The installation by the military, the only cohesive and disciplined force in post-Mubarak Egypt, of an interim president, Judge Adly Mansour, the Chief of the Supreme Constitutional Court, is a fait accompli.
This fait accompli is not yet accepted by the Muslim Brotherhood which calls the events of July 3 a coup, refuses to join the post-Morsi government headed by a judge, and sneers at the new authority as a bunch of "usurpers." The divisions within the Egyptian body-politic, which this blog had previously analyzed, have deepened. Egypt's stability is threatened.
The specter of intensified armed confrontations between the supporters of the so-called "legitimate" and freely-elected President (now under house arrest) and his opponents numbering 23 millions in all public squares in Egypt is a distinct possibility. Who is right, and who is wrong, are questions which shall be debated, if not settled, for a long long time.
Here follows my own personal debate with myself as if I were two Yassins: Yassin the lawyer v. Yassin the professor. The lawyer is on the side of applying the mechanics of the law; but the professor is applying the dictates of fairness. The law is written, transcribed, objective, and conventional. Fairness is subjective, controversial, debatable, and inchoate. Fairness has to do with values. The professor in me sides with General El-Sisi who led the military ouster of President Morsi. WHY?
Let us start with the defects of definitions in order to lead us to the dilemma of realities. No credible dictionary has ever offered a consensual definition of any of these three terms: democracy, aggression, and terrorism. Customary law and practices vary from one political culture to another, giving each of these terms subjective definitions.
Since we are here dealing with the concept of democracy, let us raise the question of the presidential elections in the US in 2000: Bush v. Gore. In my estimation, as both a lawyer and a professor of law, I find the 5-4 decision of the U.S. Supreme Court stopping the State of Florida from the vote recount a subversion of the democratic process. It gave Bush, thanks to the vote of Justice Sandra O'Connor which tipped the scale, an unmerited presidency.
That vote has changed the course of history. It led the U.S., after 9/11, to two wars: in Afghanistan and in Iraq. That slippery slope also led to the histrionics of legal advisers, such as John Yoo, who devised for the pinnacles of U.S. power, voodoo "laws," setting aside the Geneva Conventions of 1949. In effect, these so-called "laws" indirectly enabled world-class criminals such as Bin Laden to claim, with some unmerited justification, that their criminality has duped the U.S. into immersing itself in the so-called "war on terror." It took the U.S. 12 years before declaring through President Obama that that "war" was over. It was a declaration of fatigue.
This historic lesson in the imprecision of defining democracy leads Yassin the lawyer to look at how Morsi came to be President of Egypt. After 60 years of military dictatorship, Mubarak was removed from power in February 2011, thanks to the armed forces. They protected the massive demonstrations in Tahrir. As a lawyer, I would insist that you do not hold presidential elections before you draft a constitution and have it ratified by at least a legislative power. In Egypt, this was not done.
In its rush towards populism, Egypt voted, some say unfairly, for Morsi as President. He was not even the first choice of the Muslim Brotherhood. This was done without a charter defining the powers of the three branches of Government (legislative, executive, judiciary). The cart was thus placed before the horse.
This was followed by another set of legal defects. The judiciary dismissed the lower house of Parliament claiming that one-third of its membership was voted wrongly into office as party representatives. That quota had been reserved for independents. Why not disqualify only that one third, and why did the judiciary which was charged with electoral supervision not stop the vote? It did not happen. And the judiciary at that point was not yet governed by now constitutional provisions. The whole process was plagued by one ad hoc measures, one after another. The pre-Morsi constitution was the only available charter resorted to as expediency dictated. The Morsi presidential advisers were in the mold of John Yoo in regard to the Bush administration.
With 70% of the membership of the House of Representatives belonging to the Muslim Brotherhood and the Salafis (50%; 20% respectively), the Islamists lambasted the judiciary (the Supreme Constitutional Court) as "Folool" (remnants of the defunct Mubarak regime). On this chaotic stage, strode President Morsi with an activism of his own. He instructed the Speaker of the House (Mr. Al-Katatni, a senior member of the Guidance Council of the Brotherhood) to convene the dissolved House in open defiance of judicial rulings. The war between the two camps, the President and the Islamist-dominated House of Representatives, on one side, and; the judiciary on the other side, was now in full swing. It was a war in which the secularists sided with the well established and highly professional judiciary.
The House of Representatives met for only 20 minutes then adjourned. That was enough time to transfer its law-making authority to the President. Thus, Morsi, without Constitutional sanction, became both the head of the Executive and the law-maker at the same time. The declaration that ensued to the effect that that accumulation of power was transitory convinced the opposition that the dictatorial President was marching to the orders of the Brotherhood. Morsi, with no experience in governance, confirmed the worst fears of the secularists. On Nov. 22, 2012 Morsi issued a so-called "constitutional declaration" putting himself above the law. The opposition screamed foul. Nobody listened. Absolute power was corrupting absolutely.
