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Democracy, Democracy, But The Courts Can’t Touch Me

[Protests in downtown Cairo on November 23rd. Image originally posted to Flickr by Jonathan Rashad.] [Protests in downtown Cairo on November 23rd. Image originally posted to Flickr by Jonathan Rashad.]

Through the release of a controversial set of executive decrees, President Mohamed Morsi has granted himself unheralded powers—powers normally reserved for dictators, not democratic leaders. The raft of decrees effectively renders him as “above the law,” meaning that the jurisdiction of Egypt’s courts no longer applies to the Egyptian president, or any of his Islamist-controlled executive bodies—an unprecedented move that not even Hosni Mubarak himself dared to employ.

The promises of democracy, social justice, and transparency in government remain as out of reach right now as they were during the Mubarak era. Egypt’s president holds executive powers and legislative powers (which he usurped based on the dissolution of Parliament last June), and is no longer checked by any judicial authority. Thus any hope of a system of “checks and balances” is now in tatters. Morsi claimed in his speech on Friday that he does not seek to monopolize power. Yet his recent actions seem to suggest otherwise.

The timing of the decrees arrival is no surprise. No doubt buoyed by his elevated status following the Gaza ceasefire, Morsi did what any politician strives to do: ride a wave of public goodwill and use it to advance his own interests.

Morsi declared the upper chamber of Parliament immune from judicial dissolution at a time when the Egyptian judiciary was  widely expected to issue rulings that  would adversely affect the Muslim Brotherhood, such as the dissolution of the upper house of Parliament, the Shura Council, and possibly a declaration that the Constituent Assembly was unconstitutional. Last June, the Supreme Constitutional Court dissolved the parliament’s lower chamber, which was dominated by the Muslim Brotherhood.

More importantly, the decree sets the Constituent Assembly, a hundred-member constitution-drafting body, out of the reach of the courts. The Assembly, which is more than seventy-percent Islamist, has been plagued with problems, most notably fierce criticism of its composition, which is said to favor Islamist political currents. Recently, a majority of the assembly’s non-Islamist members resigned in protest of the dominance of Islamist political groups of the constitution writing process.

While the fate of the Constituent Assembly is unclear, a bleak future awaits in the event that it remains tasked with the drafting Egypt’s new constitution. Already, a tentative first draft of the constitution institutes the entrenchment of religion in government affairs to a level unprecedented in Egypt’s history. The draft constitution gives Parliament unlimited powers of interpretation of sharia, which would be the “primary source of legislation.” In other words, the draft constitution, if ratified, could result in a mode of governance with an extremely conservative Islamist orientation.

By placing the constituent assembly and the Shura Council, along with his own executive decisions, out the reach of Egypt’s courts, Morsi has effectively told the Egyptian people that not only is he above the law, but that he is the law. He has declared these powers for himself based, not on any legal reasoning, but rather the absence of any restraints that could prevent him from taking these decisions.

These moves seem to be geared toward promoting the Brotherhood’s influence inside the Egypt’s judiciary, famed for its non-partisan orientations and independence from political jockeying. The courts have already dealt Morsi multiple embarrassing defeats, including rebuffing his attempt to reinstitute the dissolved parliament. After Morsi had attempted to oust Prosecutor-General Abdel Meguid Mahmoud last month,  prominent judges publicly protested, arguing that the President did not have that authority to do so. Mahmoud, a Mubarak-era figure, is one the causalities of Morsi's latest decrees.

Egypt’s quest for democracy lies in large part within the judicial branch. That the judiciary is only one official body separating Egyptians from complete autocracy puts partisans of the 25 January Revolution in an awkward spot. On the one hand, many of Egypt’s top judges are remnants of Mubarak’s era. At the same time, if allowed to stand, the decree’s “unprecedented assault on judicial independence” would result in inviolable rights that would render any hints of democracy in Egypt meaningless, particularly the right to a fair trial and an impartial hearing. Crucially, it would also mean that there would be no channel to challenge Morsi and the Islamist-dominated constituent assembly and shura council. The judges club has called for the entire judiciary to go on strike, including all judges and prosecutors, until the decree is overturned. Alexandria’s entire court system has already been declared closed. While the courts cannot legally challenge the decrees, having been banned from doing so, an outright challenge such as the strike puts the legitimacy of Morsi’s action in serious question. Besides the strike, the ongoing battles in Tahrir Square will be crucial in the next few weeks.

Now that Morsi has granted himself absolute power, he will no doubt be itching to use it. Meanwhile, the hope for democracy in Egypt will in no small part lie within the fate of Egypt’s third branch of government. 

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