Judicial coup in Egypt

In the second round of the first post-revolutionary presidential elections, there are two options left -- both highly unattractive to many Egyptians. The first candidate is Ahmed Shafik, the last prime minister under the previous, ousted President Hosni Mubarak, who is seen by liberals, leftists and Islamists as a representative of the old regime who is backed by the army. Many fear that as president Shafik will do everything to destroy the achievements of the revolution that toppled Mubarak last year. The other candidate is Mohamed Mursi, one of the leaders of the Muslim Brotherhood (MB), whose political wing currently occupies almost half of the seats in the recently elected parliament. His candidacy is controversial because the same liberals and leftists, as well as a big part of the old establishment, are afraid that with the MB in charge of both parliament and the presidency, Egypt’s future will be dominated by political Islamists who are not known for their tolerance of other ideologies and lifestyles.

So the Egyptians face a dilemma that is as big as the one that Greeks are struggling with: Vote for Shafik and run the risk of returning to a Mubarak-style authoritarianism with the armed forces in an untouchable position, or vote for Mursi and possibly turn Egypt into a country run by uncompromising religious radicals.

Last Thursday, Egypt’s Supreme Constitutional Court, a panel of judges appointed by Mubarak, made two rulings that have added yet another perspective to the elections. A political exclusion law that banned those from the last two Mubarak cabinets from running for office was found to be unconstitutional, thereby saving Shafik’s candidacy. Although many observers don’t like the military establishment’s favored candidate, they can live with the court’s conclusion. If Shafik had been forced to step down two days before this weekend’s elections, it would have created chaos and a situation of political limbo would have been extremely difficult to handle.

The court’s second ruling has seriously derailed the transition process. The electoral law, on which the November-December 2011 parliamentary elections were based, had set aside a third of the seats for candidates who were unaligned with any political parties. In the end, because many of these independents were found to have been backed by parties, the court declared that the parties had subverted the intent of the law and subsequently invalidated the entire elected parliament. It ordered parliament to be dissolved and new elections to be held.

Unsurprisingly, the MB, the winner of the parliamentary elections, was furious. Mr. Mursi called on the army, seen by many as the main force behind this controversial decision, “not to allow the hyenas of darkness to come back.” One of the leaders of last year’s revolution admitted that he and his colleagues had been naive in trusting the generals. The roots of the ruling elite, he said, as quoted by The New York Times, were “much deeper and darker” than they initially thought.

Foreign observers judged the court’s rulings harshly. Nathan Brown, an American specialist on Egypt’s judiciary who had earlier warned about the malfunctioning of the Egyptian legal system, concluded: “What was beginning to look like a coup in slow motion is no longer moving in slow motion.” Marc Lynch, an influential analyst and blogger, tweeted: “So basically that’s it for Egypt’s epic screw-up of a transition. No parliament, no constitution, [a] divisive presidential election.”

In an interesting comment, Juan Cole, another informed American blogger, compared the latest developments in Egypt to the events in Turkey on Feb. 28, 1997, when the army overthrew Prime Minister Necmettin Erbakan and his party because they were considered to be a fundamentalist threat to Turkish secularism. I would also add that there are similarities with the situation in Turkey before 2009 as well, when the Turkish Constitutional Court and the army did their utmost to frustrate efforts by the ruling Justice and Development Party (AKP) to reform the country, thereby undermining the power base of both institutions representing the old Turkish elite.

I agree with Cole that ultimately, as in Turkey, the Egyptian deep state will not be able to put the genie back in the bottle. What they can do is slow down and thwart the process of democratization and modernization. That is what happened last week.