No Fear: Morsi's Rule of Law [Al Arabiya]

March 10, 2013

Why should I respect the judges? My own president doesn’t.[Protestor, Port Said]

As though anyone needed another reminder. As though anyone had not quite received the message when prisons were stormed in Port Said, after the judges pronounced a suspicious verdict. As though anyone had not realised that the institutions of Egypt are being weakened – and Egyptian citizens would pay the price if they were weakened further. Yet, after the Administrative Court of Egypt cancelled the parliamentary elections due to begin next month, it seems that many do indeed need that reminder. The question is – how many reminders will it take?

Under now deposed president Hosni Mubarak, the Egyptian state had its pillars. One of them was brought down in the January 25th uprising – the ‘pillar of fear’. Regardless of the botched nature of this transition, the Egyptian revolution has accomplished at least one thing – it has ripped to shreds the curtain of fear.

That, no-one can deny, was a good thing. However, there is a corollary to consider here – if the ‘pillar of fear’ was so strong in Mubarak’s Egypt, then what has filled in the void that it used to occupy? Or did it not serve a purpose to begin with?

The reality is – it did serve a purpose, by creating a purpose. When a state apparatus is so absolute, and fear is so prevalent, it does ensure that individuals do not step out of certain predefined norms. In countries where such an apparatus does not exist, something else fills in that void. Civil society institutions; respect between the state and the citizen; a social contract; and so forth.

Filling the void

When the pillar disappeared, a void did emerge – and in the last two years, no one in Egypt’s ruling elite has tried to fill it. The military council that governed Egypt for 18 months was uninterested in doing so – it left it empty, and it left the other institutions alone. Neither was satisfactory – the state’s institutions needed to be reformed after the revolutionary uprising, not left to their own devices. This is particularly the case if fear, which animated so much of Egyptian society prior to the uprising, was no longer the tool of the state.

When the Muslim Brotherhood presidency began, it also did not try to fill in the void which fear had formerly occupied. However, it arguably did a worse job than the military council in that regard. While the military council had left other pillars, such as the ministry of the interior, the judiciary, and the media, alone, President Mursi’s government progressively managed to weaken them. The fight with the judiciary during the November presidential decree period managed to systematically damage the standing of the judiciary in the country, at a very critical time in Egypt’s transition.

Disrespecting the judiciary

When President Mursi gave his decree in the way he did, he was essentially telling the Egyptian public, “I am the president, and I have the right to suspend the rule of law, even though I just barely won the presidential election.” That in itself has consequences – consequences that supporters of the president argued were only theoretical, as President Mursi hadn’t used his supra-judicial powers (much). Port Said erupting, however, has put a question mark on how inconsequential his action was. How did Egyptian citizens see their president disrespect the institution of the judiciary, and not allow that to affect how they saw the same institution?

One would have hoped that the government might have realised that, indeed, Egypt needs all the strength its institutions can muster – and that any changes to them must be enacted carefully, and through the prism of consensus-based reform. In this highly polarised environment, this is hardly possible without a successful effort from the political ruling establishment to bridge the gaps.

Instead, however, it seems that the lesson has not yet been learned. When the Egyptian senate was proposing the election law, the constitutional court said it was legally flawed on a number of points. Judicial review of such a key legal tool demands that the court send such an assessment, and then also assess whether or not the legislature has fully complied. Instead, the senate changed the law, and assessed its own compliance. That is not how judicial oversight works – checks and balances in any normally functioning political system are precisely designed to ensure accountability of one branch by another. When one branch is given the ability to hold itself to account, without oversight, the system is brought one step closer to autocracy.

Political acumen?

The administrative court last week rejected the law, and in so doing, nullified the presidential decree to hold elections next month (based on the rejected elections law). The fact that the president’s office even issued such a decree calls into question the legal advice that his own advisors are providing, considering that this legal eventuality was easily foreseeable. None of that is good news for the presidency; the polarization in the country questions the political acumen of this presidency, and the ensuing economic trauma questions its financial expertise. With this latest debacle, the legal proficiency within the presidency cannot be taken for granted either.

The opponents of the presidency will likely take this as a sign that the judiciary is fighting back – and with so many of the opposition’s political forces agitating for an electoral boycott, it works neatly with their agenda. The supporters of the presidency will likely interpret it in the same fashion – a partisan move that is designed to weaken the president and strengthen the opposition. However, the fundamental reality of the court’s decision in this regard is that it was legally inevitable. Had the court not halted the electoral process, it would have essentially handed over judicial overview voluntarily – which only weakens Egypt’s institutions further.

It is a rather basic facet of modern political systems – the division between the executive, the legislature and the judiciary. This is about the division of power – and the hope that these different parts of the governing structure will hold each other to account. At least, that is the idea – someone ought to remind the Egyptian political establishment of that. Egypt’s institution need to be strengthened through reform – not further weakened through partisanship or incompetence.

Source: Al Arabiya

_______Dr. H.A. Hellyer, non-resident fellow at the Brookings Institution and the Institute for Social Policy and Understanding, previously held senior posts at Gallup and Warwick University. Follow him on Twitter at @hahellyer.