SCAF Declaration Turns "Soft Coup" Into Hard Reality

By: Ahmed Morsy 

Photo Credit: AP

The Supreme Council of the Armed Forces (SCAF) has issued an addendum to the March 2011 Constitutional Declaration that human rights activists fear will institutionalizemilitary dictatorship in Egypt. The SCAF’s decision to issue amendments to several articles on the eve of the announcement of the official presidential results was strategically timed to avoid accusations of anti-Brotherhood bias after a likely victory by the Freedom and Justice Party’s candidate Mohamed Morsi.

The announcement has renewed concerns that the SCAF is seeking to prolong its political role beyond June 30, the previously announced deadline for its transfer of power to an elected civilian president. Although the SCAF has renewed its pledge to hand over power by the end of the month, the dissolution of Parliament and subsequent transfer of legislative authorities to the military (confirmed in yesterday’s constitutional declaration) means that the SCAF will continue to wield significant political power until a new Parliament is formed – which the latest SCAF declaration suggests will not take place until a month after the new constitution has been written.

The new addendum referenced the role of the newly elected President as stated in Article 56 of the March 2011 Constitutional Declaration. According to the original article, the President possesses supreme rights that no other institution can challenge, especially in the absence of the Parliament. These rights include the issuing of laws and vetoing of Parliament-proposed legislation, appointing the cabinet and state bureaucracies, negotiating treaties and representing Egypt at home and abroad. In the new constitutional supplement, however, the SCAF has abridged presidential powers and further entrenched the military establishment as a de facto fourth branch of government. The SCAF now wields legislative power and the prerogative to oversee all military-related matters until a new Constitution is written and a Parliament is elected a month later. The generals, moreover, by giving themselves the right under Articles 60-B and 60-B1 to form and intervene in the work of the Constituent Assembly, have thus successfully engineered a legal basis for perpetuating their political and economic privileges in the new system and more importantly institutionalizing the “soft coup” they staged in February 2011.

In retrospect, the generals would not have been able to seize this opportunity and issue the new articles if the Supreme Constitutional Court (SCC) had not ruled the parliamentary law unconstitutional last week, a decision that required the dissolution of the recently elected People’s Assembly. In addition, the military and its security services were further empowered by last week’s Ministry of Justice Decree giving military police and intelligence officers sweeping powers  to arrest civilians, a move that effectively replaces the recently expired Emergency Law with martial law.

It is apparent that the generals issued this new constitutional declaration to maintain their interests and preemptively curb the powers of the President to prepare for their worst case scenario: a win by Mohamed Morsi. No matter how hard the generals feign impartiality, it is clear Shafik would be much more amenable to the perpetuation of military influence over Egypt’s political future, in comparison with Morsi and the Brotherhood, who represent a serious threat to the SCAF’s institutional and economic interests.

On the whole, the constitutional addendum enshrines the power of the military as a separate branch of government that is not only protected from civilian oversight, but possesses the power to check the president’s political agenda. By reserving for itself the power to issue laws and oversee the state budget, as well as veto presidential declarations of war, the SCAF has signaled that it is only willing to partially surrender its interim executive authorities. Instead of returning to the barracks by June 30 as promised to the Egyptian people, the generals have effectively broken their commitment and extended their rule until at least a new constitution is written, a process that could take months. The new powers that the SCAF has unilaterally claimed for itself present a serious and frustrating setback to Egypt’s so-called “democratic” transition. As human rights activist Hossam Baghat remarked, “Egypt just witnessed the smoothest military coup.  We’d be outraged if we weren’t so exhausted." 

Ahmed Morsy is an Egyptian Researcher and Ph.D. candidate at the School of International Relations, University of St. Andrews. This piece was originally published on the Atlantic Council's Egypt Source Blog.

On the Eve of Pivotal Supreme Court Rulings, All Scenarios Point to Turmoil

By: Ahmed Morsy

Photo Credit: AP

Egypt’s judiciary has emerged as a surprising new power-broker on the political scene, pushing the limits of its jurisdiction to rule on a number of polarizing and partisan disputes that have the potential to derail Egypt’s democratic transition just as it reaches the threshold of a transfer of power to civilian leadership. The judges - already struggling for their independence in the face of alleged interference from the executive branch -- have come under intense scrutiny after a controversial decision to suspendthe Constituent Assembly, then the trial against of NGO employees, and most recently the sentencing of former President Mubarak to a 25-year (life) prison term and acquitting his sons and six senior security officials. However, the most significant rulings that will impact Egypt’s democratic transition are still to come on June 14.  Just two days before the scheduled presidential runoff between Ahmed Shafiq, Mubarak’s last prime minister, and Mohamed Morsi, the Muslim Brotherhood’s candidate, the Supreme Constitutional Court will review the constitutionality of both the Political Disenfranchisement and Parliament laws. The decisions of the court will have a tremendous effect on Egypt’s future and could prolong the rule of the Supreme Council of the Armed Forces (SCAF).

