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The Articles contained within both the Constitutional Declaration announced by Egyptian President Muhammad Mursi on 22 November and within the "Law for the Protection of the Revolution" (Law 96/2012) announced by a presidential spokesman on 22 November have reinvigorated popular protests in Midan Tahrir and elsewhere in Egypt, have motivated strikes by a number of powerful professional associations and, most fundamentally, have rekindled deep suspicions within and outside of Egypt regarding the Mursi Administration's stewardship of the Revolution and the political transformation of post-Mubarak Egypt.

Generally (and let's be honest, not at all unexpectedly), the MSM-ish media have latched onto the most simplistic and overdetermined narrative with which to "tell the story" of the current political crisis in Egypt, representing the Constitutional Declaration and Law 96 as a pure power-grab by Mursi and the Ikhwan (Jam'iyyat al-Ikhwan al-Muslimun, the Muslim Brotherhood) now confronted by a unified popular opposition for whom Mursi is "the new Pharaoh." In short, we're invited to comprehend the current crisis as one among Islamists and non-Islamists. While this may be a comfortable narrative for many—an opportunity for outrage—it impedes nuanced comprehension of the Articles of the Constitutional Declaration in the context of a stagnant post-Mubarak transition.

This is, of course, not the first Constitutional Declaration issued by Mursi. On 12 August 2012, the "Sunday of Surprises," Mursi announced a series of decisions that served to reconfigure the balance-of-power between the Executive and the Egyptian military leadership. Forced retirements of the old-guard SCAF (Supreme Council of the Armed Forces) military leadership and their replacements from a younger cadre of officers less steeped in Mubarakism lessened the threat of a resurgent junta. The annulment of Articles 56 and 60 of SCAF's Constitutional Addendum (17 June 2012) further stripped SCAF of executive and legislative authority, notably the power to dissolve the Constituent Assembly charged with drafting Egypt's new Constitution. In effect, the Declaration of 12 August confronted and neutered one element of "the deep state" reponsible for stalling the post-Mubarak political transition.

Overshadowed by the Articles related to SCAF, the Declaration of 12 August also included the announcement of the appointment of Mahmud Makki to the office of Vice President. In hindsight (ain't it grand?) this appointment foreshadowed the second Constitutional Declaration announced on 22 November. I was close, I think, when I wrote the following in the diary linked above:

The appointment of Mahmud Makki as Vice President is shrewd, given Makki's judicial influence and insights on the courts which may ultimately rule on aspects of the Assembly's work. It is also perhaps worth noting that Makki is brother to Ahmad Makki, the recently appointed Minister of Justice. A little nepotism may go a long way, no?
My take on the recent Constitutional Declaration, and the associated "Law for the Protection of the Revolution," is that it is largely the product of a small group of judges appointed to high-office by Mursi (the Makki brothers and a few others) with the intent to confront a second element of "the deep state," namely the judiciary, held responsible for stalling the work of Parliament and the Constituent Assembly. Is it a power-grab? Absolutely, yet one not so easily reduced to the characteristic shallow treatment afforded by the MSM-ish media.

Below the fold, then, for a discussion of the Articles of the recent Constitutional Declaration and the "Law for the Protection of the Revolution," the members of the Mursi Administration involved in drafting these documents and the confrontation of the judiciary qua "the deep state."

President Mursi's Constitutional Declaration of 21/22 November contained seven Articles. The new "Law for the Protection of the Revolution" is mentioned in Article 1, so I've appended a summary of the Law there.

Article 1. Investigations and prosecutions will be reopened in the cases of the murder, attempted murder and wounding of protesters as well as the crimes of terror committed against the revolutionaries by anyone holding political or executive position under the former regime, according to the "Law for the Protection of the Revolution" and other laws.
Summary of the "Law for the Protection of the Revolution" (Law 96/2012)

Article 1. [restatement of Article 1 of the Constitutional Declaration with the following appended statement: "The crimes set forth in the paragraph above are the crimes against the martyrs and revolutionaries of the glorious 25 January Revolution"]

Article 2. Specifies that trials for crimes against the revolution will be reopened only if 1) new evidence emerges or 2) new circumstances emerge related to evidence already entered at trial.

Article 3. Specifies that "in order to protect the Revolution" a special judicial service shall be set up across the country including a sufficient number of prosecutors and judges who will serve for a term of one year renewable by the Prosecutor General.

Article 4. Criminalizes withholding evidence related to the crimes listed in Article 1, and criminalizes withholding evidence related to the trials against former regime officials for political or financial corruption.

