Egypt's Fundamental Crisis of Legitimacy

With the high court ruling the upper house and the constituent assembly are illegal, Egypt may have no lawful way forward.

Egypt’s Supreme Constitutional Court (SCC) has taken another step toward annulling the outcome of the elections that followed the 2011 uprising. Earlier this week, it declared that the Shura Council was elected unconstitutionally and that the Constituent Assembly that drafted the new constitution was also an unconstitutional body. The crisis of legitimacy created by this development means that the country could experience a new outbreak of violence at any time.

The 2012 parliamentary elections gave 70 percent of the seats to the Muslim Brothers’ Freedom and Justice Party and the Salafi An-Nour Party, while the presidency went to the Brotherhood candidate Mohammed Morsi by a narrow margin. The SCC reacted immediately. In June 2012 it declared the election law unconstitutional and dissolved the House of Representatives, the lower and more powerful chamber. It also dissolved as unconstitutional the first constituent assembly elected by the parliament. For reasons that are not clear either politically or juridically, the SCC allowed the second constituent assembly elected by the same parliament and the Shura Council (the upper house) to stagger along until June 2 under constant threat of dissolution. By that time the constituent assembly no longer existed, having completed its job, but the SCC’s decision was not inconsequential.

The ruling calls into question the validity of the new constitution—in Egypt’s new theater of the absurd the new constitution is being judged on the basis of the abrogated old one. The SCC’s ruling also undermined the Shura Council. The court allowed it to continue functioning until a new parliament is elected, but all laws it enacts are now suspect. Even before the latest ruling, the SCC had twice rejected as unconstitutional the new election law passed by the Council. Indeed, there is no guarantee that the third draft will pass muster unless it meets all of the SCC’s increasingly political demands. Among them is that members of the army and security forces be allowed to vote, a departure from a long-established tradition to which the present judges, all Mubarak appointees, never objected in the past. Not only is the SCC deeply politicized, but also it even appears to be appropriating legislative power.

The SCC’s latest ruling confirms it is a major political player and a declared enemy of the Muslim Brotherhood, seeking to annul its election victories and undo its decisions. In response, the Muslim Brothers are now seeking to enact legislation that will reintroduce the traditional mandatory retirement age of sixty for judges (abrogated in stages by Mubarak in order to keep on the bench judges that ruled in his favor). Lowering the retirement age would create a large number of vacancies the Brotherhood could then fill with its own appointees. But such a law would be passed by the same Shura Council the SCC has just declared unconstitutionally elected—it is not a far-fetched hypothesis that the SCC would then strike it down. It is now open warfare between the SCC and the Brotherhood.

The details of this saga are quite confusing, but the consequences are clear. The SCC’s highly political decisions have created not a perfect storm but a vicious circle: it is now impossible for Egypt to move forward following due process of law. The courts have struck down all institutions, and the constitution is called into question. Egypt is caught between the dictates of the SCC, whose members were appointed by Mubarak and are accountable to no one, and those of the Muslim Brotherhood, which has won both parliamentary and presidential elections fairly but is showing definite authoritarian tendencies. Democracy and due process are the first victims of this confrontation. It may be impossible for Egypt to reconstruct legitimate institutions through a democratic political process acceptable to all sides. The possibility of violence or a new military intervention is real.

The solution envisaged by the Muslim Brotherhood is straightforward. The Shura Council will pass an election law that passes the SCC’s criteria, and this will open the way for elections. In these elections, as in all previous ones since Egyptians started voting, members of the military and security forces will not vote in order to maintain their political neutrality.

From the point of view of the secular opposition—which at this point includes the courts—the flaw with this scenario is that the Muslim Brotherhood and the Salafi parties are likely to come out on top again. While opposition members argue vehemently that the Islamists have lost popular support due to their mounting authoritarianism and their incompetence, they do not act as if they believed what they say and seek to postpone elections for which their organizations are not ready. They are probably right in being fearful of the vote: recent opinion polls, including one released in May by the Pew Research Center, suggest that Islamists are losing ground but are still more popular than their secular opponents. As a result of the SCC’s rulings on the election law, elections originally scheduled to start in April will now take place in the late fall or even next year. In fact, there is no telling when the SCC will be satisfied with the election law: when it struck it down the second time, it did not simply state that the problems it had identified earlier had not been corrected, but raised new demands, including the vote for members of the military and security forces.

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