The experimentation with democracy was proceeding in the wrong direction. Following the Nov. 22 "constitutional declaration," Morsi became faced with a strengthening wall of rejection. It was diverse, secular and determined. His opponents were bolstered by Al-Azhar, the Coptic Church and the elements of creative Egypt (the arts, the theater, the film industry, the world of song, dance and music of cosmopolitan Egypt). Later that dictatorial declaration was withdrawn, but the damage had already been done. Nobody knew where the cart leading the horse was going. Compounding the legal problems, Morsi's arrogated legislative powers were transferred to the Senate (the Shura) of which one-third were Morsi's appointees, pending the holding of parliamentary elections for the House of Representatives.
These elections did not take place. They were deferred until after the Constitutional Assembly, also dominated by the Islamists, had finished its drafting of the post-Mubarak constitution. That Assembly became also infected with endless confrontations between the Islamists who wanted an Islamic State, and the secularists who struggled to keep Egypt a secular State. The casualty became the art of compromise in which neither the Brotherhood nor Morsi were trained.
Most of the more than 250 articles of the new Constitution were presumed to have been agreed. But other articles defining the character of the new Egypt remained contentious. Suddenly the opposition called it quits; walked out of the Chamber. Without hesitation, the Islamists took advantage of that situation and got their own version of the controversial articles approved. The document became rightly known as "the Islamist Constitution." What was the hurry in rushing that charter through a rump Constituent Assembly? Fear by the Islamists that the judiciary would strike again and dissolve the Constituent Assembly.
Morsi and his Qandeel Government were desperate to get that text approved in a hurriedly arranged plebiscite. It became clear to the opposition that the Islamists were engaged in a zero sum game which precluded any meaningful compromise.
The Islamists were deceived by the power of their numbers, not realizing that a large segment of the voting Egyptian public could not even comprehend most of those constitutional articles. I was in Cairo in December 2012 when the plebiscite, in two stages, was conducted. The turn-out was low; Egypt was divided; the Islamists were triumphalist; and the document by the end of 2012 was declared the law of the land -a divided land with a Constitution lacking the consensus of the populace.
The presidential calls for a dialogue with the opposition were premised on "let us go forward with what we got now." The opposition turned deaf ears to what they regarded as a constitutional charade. They wanted a new beginning. The experiment in democracy, whatever that meant in the context of Egypt of the Arab Spring, was showing signs of a deepening malaise. As of the end of 2012, Egypt was rudder-less; the Islamist chants all over Egypt was "Islamiah" (meaning an Islamist Egypt). That term replaced the slogan of the January 25 Revolution of "Selmiah" (meaning peaceful).
Now to Yassin, the professor dealing with higher values of governance and the inchoate notion of fairness. Morsi has inherited huge burdens. Egypt was economically broke; the IMF would not agree to loaning the country close to $5 billion; unemployment surpassed 60%; goods and services were not being delivered. Bread, electricity, cooking oil, gas, diesel fuel and other basic commodities were in short supply. The police was not yet re-organized; the Suez Canal cities had to be subdued by emergency laws; the rate of crime shot up; the young authors of the January 25 Revolution were side-lined. Tourism dried up; various unions went on strike; rail travel was interrupted.
Journalists were being hounded by the authorities for articles putting the new Egypt in bad lights, jewelers emptied their stores of gold for fear of robbing; each neighborhood had its vigilantes guarding its persons and property; some large cities declared themselves "independent Islamic Republics." "L'Institut" of Egypt, the repository of its historic past, which was established by Napoleon in the early 19th century was torched.
In the meantime, the "Brotherization" of Egypt accelerated; 13 out of 27 provincial governors were members of the Muslim Brotherhood; and Luxor, the capital of Egyptian tourism, had a governor, Mr. El-Khyyat, a Salafi, who had been implicated in the bloody murder of foreign tourists in pre-revolutionary days. His appointment was like putting Ayman El-Zawahri of Al-Qaeda in the position of the Mufti of Egypt. Egypt's great monuments, like the pyramids, and the Sphinx, were declared by some Islamists pagan idols; the statue of Um Kalthoun, the pan-Arab lady singer, had its face veiled; and women were frightened to take part in demonstrations for fear of sexual harassment and rape. The police had disappeared.
Sectarianism reared its ugly head in Egypt all over the country. Islamist incitement of violence became common. All kinds of arms flowed from Libya next door. Copts and Shiis were attacked, and several of their congregants were killed; their places of worship were burnt down. Morsi even sat passively during a sermon in which the Shiis were declared "unclean apostates." The call for Muslim prayers sounded in parliament while in session. All sorts of red lines were being crossed by the Brotherhood in total reliance on the results of the 2012 elections. Secular Egypt was fast receding.
