushed through and approved with not even a peep from the court. When the President wanted to give itself the power to appoint the chief justice, there was no resistance. When Mubarak took away the court's power to oversee election procedures, the court issued an advisory opinion supporting it. The court also supported Mubarak's "emergency terrorism" law that allows anyone to be tried by military courts by presidential decree. This last part, essentially ceding major powers to the executive, clearly indicates the loss of the SCC's independence.

The GA lost all meaningful powers in practice. The GA members do not even have the right to speak during their annual June meeting unless allowed by the chair. Their "approvals" of the higher court appointments come in the form of receiving a pre-filled ballot of candidates one of whom they must choose, or they are issued a monetary fine.

Furthermore Mubarak's brutal security apparatus controlled the court's appointments and memberships. Problematic GA members found themselves pressured to retire, or their law licenses revoked by Mubarak funded state law schools. It was not a club any kind of "dissident" was allowed in anymore.

Mubarak appointed 9 out of the 10 members of the current court, including the currently installed President Mansour. Not only were they all appointed by Mubarak, they were from his particular set of loyalists all appointed after the latest mini-purge between 1998 and 2001, ostensibly to pave the way for Mubarak's son to become his successor.

SCC's power grab and opposition to the revolution

In my opinion, it was a serious mistake not dissolving this corrupt court immediately after the parliamentary elections (which the court annulled --naturally). The "Supreme Constitutional Court" has no business ruling when there is no constitution yet written. In the wake of the 2011 "revolution", the SCC claimed the power to dissolve parliaments and rule on disputes arising out of the new constitutional process. According to which law was SCC acting? The Mubarak constitution? Why is that legitimate after a revolution, where that constitution was suspended by Mubarak's own army? That's sadly a question no mainstream journalist bothered to ask.

To add insult to injury when the newly elected post-revolutionary parliament disqualified Mubarak's candidate Ahmad Shafiq from running in the 2011 presidential election, the SCC reversed that decision on the grounds that it would be undemocratic and unconstitutional to barr anybody from running. OK, fair enough. But when credible reports emerged that the army had spent a fortune to issue ID cards to all Egyptian soldiers and ordered them to vote for Shafiq, the SCC did not interfere.

Islamboly said the appeal, to be lodged on Sunday or Monday at the latest, would ask the electoral committee to suspend the election until the prosecutor-general checks a claim by a police officer that the Interior Ministry had illegally assigned 900,000 votes to Shafiq.
So a court packed with Mubarak appointed Mubarak loyalists claims (and receives) the power to interfere with the revolutionary process that overthrow Mubarak. Global security page on Mansour really puts it charitably:
After President Hosni Mubarak was deposed in 2011, a brief period of interim government followed under the rule of the Supreme Council of the Armed Forces (SCAF). Subsequent parliamentary elections led to the domination of the Muslim Brotherhood in government by early 2012. The Supreme Constitutional Court, whose membership, including Deputy Chairman Mansour, was known to hold significant ties to the previous regime of Hosni Mubarak, continually found itself at odds with the new political majority. The lower house that was elected at the end of 2011 was dissolved in mid-2012 after the Supreme Constitutional Court ruled that the election of one third of its seats had been invalid because they should have been reserved for independents without overt party affiliation. An attempt to hold election of the House of Representatives (the lower house) between April and June 2012 was blocked after the Supreme Constitutional Court found fault with the revised electoral legislation. After finally holding elections, the Muslim Brotherhood-affiliated Freedom and Justice Party (FJP) continued to be the dominant political force in the parliament and in December 2012, the new government, led by President Mohammed Morsi, drafted and passed a new constitution. On 2 June 2013, the Supreme Constitutional Court ruled that FJP dominated parliament and the group of lawmakers who had written the new constitution had not been legally elected, but it ruled the body would stay seated until new elections were held.

This effectively set up the stage for a significant political crisis, with opposition political parties demanding President Morsi resign and call new elections. This was followed by massive public protests against President Morsi's government.

