Institutional Clash in Egypt
Via the NYT: Egyptian Judges Challenge Morsi Over New Power.
Egyptian judges rebelled Saturday against an edict by President Mohamed Morsi exempting his decrees from judicial review until ratification of a constitution, denouncing it as a bid for unchecked power and calling for a judges’ strike.
The condemnation came from an array of organizations. The Supreme Council of the Judiciary called the decree “an unprecedented attack on judicial independence” and urged the president to rescind it. A major association of judges, the Judges Club, called for a strike by courts across Egypt. The leader of the national lawyers’ association endorsed the call.
A judicial strike would be the steepest escalation yet in a political struggle between the country’s new Islamist leaders and the institutions of the old authoritarian government over the drafting of a new constitution.
Of course, griping and strikes will only go so far. The real question is whether the courts will attempt to nullify the edict issues by Morsi.
Of course, the courts have helped create this situation:
Because the court dissolved the Parliament, the judiciary was the last check on his power, and critics called the decree a step toward autocracy.
What set off the battle was the year-end deadline for the Constitutional Assembly chosen last spring to draft a new constitution. There had been rumors that the Supreme Constitutional Court was poised to dissolve the assembly in a ruling next Sunday. Top courts had already dissolved both an earlier Constitutional Assembly and the Parliament. All three bodies were dominated by Islamists, who have prevailed in elections, and many of the top judges harbor deep fears of an Islamist takeover.
The root of much of the problem in Egypt going back to the days after Mubarak was ousted is the lack of a new constitution. There needs to be an inclusive process by which a new constitution was established to provide the framework for a government post-regime change. Instead there was a minor tweaking of the existing constitution and a number of aconsitutional moves (first by the military, later by the courts, now by Morsi). They are playing the game without rules in Egypt.
As I noted back in June: the Egyptian transition has been a mess that demonstrates the sequencing matters:
The more appropriate route for the transition would have been the calling of constituent assembly to write a new constitution that would have established the rule of the game going forward. Instead, the existing constitution was altered and then a quick move was made to first parliamentary and now presidential elections. These processes, which are essential for the establishment of a viable new governing system, were clearly not well thought out. The first round of the presidential election was a bit of a mess, and has led to one of the candidate being highly controversial and now the election of one-third of the parliament has been declared unconstitutional.
The current situation is just a the ongoing consequences of these poor choices.
I think, by the way, that Marc Lynch is correct regarding the current situation:
Morsi’s move should be seen in the context of Cairo’s intensely polarized, gridlocked politics rather than as some pure expression of Islamist intent. His power is more impressive on paper than in reality. But there is no real question that Morsi went too far: decrees changing the rules of the game and placing the executive above any appeal were dangerous and wrong when done by the SCAF, would have been dangerous and wrong if done by a President Shafik, and they are dangerous and wrong when done by Morsi. They should be reversed. But that will no more solve the underlying problems than last week’s Israel-Hamas ceasefire will solve the enduring problems of Gaza.
Clearly it is unhealthy for any hope of democratic evolution in Egypt for the executive to be issuing edicts of this nature, and I agree with Lynch that they should be reversed. However, it is truly unclear at the moment as to whether the edicts actually mean more power or not. I remain unconvinced that the military is still not the most powerful institution in Egypt and is simply letting the current situation play itself out to see how it out to position itself.