Article 5. Specifies that the Prosecutor General can order the detention of suspects for a period up to six months.

Articles 6 and 7. Boilerplate re. publication of the Law and immediate effect.

Article 2. Previous constitutional declarations, laws, and decrees made by the President since he took office on 30 June 2012 are final and binding and cannot be appealed by any means or to any entity until the Constitution is approved and a new People's Assembly [lower house of Parliament] is elected. Nor shall they be suspended or canceled and all lawsuits against them and brought before any judicial body are annulled.

Article 3. The Prosecutor General is to be appointed by the President of the Republic from among the members of the judiciary for a four-year term commencing from the date of office and is subject to the general conditions of being previously appointed as a judge and should not be under the age of 40. This provision applies to the current incumbent with immediate effect.

Article 4. The text of Article 60 of the Constitutional Declaration of 30 March 2011 [regarding the Constituent Assembly] that reads "it shall prepare a draft of a new constitution no later than six months from the date of its formation” 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."

Article 5. No judicial body can dissolve either the Shura Council [upper house of Parliament] or the Constituent Assembly responsible for drafting the Constitution.

Article 6. If there is a threat to the January 25 Revolution, or to the life of the nation, or to national unity, or to the safety of the nation, or a hindrance to institutions of the state in the performance of their roles, the President is empowered to take actions and measures appropriate to address this threat as regulated by law.

Article 7. This Constitutional Declaration is valid from the date of its publication in the Official Gazette. Issued in the Office of the Presidency on Wednesday, 21 November 2012.

Carrot? Meet Stick!

Taken together, the Constitutional Declaration and the "Law for the Protection of the Revolution" offered a number of carrots to the revolutionaries including the formation of a legal apparatus to reinvestigate and retry officials within the previous regime (CD Art. 1 + LPR) and the ouster of Prosecutor General Abdalmajid Mahmud, whose oversight of trials resulting in the acquittal of senior figures from the Mubarak regime incurred sharp criticism and street-protests from revolutionaries (CD Art. 3). In the wake of the 10 October 2012 acquittal of regime figures accused of orchestrating the 2 February 2011 "Battle of the Camels," the Mursi Administration attempted to remove Mahmud from the post of Prosecutor General by means of a promotion to Ambassador to the Vatican, but Mahmud rejected the appointment and stated that the only way he would leave his post was via assassination. Mahmud has been replaced by Talaat Ibrahim Abdallah.

A carrot was offered to members of the Constituent Assembly who desired more time to complete the draft of the new Constitution (CD Art. 4, 5) and also to Parliamentarians of both the People's Assembly and Shura Council whose legal status has been in doubt pending varied court cases (CD Art. 2, 5).

Perhaps the most succulent carrot was dangled before an impatient Egyptian citizenry, in the sense that the Constitutional Declaration offered a means for the Constituent Assembly to simply get on with their work to approve a draft Constitution which could then be put to public referendum, only after which elections for a new Parliament can occur.

The crackingest stick was wielded against the Egyptian judiciary, with Prosecutor General Mahmud receiving the most visible blow (CD Art. 3). Yet the annulment of all lawsuits against decisions related to the election and standing of Parliament and the Constituent Assembly is a more fundamental in-the-face executive challenge to judicial autonomy and authority. From the Mursi Administration's perspective, significant portions of the judiciary and in particular the Supreme Constitutional Court (SCC) are viewed as remnant elements of "the deep state" of the Mubarak regime that continued largely uninterrupted under SCAF's stewardship of the country. Recent SCC rulings have treated SCAF's March 2011 Constitutional Declaration as Egypt's governing document and their silence on more recent Declarations, especially that of 12 August 2012, has fed a fear in the Mursi Administration that the SCC may be set to void the Constitutional Assembly, the Shura Council and the Declaration of 12 August that reconfigured the relationship between the executive and the military. In short, motivated by fear of a potential "reset" to SCAF's junta that would likely sink the credibility of Mursi, his Freedom and Justice Party and the Ikhwan, the executive has exerted extraordinary power to insulate the Constituent Assembly from the judiciary.

It's the Judiciary, Stupid

Simmering below the current confrontation between the executive and the judiciary is a decades-long struggle within the Egyptian judiciary over reforms and independence. Representative of one view on these issues is a small group of powerful officials within the Mursi Administration: Vice President Mahmud Makki, appointed in the Constitutional Declaration of 12 August; Minister of Justice Ahmad Makki, appointed on 2 August 2012; Hussam al-Ghariani, former Head of the Supreme Judicial Council (SJC) and current Chair of the Constituent Assembly; and Talaat Ibrahim Abdallah, newly appointed Prosecutor General.

