Egypt’s Constitutional Coup

After taking power following the ouster of Hosni Mubarak on February 11, 2011, Egypt’s military council governed the country until an official handover of power to civilian forces on July 1, 2012. Many analysts, however, are skeptical of the claim that the military is now out of politics, and even skeptical of the thought that the military ever intended to leave politics. These analysts, among them Nathan Brown of George Washington University, Shadi Hamid of the Brookings Doha Center, and Steven Cook of the Council on Foreign Relations, argue that the actions of one week in particular exposed the military council’s true intentions. In the week leading up to the presidential runoff election on June 16-17, these scholars contend that the military council pursued a series of controversial last-minute attempts to maintain some degree of control over the country beyond the scheduled handover of power.

On June 13, 2012, just three days before the run-off presidential election between Mubarak’s last Prime Minister Ahmed Shafiq and Muslim Brotherhood candidate Mohamed Morsi, the Minister of Justice issued a decree essentially reviving the hated emergency law (its withdrawal was among the primary demands of the revolution). This decree, which came into effect the next day without any consultation with the democratically-elected parliament, grants the military intelligence and military police the power to arrest civilians until a new constitution is adopted.

The next day, the Supreme Constitutional Court (SCC), historically considered a bastion of independence and a defender of reform, issued two politically-charged decisions. The first struck down the newly-elected parliament’s political isolation law, which would have banned leaders of Mubarak’s regime from politics for ten years. The SCC’s decision thus cleared the way for Ahmed Shafiq to run cleanly in the run-off presidential election two days later. The SCC’s second decision struck down the parliamentary electoral law and thereby dissolved the Brotherhood-dominated parliament. While the rationale for the decision was legally sound, and the SCC had struck down electoral laws under Mubarak as well, the timing of the ruling is suspect. Previous decisions to strike down such laws occurred almost 4 years after the election itself, by which time MPs had nearly completed their terms. The earlier decisions also required a popular referendum to dissolve the parliament. The head of the Judges’ Association, Ahmed Al-Zend, explicitly noted that the SCC is now taking a political role, a sure sign of the end of the judiciary’s impartiality.

Then, on June 17, when early returns indicated a win for Brotherhood candidate Mohamed Morsi in the presidential run-off, the military council issued several amendments to the constitutional declaration. The amendments granted the military junta legislative power in light of the dissolution of parliament, and also gave it the power to appoint a committee to write the new constitution in case the current parliamentary-elected committee “encounters any obstacle that would prevent it from completing its work.” With regards to the new constitution, these amendments also grant the SCC the power to strike down any clause which it deems “in opposition to … the common principles of Egypt’s past constitutions.” Finally, the amendments limit the powers of the new president, stipulating that he must receive the military council’s permission before making a declaration of war or using the armed forces to quell internal unrest.

The military council’s measures to consolidate its power yet doing so through legal and judicial channels have led many to dub them as part of a “soft” or “constitutional” coup. Or as Brown put it: “[S]ome Egyptians will likely wonder if they are in any ‘transition process’ at all. That concern is justified. The ‘process’ part was already dead. Now the ‘transition’ part is dying.”