Mursi's dangerous move
In reinstating the People's Assembly judged unconstitutional by the highest legal authority in the land, President Mursi has imperilled one of the foundations of the new republic Egyptians want, writes Mohamed Mustafa Orfy
A shocking and thunderous strike came in the decision of new President Mohamed Mursi to reinstate the dissolved People's Assembly Sunday. Most were eagerly awaiting the announcement of a new Cabinet or what is called the consultative council to the president. Given the chronic nature of the country's problems, such as lack of bread, gridlocked traffic, soaring costs of fuel, and garbage piling in the streets, some were calling for the new regime to be excused if tangible results were not immediate. Others were preparing themselves to take advantage of the possible failure of the president to get any results now or in the future, which would prove that their negative vision of the president was right.
Amidst this tense atmosphere, the new president, perhaps imitating ex-president Anwar El-Sadat in controversy, decided to withdraw legislative authority from the erstwhile ruling military council and hand it again to "the elected parliament" for a certain period of time, perhaps some months, until Egypt's new constitution was near finalised. The Supreme Constitutional Court (SCC), in front of who the president was sworn-in a few days earlier, had judged the People's Assembly unconstitutional, which led to its dissolution a few weeks ago. In a retaliatory and speedy reaction, the SCC affirmed that its verdicts are legally binding on all persons and bodies across Egypt.
Assessments of Mursi's move differ across various political factions. But this "topsy-turvy" action has shaken the relative stability the Egyptian population enjoyed in the last few days, after having suffered for a year and half a state of general political instability. Society has again been torn, divided between those for and against the move. Definitely, there will be legal and political debate at length, but hopefully this will not hinder the need of Egyptians to unite, hand-in-hand, to face the great challenges ahead in almost every field in daily life.
Simply put, those who are against the action see the president as not authorised to contest or overturn the verdict of the highest legal body in Egypt. The rule of law, they argue, should prevail in all cases in the new Egypt; it would be a very negative precedent to defy or violate this principle by delegitimising or emptying the SCC ruling of its content. Conversely, those for the move claim that the dissolved parliament, even in the case that it is partly unconstitutional, is more legitimate than the military council in the conduct of legislative duties. Also, the freely elected parliament -- and there no doubt about that -- is more reflective of the people's will, regardless of questions about the laws under which the electoral process was conducted. Added to this, people should not bear the cost of the mistake of jurists who approved or confirmed the legality of the whole electoral process a few months ago.
Faced with this ambiguous situation, it is worth to remember once again the dilemma that has prevailed for centuries, unresolved, about which should be given the precedence, politics or the rule of law, in determining the destinies of nations. For long, politicians always claimed that they are, necessarily, the most capable and experienced ones to decide the "common good of the nation" and its priorities. Then, and only after this, came the role of jurists to legalise decisions with a lawful brush, no matter whether the original action fitted the essence of law or not. So, just as law could serve the "good," it would also "legitimise" falsehood.
By contrast, the jurists and scholars always argued that the legitimacy of any "political decision" was to be derived from its consistency with the prerequisites of law, and not vice versa. If a political decision aimed at realising or enhancing the common good, it would not necessarily exceed the basic boundaries of law and its indispensable role in controlling interactions between the different forces of society. Thus, it is no coincidence that the most advanced countries, like the United Kingdom, Canada and the United States, are the ones who have fully adhered to the rule of law internally, regardless of its positive or negative consequences in the political arena. With exception of those advanced and most developed countries, it seems the intertwined factors of political calculation and the necessities of law constitutes a headache in the minds of political elites in many places in today's world.
In an attempt to get out of the dark shadow of this current crisis, Egyptians should form a national consensus about three points that could serve, altogether, as a safety net. First, the newly elected president should enjoy full support from various layers and forces of society, no matter their loyalties and affiliations. This doesn't preclude the right to oppose, in a legitimate way, whenever necessary, his decisions. Second, we should recognise that we have passed through a very tough transitional period, with all its rights and wrongs, and perhaps we are paying now the price of mistakes made, some unintentionally. However, we must remember that we have passed it peacefully, at the end of the day, without having jeopardised the safety of Egypt or fallen in the pattern of other horrific regional experiences.
Third, and perhaps most importantly, what has to be fully recognised is that the rule of law should not be compromised at any expense; otherwise, we shall open the door to chaotic winds that could blow away the foundations of the new republic we're trying to build.
Doubtless, two wrongs do not make one right.
The writer is an academic.