These four men were prominent figures within the Judicial Independence Movement under the Mubarak regime, attempting to free the judiciary from its dependence on executive power. While it may seem counter-intuitive that they should back the executive in its current confrontation with the judiciary, it does make sense as part of a long-game to rid the judiciary of remnants of "the deep state," in particular Ahmad al-Zind. Al-Zind is the President of the influential Judges Club and widely viewed as a collaborator with the Mubarak regime who, since the ouster of Mubarak, has populated the ranks of the Club with judges who oppose the Mursi Administration, the FJP and the Ikhwan as vigorously as they bolstered the Mubarak regime, the SCAF junta and SCAF's presidential candidate Ahmad Shafiq. The conflict over the nature of judicial independence is quite evident in the proposals drafted separately in September 2011 by Ahmad Makki and Ahmad al-Zind to replace the Judicial Authority Law of 2006. Boiled down, Makki's proposal envisions a minimum of executive influence over judicial appointments and the gutting of the influence of the Judges Club which, since 2005, has traded independence from the executive for personal status.

So, paradoxical as it may seem, the judicial power-grab by the Mursi Administration seems intended to promote the longer-term goal of judicial independence through the implementation, down the road, of something similar to Ahmad Makki's draft Judicial Authority Law. In much the same way, the executive power-grab within the recent Constitutional Declaration seems intended to carve out space for the legislature, represented by the Constituent Assembly, to complete the draft of a Constitution that will define and delimit the powers of the future executive. As Kossack Fire bad tree pretty noted in an excellent post last Sunday, this Constitutional Declaration seems to be an act of "killing the revolution to save the revolution."

Arrogance, Desperation and Trust

There should be no doubt that the process of political transformation in post-Mubarak Egypt has stagnated in recent months. The legal status of Parliament and the Constituent Assembly are issues that have languished unresolved and there can be no progress toward a new elected Parliament until the Constituent Assembly has passed a draft Constitution that can be put to public referendum. Whether rooted in arrogance or desperation, the Constitutional Declaration was a bold move by the Mursi Administration intended to free the process from the judicial component of "the deep state," in much the manner that the Constitutional Declaration of 12 August was intended to free the process from the military. In this view, the Declaration makes sense as a means to procure a draft Constitution as a fait accompli on the basis of which to move forward with the referendum and subsequent elections.

Yet if this was the Mursi Administration's goal, they have done an especially poor job communicating that to the Egyptian citizenry. Article 2 of the Declaration essentially reads "trust us, we've got this" yet trust—in Mursi, in the FJP, in the Ikhwan—is an ever-dwindling resource. Mursi may have boldly taken on the aegis of the Revolution but the widespread protests against the Declaration reveal with what little credibility his Administration's stewardship is held.

As I finish typing this up, the remaining members of the Constituent Assembly are continuing to vote on the Articles of the draft Constitution and President Mursi is expected to address the nation this evening. This speech, in my opinion, will be a make-or-break moment.

A Few Suggested Readings (and if you can't tell, I think that Nathan Brown is someone whose views on developments in Egypt merit serious attention)

Ahmed Osman, Judicial Reform Hits a Bump as Judges Propose Conflicting Draft Laws. Egypt Independent (21 September 2011)

Issandr El Imrani, Sightings of the Egyptian Deep State. MERIP (1 January 2012)

Jano Charbel, The People Want a Free Judiciary. Egypt Independent (22 March 2012)

Mara Revkin, Egypt's Injudicious Judges. Foreign Policy (11 June 2012)

Nathan Brown, Still Fighting the Last War? Egypt's Judges After the Revolution. The Cairo Review of Global Affairs (18 October 2012)

Nathan Brown, Analysis: Morsi's Auto-Golpe. The Arabist (22 November 2012)

Nathan Brown, Decoder: Morsi, the Judiciary and Acts of Sovereignty. The Arabist (25 November 2012)

Nathan Brown, The Revolution in Crisis. Egypt Independent (27 November 2012)

Heba Afify, Not a Monolith: Different Faces of the Judiciary React to Morsy's Declaration. Egypt Independent (28 November 2012)

Originally posted to angry marmot on Thu Nov 29, 2012 at 11:35 AM PST.

Also republished by Adalah — A Just Middle East and Community Spotlight.

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