Why did Morsi and his Party go along with this charade?

My guess is that this was part of the deal from the very beginning with that other pillar of power in Mubarak's regime: the military. It sounds like from all accounts, the Muslim Brotherhood essentially lost a psychological war against itself. There was so much negative propaganda and predictions of doom if the "islamists" come to power, that MB was treading very cautiously, not wanting to validate the stereotypes in any way. MB was so cautious that it was not even a major player in the revolution. It instead, chose to work closely with the Military for a more orderly transition.

It was made clear to them that the army will support the democratic process only if the two main pillars of Mubarak's regime are essentially untouched. And that's exactly what happened. The army chief Tantawi vacated the post after the revolution in favor of another Mubarak loyalist and military insider: Al-Sisi.

And that law that allowed the executive to appoint the chief justice? SCAF quietly scrapped it along with many other benefits that Mubarak's office had enjoyed during the interim period.

Mohammad Morsi, the man chosen by the people of Egypt in a free and fair election, was reduced to choosing the head of the Egyptian Judiciary (a body totally hostile to the revolution) from three choices among the SCC's own membership. That's how Mansour became the chief of the judiciary on July 1.

So Morsi/MB went along with this for reasons that I speculate were psychological. They did not believe in themselves, or perhaps thought they did not have the power to stand up to these institutions. Maybe they thought, they would just tough it out until a constitution is written that would give them real power based on majority rule. Whatever it was, it was obviously a miscalculation.

Morsi's declarations of rule by decree, "putting himself above the law"

Many Western observers and far too many progressives who are less than informed, jump on this series of decrees and say "aha! Here's clear proof he was a despot!!!". Indeed the opposition, along with the international press painted the decrees exactly as some kind of usurpation of power. But once again, they never ask: "above which law?" If they had, they would have realized that the "law" in question that Morsi is accused of putting himself "above" is the Mubarak's judiciary.

Specifically, Morsi did this after realizing the elements of the former regime do not want a new constitution to be written by the (fairly elected) MB dominated parliament. People of Egypt elected a parliament, and a constitutional committee and Mubarak's judiciary annulled them all. Mubarak's military forcefully deposes the (fairly elected) President. And that's what we're calling "people power"???

There was no way to move forward given SCC and the Military's opposition to the process.

Of course Morsi made a number of amateur mistakes. Instead of coming out and telling people that the judiciary is a relic of the former regime that does not want to respect the people's will, he opted to legitimize them further by treating them as a power. He was also painfully ignorant of basic public relations principles. Politically and tactically, this was a mistake. My only explanation is that it was part of a secret deal between the MB and armed forces (This also explains why the MB drafted constitution was so unusually generous to the Military).

Turkish foreign minister summarized it best:

Biggest mistake wasn't Morsi's

While acknowledging that Morsi had made mistakes, Davuto─člu said the worst damage to the democratization process was the Constitutional Court's decision to dissolve the Parliament, which, he explained, led Morsi to publish a decree that was publicly decried.

"The legislative power could not legislate. If it hadn't been dissolved, Morsi wouldn't have issued the decrees. Someone had to fill that vacancy and the only elected institution left was the president," Davuto─člu said.

Was this a coup?

So, when people ask me if this was a coup (I'm with Nariman on this, and believe it's undeniable that it meets the definition of the term), I pause to ask another question: With the two main pillars of the Mubarak regime still firmly in power, was this really a revolution to begin with? If it was, then this is certainly a coup that seeks to reverse the gains of that revolution. If it wasn't then, it's nothing: The US-backed military state that Egypt was, it still is.

What about the popular uprising?

It's of course hard to argue with the fact that people were unhappy with the person of Mohammad Morsi. That's the only thing we can surmise from the enormous and popular gatherings against him. Of course it was not unanimous by any means, and I'm not just talking about there being any kind of a "token" pro-Morsi sentiment. The sentiment is large (100s of 1000s in the streets yesterday) and much more geographically distributed than the anti movement.