The documents of 2011 and 2012 which were issued by Al-Azhar with the imprimatur of the Coptic Church calling for moderation in Islam and respect for minorities remained mere ink on paper. The Coptic question risked being internationalized; the Bedouins of Sinai continued to attack and kill members of the armed forces and the police; and Gazans seemed to look upon Sinai as their hinterland for smugglers of drugs and arms. And foolishly, a meeting held by Morsi with some of the country's leaders on the Nile water issue between Egypt and Ethiopia was aired, carrying threats of attacks on Ethiopia for its construction of a dam on the Blue Nile.
- Wishing a Copt "Happy Easter" began to be frowned upon as unislamic. On that high Coptic holyday, Morsi did not see it fitting to attend at St. Mark's Cathedral as had been the presidential practice;
- The top position of "Rector of Al-Azhar" was coveted by the Brotherhood which regarded moderate Islamic advocacy by that 1040 year old institution as a deviation;
- The Arab Republic of Egypt became more recognizable as the Islamic Republic of Egypt;
- While in Cairo, in December 2012, I witnessed El-Baradie appearing on TV denouncing Egypt's fast descent into dark practices of fabricated values. He pleaded with Morsi and his Islamist minders to "Take Pity on Egypt;"
- President Morsi, adding to himself at times the voluntary role of a preacher at Muslim prayers, began to be seen as an Imam;
- Morsi's interference with security operations against rogue elements of Hamas and marauding Bedouins in cahoots with those elements infringing Egyptian sovereignty was adding to the burdens of the armed forces in El-Arish and Rafah;
- Attempts by those criminal elements in Sinai to sow discord between the army and the police proved to the armed forces that the Hamas and Morsi entente was a looming security threat;
- The Islamic media, through its calls for an "Islamic code of dress," regulation of hours of alcoholic consumption, and differentiation between Muslim and non-Muslim in the great touristic spots on the Red Sea and upper Egypt were sabotaging tourism in Egypt. Qatar was offering to run Egyptian tourism;
- The opposition derided those regulations and measures as socially and economically subversive. It said the authorities were less concerned with the country's infrastructure than with "women's infrastructure;"
- Morsi's utterances about "legitimacy" began to be shrill, rambling, pugnacious, in your face, and sounded to the opposition "putchist." It gave the Morsi concept of "dialogue" the connotations of "my way or else;"
- The presidential palace and the HQ of the Mulsim Brotherhood guided by Khairat El-Shatter began to look interchangeable.
To Yassin the professor, the issue boils down to weighing between "the legitimacy" emerging from the ballot box, and "the fairness" emerging from the dilemma of realities of post-Mubarak Egypt. Put differently, is the ouster of Morsi a coup against "democratic" Egypt, or an impeachment of a President who seemed oblivious to the fact that complex Egypt needed a nuanced productive and inclusive leadership? Is democracy mere mechanics with a universally-accepted standards, or is it a process that needs to mature in an Egypt which has not experienced it except during brief periods in the 1920s?
I vote for the actions taken by the military to remove Morsi from power. He has failed to deliver and has lost the trust of his public -his broad public. Islamic jurisprudence which I teach at Fordham University School of Law in New York City sums up the purpose of governance in two principles: Justice (Adl), and Service benefiting the citizens (Ma Yanfaul Nas). Morsi the Islamist has even failed his presumed standards. What happened in Egypt on July 3, 2013 should be looked upon as a revolutionary course correction. Nominal democracy has ended with the end of his regime.
Under any version of the new constitution, a House of Representatives has the power of impeaching a President. Such body does not exist at present. 23 million Egyptian citizens have filled that void. El-Baradie aptly described that mass action as "voting by their feet."
Many of those voting for Morsi, including me, were not voting for the candidate of the Muslim Brotherhood. They were voting against his opponent, a military man, General Shafik. The score was 50.5% to 49.5%, hardly a landslide for the winner.
The "Islamist" constitution was approved by 22% of an electorate that numbered 53 million voters.
Morsi's defiant speech of July 2 was his last -in effect an abdication speech. The ballot box is a process. Its purpose and substance are good inclusive governance that delivers goods and services. So if you are a devotee of the mere process, you are likely to call the ouster of Morsi "a usurpation." But if you value the substance, you would call it a restoration. Morsi has frustrated the purpose of his contract with Egypt. Frustration of the purpose of a contract rightly leads to its nullification.
The military did not "usurp" Morsi's powers. He and the Brotherhood, who were late in joining the January 25 Revolution, have turned out eventually to be the veritable usurpers. They attempted to usurp the historic character of cosmopolitan Egypt. If they truly want to put Egypt above their ideology and paper-thin legitimacy, they should heed the calls of the interim President Adly Mansour, the former Chief Justice of the Supreme Constitutional Court, to join hands with the new transitional regime to put Egypt back on the right tracks. "Faith is for God: the homeland is for everyone."
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