The SCAF as well as political factions have committed terrible mistakes that threaten to reverse the whole transitional process back to square one. The upcoming Supreme Court rulings are politically charged and raise difficult questions about the next steps. For instance, in the case of barring Ahmed Shafiq, will the entire presidential election be re-run from scratch, or will the race be limited to the 12 candidates who competed in the first round? On June 13, Hatem Bagato, the secretary general of the Presidential Election Commission (PEC), suggested that the latter would be the appropriate course of action, but the SCC has yet to decide. If the Parliament is deemed unconstitutional, how would Islamists react to losing control of the legislative branch? Parliamentary Speaker Saad al-Katatny has stated that Parliament will abide by the SCC’s ruling, yet he insists that Parliament cannot be dissolved until the next elected president takes office – if and when that happens. How would these rulings affect the already struggling Constituent Assembly tasked with writing the new Constitution? And finally how would the Egyptians react to the new changes, bearing in mind that it might lead to the extension of SCAF’s rule beyond the June 30 deadline?

Several scenarios have been argued by various constitutional and legal experts regarding the constitutionality of the discussed laws. Below I tried to offer a concise summary of these various possibilities based on some legal opinions.     

Constitutional Court Scenarios for the Disenfranchisement Law:

• The disenfranchisement law is found to be unconstitutional. Ahmed Shafiq will be allowed to participate in the presidential elections runoff on June 16-17 (Most Likely)
   
• The SCC declines to review the constitutionality of the law, finding that the Supreme Presidential Elections Commission (SPEC) did not have jurisdiction to refer it in the first place. The disenfranchisement law is allowed to stand.
   
• The law is upheld and Ahmed Shafiq is banned from the runoff; the election is suspended and restarted (least likely)

Constitutional Court Scenarios for the Parliament Law:

• Law is ruled unconstitutional and Parliament is dissolved (likely option)
   
• Removing party-based MPs from the individual candidates' seats they won, and re-running elections for those seats.  (another likely option that would minimize conflict with the Islamist majority)
   
• Law is ruled unconstitutional but Parliament is allowed to serve out the remainder of its term before new elections are called.
   
•  Law is upheld (least likely, in light of strong precedents for dissolving Parliament on constitutional grounds in 1984, 1987, and 1990)

The Four possible scenarios after the Constitutional Court rulings on June 14:

Scenario 1 

High possibility - Islamists weakened, and Parliament dissolved):

• Disenfranchisement Law is ruled unconstitutional. The elections continue and Ahmed Shafiq participates in the runoff on June 16-17.
   
• The Parliament Law found to be unconstitutional. Parliament will be dissolved and the electoral law changed, leading to a new round of parliamentary elections.

Scenario 2

(Least likely):

• Disenfranchisement Law is upheld (SCC declines to review the law because the electoral commission had no authority to refer it to the SCC in the first place). The Presidential election is halted; Ahmed Shafiq barred, and the election is restarted, probably including only the 12 candidates who participated in the first round.
   
•  Parliament Law is upheld and the legislature is not dissolved.

Scenario 3

(Compromise – Power sharing arrangement between SCAF & MB):

• Disenfranchisement Law ruled unconstitutional. The elections continue and Ahmed Shafiq participates in the runoff on June 16-17.
   
•  Parliament Law is upheld and the legislature is not dissolved.

Scenario 4

(Worst Case; Leads to the continuation of SCAF and wide array of havoc):

•  Disenfranchisement Law is ruled constitutional. The Presidential elections is halted; Ahmed Shafiq barred, and the elections are restarted.
   
•  Parliament Law is ruled unconstitutional. Parliament to be dissolved and the electoral law changed.

 

Ahmed Morsy is an Egyptian Researcher and Ph.D. candidate at the School of International Relations, University of St. Andrews. This piece was originally published on the Atlantic Council's Egypt Source Blog.