But the number of individuals in streets is not a factor in the definition of a coup. Every coup in history had some supporters. The 1953 coup ousting the democratically elected Mossadegh in Iran also was accompanied by huge gatherings in support of the ouster. Only years later did people realize how reality differed from their own perception.

While large numbers of people can be said to want Morsi "out", there is no evidence that they wanted the Military "in." In fact, the same revolutionary youth who started this latest action, were expressed concern since the military's involvement. It is true that the Euphoria of the moment has "driven people to the arms of the military", as an agent of change as Sharif Abdel-Kouddous described it.

But this is the same military that backed and protected Hunsi Mubarak. Same one that killed hundreds of protestors and instituted virginity tests for female protestors, (and lied about them, and when confronted conducted sham investigations) during it's last ruling era. This is the same military that has killed about a dozen people in the past few days, shot a British journalist in the head, and continues to lie about it.

The army, if nothing else, seem to have done a lot more homework in public relations compared to the MB since 2011. But I would not say this situation is exactly what the protestors called for.

The economic dimension

The dire economic situation in Egypt is certainly a big factor in the current protests. Egypt is to some extent directly and indirectly being punished for having an islamist government. Much of this punishment is in terms of investments, loans and aid that use to flow into Mubarak's coffers freely.

Most investment in Egypt is still in the hands of Mubarak cronies who either out of fear, or vengeance have largely been uncooperative. MB has not touched them. There has not been any land redistribution or wealth redistribution, something else that typically accompanies a real "revolution".

Meanwhile Republications in the US have been playing games with Egyptian aid and non-military loans on the account of "supporting terrorists in charge." Saudi's also have been fairly hostile to Morsi.

Qatar's recently retired emir was a rare exception. He granted some loans to Egypt, but the real money would be in form of an IMF loan that has been held up because of demands of Eurpean-style austerity "reforms" including bread and gasonline subsidies. Morsi was eventually browbeaten into accepting these reforms, probably out of desperation, and they have just started to take effect adding to the poverty and uncertainty in the streets, and angering more citizens. Of course IMF still hasn't paid a dime.

Looking to the future

I'm personally not very optimistic in the short run. To have an elected government fail in office and be punished at the ballot box is one of the most beautiful things to me. But to have them be removed by force or mob rule, arrest them and shut down their media in the name of democracy will have terrible implications for Egypt for years to come.

For one thing, the MB government is the victim of injustice and can now claim the moral high ground and rightly resist any kind of integration. The MB protestors watch their members get killed and their buildings burned when the armed forces did nothing. Now, they will not trust these institutions and begin arming themselves for legitimate protection purposes.

Prior to MB's victory at the ballot box, most Western observers including many progressives were telling horror stories of what would happen if MB comes to power. Everything from immediate veiling of women, to destroying ancient archeological sites to outright attacking Israel "because they are so fanatic, they don't care about their own lives." None of this came through. If there were extremists who wished for some of these things, they were sidelined by the reform-minded MB. Morsi didn't do anything beyond fairly mild rhetoric against Israel and was recognized as a good partner for doing so by Israeli's themselves.

Another crucial point missed by the media is the level of opposition MB faced from the right and Islamist groups. I'm not sure why the media doesn't show the hundreds of banners with Morsi's face and Stars-of-David on them during the recent protests. Hardline islamists in the Salafi groups, and some of MB's own members were in Tahrir shouting about how much of a "Zionist stooge" Morsi is for not renegotiating the peace treaty with Israel, or for not doing more for the Palestinians.

If MB gets driven underground just as before in the 1950's it would be in a familiar situation. It would know how to operate and how to build networks of resistance. The saddest thing of all is that it would be able to convince millions of it's own sympathetic members that there are "forces" against Islam and islamic government because even when playing by the Western rules, they are not considered legitimate. Unless rectified immediately, it is a recipe for a bloody civil war.


Originally posted to Florida Democrat on Sat Jul 06, 2013 at 04:22 PM PDT.

Also republished by More and Better Democracies.

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