Only one day after brokering a cease fire agreement between Hamas and Israel, Mohamed Morsi cashed in his political capital. In a bold and controversial move, the Egyptian president issued a constitutional decree declaring himself above the law. The full English text of the decree is as follows:
Reopen the investigations and prosecutions in the cases of the murder, the attempted murder and the wounding of protesters as well as the crimes of terror committed against the revolutionaries by anyone who held a political or executive position under the former regime, according to the Law of the Protection of the Revolution and other laws.
Previous constitutional declarations, laws, and decrees made by the president since he took office on 30 June 2012, until the constitution is approved and a new People’s Assembly [lower house of parliament] is elected, are final and binding and cannot be appealed by any way or to any entity. Nor shall they be suspended or canceled and all lawsuits related to them and brought before any judicial body against these decisions are annulled.
The prosecutor-general is to be appointed from among the members of the judiciary by the President of the Republic for a period of four years commencing from the date of office and is subject to the general conditions of being appointed as a judge and should not be under the age of 40. This provision applies to the one currently holding the position with immediate effect.
The text of the article on the formation of the Constituent Assembly in the 30 March 2011 Constitutional Declaration that reads, “it shall prepare a draft of a new constitution in a period of six months from the date it was formed” is to be amended to “it shall prepare the draft of a new constitution for the country no later than eight months from the date of its formation.”
No judicial body can dissolve the Shura Council [upper house of parliament] or the Constituent Assembly.
The President may take the necessary actions and measures to protect the country and the goals of the revolution.
This Constitutional Declaration is valid from the date of its publication in the official gazette.
So what does all this mean? For some, the move signals a worrying turn toward dictatorship. As Nobel Peace Prize winner and one-time Egyptian presidential candidate Mohamed El Baradei put it, “Mursi today usurped all state powers and appointed himself Egypt’s new pharaoh. A major blow to the revolution that could have dire consequences.” Prof. Nathan Brown, an expert on the Egyptian judiciary, is more circumspect: “Perhaps [Morsi] will use his authority to protect a process that will build a functioning democratic and pluralistic system. That is not impossible. But it’s an odd way to build a democracy.”
Of course, nothing in Egypt is simple or straight-forward and Morsi’s performance as president has, so far, been a mixed bag of strategic successes and failure. What does seem clear is that this latest move is a critical development in the simmering battle between Morsi and the country’s judicial branch.
Since winning the Presidential elections in June of this year, Morsi has had a number of confrontations with the Egyptian judiciary. The first came shortly after his electoral win, when he issued a decree reinstating Egypt’s lower house of parliament, which had been judicially dissolved on constitutional grounds. Egypt’s Supreme Constitutional Court responded by declaring Morsi’s decree unconstitutional. Morsi did not challenge the court’s decision.
Another show down came in October. Morsi attempted to remove Egypt’s Prosecutor General, Abdel Maguid Mahmoud, a Mubarak regime stalwart, by appointing him Egypt’s ambassador to the Vatican. Mahmoud refused to leave his post and his judicial colleagues came to his aid. Again, Morsi backed down.
The Egyptian judiciary is far from a homogenous body, especially in post-Mubarak Egypt. Some of its members take a “revolutionary” approach to justice, privileging the aims of the revolution over a strict adherence to the letter of the law. Other members favor a more Islamic-bent to judicial decision-making. Still others are traditionalists, more concerned with doing their jobs decently than with bringing about social change or injecting religious principles into their work. Finally, there are those judges who vehemently oppose the rise of the Muslim Brotherhood and/or who remain invested in maintaining the remnants of the Mubarak regime.
Knowing the exact distribution of these perspectives within the Egyptian judiciary is hard. Cases are heard by a panel, rather than a single judge, and written decisions are issued anonymously – it is, in fact, illegal for a judge to publicly disclose his or her vote in a case. Nevertheless, Egypt’s judges are not prohibited from speaking out about their political views and, since Mubarak’s ouster, a number of prominent judges have made their distaste for the Muslim Brotherhood clear.
Only days before the run-off vote in the June Presidential elections, Judge Ahmed Zend, the president of Egypt’s Judges’ Club, captured this trend, “‘We used to stand at the edge of the judiciary and not go near politics,’ he said ‘But now Egypt is falling. We won’t leave matters for those who can’t manage them, with the excuse that we’re not people of politics. No, we are people of politics.’”
Those Egyptians unhappy about the Muslim Brotherhood’s rise to power do, in fact, expect the judiciary to check the group’s power and ensure it does not overstep its bounds. Judges like Ahmed Zend seem keen to assume that role, at whatever cost.
It is not impossible that Morsi’s latest decree may be the beginning of a turn toward autocracy. In this regard, Article VI, stating “The President may take the necessary actions and measures to protect the country and the goals of the revolution,” is most troubling. What is more likely, however, is that Morsi acted in response to the political forces within the judicial branch, which have been intent on opposing the Brotherhood at whatever cost to the revolution.
The Prosecutor General, who is a central focus of the decree, is a particularly important figure in this regard. The Prosecutor General has a prime role in the Egyptian judicial system. He controls the various prosecutor officers through the country, influences how these offices are run, and determines the kinds of cases that are pursued. The now-ousted Prosecutor General was notorious before and after the Mubarak regime for ensuring that politically-sensitive cases did not move forward or were not successfully prosecuted. In October 2012, his acquittal of officers allegedly involved in attacks on protesters led to demonstrations in Tahrir Square.
Of course, Morsi’s decree will probably be brought before the Egyptian courts where it will most likely be overturned – whatever their orientation, Egypt’s judges do pride themselves on their independence and this move, if nothing else, does interfere with this. As such, the saga will continue. For now, though, it’s Morsi – 1, Egypt’s judges – 0.