The revolution is at stake
Having carried out blitz-like actions to consolidate its position, the ruling Supreme Council of the Armed Forces should now surrender power to the new president, writes Ahmad Naguib Roushdy
It is common for writers and observers to be filled with joy when their predictions are realised. This did not happen to me when the ruling Supreme Council of the Armed Forces (SCAF) recently moved to rescind its decision, announced early in 2012, to abolish the emergency laws after the Supreme Constitutional Court (SCC) invalidated the so-called "disenfranchisement law" (qanoun al-azl).
My predictions, made in articles in Al-Ahram Weekly this year and in 2011, were that the SCAF would renege on its promises to the young revolutionaries to establish a democratic system and to yield power to a freely elected president and parliament. What recently happened has given everyone the assurance that the SCAF is here to stay, and Mohamed Mursi, the newly elected president, may find that the SCAF, in its interim charter, effectively slashes his power and forms a new committee to write a new constitution that will preserve military interests.
One day before the presidential run-offs, the SCAF dissolved the parliament led by the Muslim Brotherhood, seizing the legislative power and reinstating the emergency laws. These developments were a disaster for the democratic process and a debacle for the youth revolution.
The disenfranchisement law prevented some of ousted former president Hosni Mubarak's ministers from the last 10 years of his rule from running for president in their turn after the revolution. However, the SCC ruled this law to be unconstitutional, as it infringes on the constitutional political rights of those ministers without legal cause.
The court's judgement acted as an excuse for the SCAF to dissolve the People's Assembly, an action it was about to take when the Islamist members of the assembly were considering a vote of no-confidence in the SCAF-appointed Prime Minister Kamal El-Ganzouri, a prime minister during Mubarak's rule, and his cabinet, returning the situation back to that on 11 February 2011, when Mubarak surrendered power to the SCAF.
This blitz-like action by the SCAF to consolidate its power was described by the Brotherhood and the international media as a new, counter-revolutionary coup. In fact, the Brotherhood wrongly claimed the youth revolution for themselves, and in any case it is the second coup carried out by the SCAF, since the latter earlier pre-empted the young revolutionaries from forcing former president Mubarak to resign and establish a civilian government. In anticipation of an angry reaction by the Brotherhood, the SCAF then deployed troops supported by tanks and armoured personnel carriers, along with forces from Central Security, into the streets. The Brotherhood went to Tahrir Square to protest against the dissolution of the People's Assembly, in which they and the Salafis had the majority of the seats.
The Brotherhood should feel chagrined to know that contrary to reported claims by them and some members of the People's Assembly Field Marshal Hussein Tantawi, the chair of the SCAF, did have the authority to dissolve the assembly. This was in his power as head of state by virtue of his position as head of the SCAF, and he was exercising his prerogative to dissolve parliament and to declare the holding of new elections within a certain period of time.
This power has been vested in the head of the state according to all Egyptian constitutions since 1923. In the present case, Tantawi was acting in response to the Supreme Constitutional Court's judgement that annulled the assembly elections because they were based on discriminatory procedures against independent candidates by imposing a one-third quota of the assembly's seats to them and the other two-thirds to candidates from political parties. That was a chance for the SCAF to get rid of the Islamist majority in parliament and to consolidate its own power.
I do not think that the court used the specific language "dissolution of the Assembly". The justices are well aware that they have no authority to do this, since this power is vested in the head of the state, as mentioned above. The court's job is to decide on the constitutionality of the laws and other official actions and then to let the executive branch execute its judgements. The system designed by the SCAF kept the remnants of the old regime in power, but the Muslim Brotherhood and the Salafis won a majority of the seats in parliament and thus put the SCAF into a corner, forcing it to change its tactics. Meanwhile, the Islamists, by voting for the disenfranchisement law, were trying to eliminate Mubarak's ministers from competing with their own presidential candidates.
The disenfranchisement law was applied to cabinet ministers who had served in government over the 10 years preceding Mubarak's ousting, including Ahmed Shafik, who was minister of civil aviation and then the last prime minister appointed by Mubarak before he was ousted. Although Shafik, who was supported by the SCAF, was removed from the list of candidates for the presidential elections, strangely enough the Presidential Elections Commission changed its mind with no obvious reason and allowed him to run after he challenged his earlier removal.
