Last Updated: Wednesday, 09 July 2014, 13:04 GMT

A Way Out of Egypt's Transitional Quicksand

Publisher International Crisis Group (ICG)
Publication Date 26 November 2012
Cite as International Crisis Group (ICG), A Way Out of Egypt's Transitional Quicksand , 26 November 2012, available at: http://www.refworld.org/docid/50b475162.html [accessed 10 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

President Mohamed Morsi's dramatic one-two punch – producing a ceasefire agreement between Israel and Hamas on 22 November; issuing a constitutional declaration granting himself full powers the next day – was proof of remarkable political deftness. It also was evidence of the impasse in which Egypt's transition has been stuck as well as of the Muslim Brotherhood's worrying tendency to try to overcome it by ignoring rather than compromising with its detractors. Morsi had ample justification for frustration. A highly politicised judiciary has been doing all in its power to hinder the new leadership's efforts and obstruct the expression of popular will, while the non-Islamist opposition has not shown itself the least bit constructive or conciliatory. But the president has offered the wrong answer to a real problem. He used a chainsaw where a scalpel was needed. The key lies in devising a compromise enabling the transition to move forward at a reasonable pace while offering substantive guarantees to an apprehensive opposition.

The constitutional declaration orders far-reaching change. It removes the unpopular Prosecutor General, a Mubarak-era holdover; paves the way for retrial of recently acquitted officials implicated in violence against demonstrators; protects both the Shura Council and Constituent Assembly from possible court-ordered dissolution; prolongs the Constituent Assembly's term by two months; and, crucially, immunises all presidential decisions from judicial review until adoption of a new constitution. It did not come out of the blue. The transitional process had dragged on for almost two years and appeared on the verge of collapse. The democratically-elected lower house of parliament and the first constitution-drafting committee were dissolved by court orders in the past several months; speculation was rife that the courts soon would turn their fire to the two remaining popularly-mandated institutions – the upper house of parliament and the Constituent Assembly – and disband them too.

Other dangers lurked: the Supreme Constitutional Court purportedly was poised to reinstate on 2 December the June 2012 Supplementary Constitutional Declaration pursuant to which the Supreme Council of the Armed Forces (SCAF) had awarded itself unprecedented legislative and executive powers. Were that to happen, all of Morsi's subsequent decisions theoretically would be null and void.

Together, these steps would have comprehensively muddied the picture, done away with the full panoply of representative bodies, ignored the popular will expressed in the March 2011 referendum, blocked the course of institution-building, indefinitely delayed the writing of a constitution and left a perilous question mark on the country's future. They also could have had devastating economic implications. Already, the chaotic days of the uprising, uncertain transition and intermittent violent protests have worsened a situation that includes a massive budget deficit, crumbling infrastructure, soaring unemployment and rapidly declining foreign currency reserves. News of the decree and pictures of subsequent protests sent the stock market tumbling.

Morsi's decision arguably enjoys broad support from a citizenry yearning for stability. Opposition calls to rally in Tahrir Square belong more to the realm of nostalgia than to that of effective politics: the revolutionary zeal of 2011 has long exhausted itself, and any violence likely would rally a majority to the president's side. Without meaningful grassroots popular backing, the non-Islamist opposition typically has resorted to obstructionist politics rather than formulate a positive agenda. Its demand for a complete rescinding of the declaration is unrealistic, as Morsi has staked much of his political capital on this move.

Still, the president made a bad bet. His twin defences – that he is acting on behalf of the people's will (Article 6 says that he can take all necessary measures "to protect the country and the goals of the revolution") and that his measures are merely temporary, due to expire with adoption of a new constitution – are as old as the history of power-grabs itself. His decree sets an alarming precedent, concentrating inordinate powers in the hands of a single individual and relieving him of all judicial oversight. It could make adoption of a consensual constitution a near-impossibility, no matter how impeccably fair and democratic its content ultimately might be.

It also has further divided a country that hardly could afford greater polarisation. The executive branch is at loggerheads with the judiciary, a long-established institution; many judges have called for widespread strikes and some are urging the president's impeachment. Neither event is likely to happen, but a drawn-out standoff between the two branches of government would come at high cost. Battle lines likewise have sharpened between Islamists and non-Islamists for whom the president's move is incontrovertible validation of all the suspicions and fears they long harboured about the Muslim Brotherhood. The last few days have seen violence break out, with several headquarters of the Freedom and Justice Party – the Brotherhood's political arm – set ablaze and a young Brotherhood member killed. Two of Morsi's advisers have resigned in protest. A tug-of-war in an institutional vacuum, amid considerable mistrust, without any legitimate arbiter and in the absence of consensual rules is not what the country needs.

The president's priority should be to address through dialogue and negotiations – not through unilateral decree – the twin problems that led to his imprudent actions in the first place: intensifying hostility on the part of an excessively partisan judiciary seemingly intent on undoing step-by-step what institutions still existed; and the threatened paralysis of the constituent body from which non-Islamist members had been resigning in droves.

Compromises between the president, judiciary and opposition will be difficult to reach, but their outline seems clear:

the president and the Supreme Judicial Council should agree on rolling back his decree, amending it so as to restore judicial oversight over his decisions with the exception of those pertaining to the maintenance and functioning of representative political institutions, namely the Shura Council and Constituent Assembly; the courts should respect this agreement and refrain from their own overreach, allowing the transition to take its course; and members of the Constituent Assembly who have withdrawn in protest against what they consider to be Islamist over-representation ought to rejoin the body; as a good-will gesture, some Islamist members could resign and be replaced by constitutional law experts. There is little doubt that Egypt was in urgent need of a corrective, as its drawn-out transition increasingly looked in deep trouble. But this was not the way to do it. There are initial indications that some within the executive branch are looking for a less confrontational way out. The justice minister – a respected figure from the opposition to Mubarak – has reached out to the Supreme Judicial Council, the highest judicial authority, which, in turn, urged judges not to go on strike. Efforts in the coming days should focus on remedying the fundamental flaws that have plagued the transition from the day President Mubarak was ousted: the absence of an agreed-upon set of principles and a political roadmap that sets the final destination and a safe pathway for getting there. The onus lies not on the president alone, but equally on an opposition that must prove itself a serious and responsible political actor.

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