The later annulment of the law helped Shafik to continue his campaign in the run-offs. Surprisingly, Tantawi sent the law to the Supreme Constitutional Court to look into its constitutionality even though he had himself promulgated it without vetoing it. He could have saved himself from criticism by refusing to promulgate the law and sending it back to parliament for a second vote. If the law had been voted on again with a special majority, it would have automatically been applicable. Then Tantawi, and all those who were excluded, including Shafik, could have challenged the law's constitutionality before the SCC. The field marshal seems to have received poor legal advice from the SCAF's advisors.
However, what has been missing in the interpretation of the court's judgement was that once the law had been considered unconstitutional, the presidential elections and the run-offs should have been invalidated as they infringed on those ex-ministers' political right to run for public office. Some argued that those ex-ministers had not, excepting Shafik, been in the race for president when the law was approved by the People's Assembly. But there was no way to know whether some of those ministers might have been considering running for president before the law prevented them from doing so.
Once Tantawi had sent the law to the SCC, the presidential elections should have been postponed until the SCC had rendered its judgement. Once the law had been annulled, it should have meant that the results of the presidential elections should have been annulled too, in application of the legal rule that something based on an annulled action should also be annulled. This would have opened the door to new presidential elections -- an unacceptable result for the members of the People's Assembly, the SCAF and the two candidates in the runoffs, but all of them would have been responsible for it.
While the supporters of Shafik were jubilant that their candidate was going to be allowed to stay in the race, as he might then have a chance to win and establish a secular government, it was reported that the Muslim Brotherhood was furious and considered the court's judgement to consider the parliamentary elections unconstitutional as being a new coup designed to continue the military influence on the government and expose them to the same oppressive practices they had faced during Mubarak's rule.
It should also be born in mind that without a new constitution that defines the president's powers, and without a parliament, the whole process was like "electing an 'emperor' with more power than the deposed dictator. A travesty," in the words of Mohamed El-Baradei, former head of the International Atomic Energy Agency and Nobel Prize laureate, as reported by David Kirkpatrick in the New York Times in June.
For this reason, the new constitution should have been promulgated before the presidential elections and even before the parliamentary elections. The definition by the SCAF in its interim charter of its powers and the powers of the president was an undemocratic action and an unconstitutional one. This should have been left to the committee set up to draft a new constitution, before presenting the latter to popular referendum.
The SCAF, holding the power of the executive branch of the government, has thus also become the legislature until a new assembly is elected. It also made sure in its interim charter to revisit its principles of last year, seeking to include these in the new constitution without a popular referendum. This would help to ensure that its commercial empire and the defence budget would be protected from scrutiny by the People's Assembly. The SCAF has also asserted that the military should always have a part to play in governance even after a civilian government takes over. Furthermore, the SCAF has reserved the right to appoint the defence minister.
The gap in the relationship between the SCAF and the Muslim Brotherhood widened after the Presidential Elections Commission, which included judges appointed by former president Mubarak, postponed its announcement of the results of the presidential run-offs. The Brotherhood described this as an attempt to declare Shafik the winner. In addition, Shafik's campaign organisers accused the Brotherhood of forging one million ballot papers in order to win the elections. The Brotherhood, after calling for a popular protest against the military, gathered thousands of its supporters in Cairo's Tahrir Square and threatened to continue protests if its presidential candidate was not declared the winner and if the People's Assembly was not reinstated. It thus intensified the power struggle with the SCAF, and a showdown between the two seemed unavoidable.
However, behind the scenes the Brotherhood was playing a different game. It accepted the SCAF's offer to negotiate to reach an acceptable solution to the stand-off, in which it showed some flexibility by accepting limited public scrutiny of the defence budget and working with the military to manage defence matters, the continuation of the military's commercial empire and the granting of immunity from prosecution to SCAF members. All this was done in return for the reinstatement of the dissolved People's Assembly and the declaration of Mursi, the Brotherhood candidate, as the new president.
Yet, the SCAF refused to reinstate the parliament, so the two sides failed to reach agreement. These developments demoralised the young revolutionaries and ended their aspirations for democracy and freedom. There have been reports that some of the revolutionaries have also recently been arrested by the military.
The latest actions by the military and its secret negotiations with the Brotherhood have been a huge disappointment for the young revolutionaries who rose up on 25 January 2011 against Mubarak, the "new Pharaoh", as he was then called. They realised, though too late, that toppling Mubarak was not enough. He was, as I depicted him in the Weekly on 16 March 2012, just "the head of the octopus". In order for the revolution to succeed, the octopus's rotten body, being the authoritarian and corrupt military regime that has been suffocating the country for 60 years, must also be destroyed, along with its remnants and cronies.
Unfortunately, the revolutionaries were too naïve. They trusted the promises made by the members of the SCAF when they met the SCAF representatives after the ousting of Mubarak to protect the revolution and to establish a democratic system. Many of them have been subjected to oppression, arrest, torture, or imprisonment, as has been reported since.
The revolutionaries also allowed the Muslim Brotherhood and the Salafis to take over the revolution and to claim it for themselves. The revolutionaries found that the presidential run-offs were between two conservatives, Shafik, the prime minister at the end of Mubarak's rule who did not promise a real democracy, and Mursi, the Brotherhood candidate, who, it has been reported, has declared that he wants to establish a new Islamic caliphate with Jerusalem as its capital, meaning that he would be the caliph of all the Muslim countries.
Mursi has not said how he will achieve these things. In order to make Jerusalem the capital, he would have to go to war with Israel, a matter which would be prevented by the SCAF, according to the new interim charter which reserves to the military command the authority to declare war. The SCAF would be unlikely to support any such moves on Mursi's part, in order not to tarnish its relationship with the United States, a staunch supporter of Israel and a large contributor to the Egyptian defence budget.
Mursi apparently later changed his mind and promised to rule under secularist rules. The announcement by the SCAF last Thursday, calling on people to accept the rule of law no matter who wins the run-off elections, was interpreted by the Muslim Brotherhood and many others to mean that Shafik would be declared the winner. That polarised the already flammable political scene. However, as explained above, the Brotherhood accepted a deal with the military and sold the revolution out for pennies.
I believe that the young revolutionaries were responsible for a large part of this debacle. Many observers, myself included, have noticed that the young revolutionaries had no plans to participate in the new political process, and few of them ran in the parliamentary elections. Having risen up to bring about change, they should have planned to do it themselves, like US President Barack Obama when he was running for president of his country in 2008, whose famous campaign slogan was "yes, we can".
If lack of funds to cover the costs of the campaign was an obstacle, they had a year and a half to make themselves visible to the public and to solicit contributions. That is what Obama and other former US presidents have done, and what he and his multi-millionaire Republican competitor Mitt Romney have been doing for the US presidential elections in the autumn. The result is that the revolutionaries' organisers failed to stop the Muslim Brotherhood, or the old military regime, from hijacking the Revolution. What is the use of being the spark of the Arab Spring and even for the Wall Street occupiers in the United States and protesters in other countries, if the Egyptian revolutionaries did not plan to lead the government after their uprising?
I would hope that the young revolutionaries now take advantage of the decree by the SCAF to dissolve the parliament and move to establish a new political party to participate with a positive programme to establish democracy, freedom of opinion and the press, freedom of religion and equality, and to reform the economy, thus establishing a real civil society in fulfillment of the aspirations they rose up to pursue. They have four years from the day the newly elected president takes over to participate as members of the parliament in enacting laws that could reshape Egyptian society and prepare for the next presidential elections. It will take time and effort, but let them start now.
Can we expect a new revolution? If the members of the SCAF do not yield power to the civilian government after the elections of the new president and the formation of a freely elected People's Assembly and insist on retaining the upper hand, many believe that a new revolution could erupt, this time involving violence. A lot of blood could be shed, and United Nations intervention might be required to save the revolutionaries. As I have suggested in a former article in the Weekly, the SCAF members have not been reckless enough to allow this to happen. They should now wisely move to yield power to the new president, in order that he may govern democratically and in accordance with the rule of law.
I hope I am not wrong, though no one can guarantee the outcome of present circumstances. If I am right, I will not regret it this time.
The writer is an international lawyer.