The Egyptian constitutional court on Thursday threw the Egyptian Revolution for a loop. There are howls of outrage about a soft coup, or a counter-revolution. The specter of Algeria haunts the Nile Valley this morning. But more likely we are seeing a replay of Turkey 1997. Either way, the remnants of the old regime of Hosni Mubarak, derisively called fuloul or ‘leftovers’ in Arabic, are trying to make a comeback.
Two issues were before the court. The first concerned the parliamentary elections of November-December 2011. The electoral law had set aside a third of seats for independents, in an effort to avoid dominance of that body by well-organized remnants of the regime of deposed president Hosni Mubarak and by the even better-organized Muslim Brotherhood.
In fact, many “independents” who ran and won had the backing of the parties, especially the Brotherhood’s Freedom and Justice Party and the Salafi Nur Party.
The court found that the parties had subverted the intent of the law, and in so doing had invalidated the entire elected parliament. It ordered that parliament be dissolved and new elections held.
About 46 percent of seats in the parliament were held by the Muslim Brotherhood party, and another 24 percent were captured by the hard line fundamentalist Salafis. This outcome may well have been a fluke. Voters appear to have been trying to ensure that the Mubarak regime did not reestablish itself, so they put the fundamentalists in the parliament. But when the parliament predictably began making noises about banning alcohol and swimming suits, the public reaction was negative. While the fundamentalists will do well in any free and fair election, it is not clear that they can repeat their dominance of parliament so handily.
There is certainly a case to be made that the Muslim Brotherhood behaved badly. Its leaders knew what they were doing when they ran candidates as “independents.” Once it got a working majority in parliament, the Brotherhood gave every evidence of seeking to make itself the one party in a new one-party state. It tried to stack the Constituent Assembly charged with writing a new constitution with its members. And, after promising not to run a presidential candidate (so as to reassure the electorate that it wasn’t trying to dominate both the executive and the legislature), its leaders abruptly changed their minds and put up a presidential candidate. Moreover, the man they put forward, Khairat al-Shater, is an allegedly corrupt businessman whose corruption cases caused him to be ruled ineligible. The Brotherhood was charged with using its dominance of parliament to dole out patronage to relatives of its MPs and officials.
The court found that the laws passed by this invalid parliament would stand unless any of them was successfully challenged on constitutional grounds.
The other issue before the court was a law excluding members in the last two Mubarak cabinets from running. That law would have excluded Gen. Ahmad Shafiq, one of the two current presidential candidates and the favorite of the military establishment.
The court found that the political exclusion law was worded in an arbitrary and unfair manner, and so found it unconstitutional.
As a result, Ahmad Shafiq can run for the presidency against the Brotherhood candidate, Muhammad Mursi (an engineer trained at the University of Southern California).
Given that there is neither a parliament nor a constitution, and given Egypt’s tradition of strong presidential rule, whoever wins the elections scheduled for early next week could be extremely powerful. He will almost certainly have an outsized say over the final shape of the Constituent Assembly that will write the new constitution. And, he might well be able to set new rules for the next parliamentary elections that will shape that body.
If the winner is Ahmad Shafiq, the likelihood is that he will revive the secret police and censorship practices and attempt to forbid demonstrations, taking Egypt back to the pre-revolution status quo. If the winner is Mursi, he is likely to attempt to use his vast powers to promote his fundamentalist vision of Egyptian society. He, however, will face checks and balances from the largely secular military.
The military has more or less declared martial law, a troubling estate in which to have a democratic election.
Still, the court’s rulings do not necessarily amount to a restoration of the ancien regime. If the new president calls early parliamentary elections, it is unlikely that the Brotherhood and Salafis can be completely marginalized if the elections are fair. Shafiq had pledged to appoint a fundamentalist prime minister from the Brotherhood if he won the presidency, and he may well try to soothe raw nerves in this way. It would also be a way to split the Brotherhood from the New Left.
The Egyptian left, moreover, is resurgent. Nasserist candidate Hamdeen Sabahi did very well in the first round of the presidential election in May, and very nearly got into the run-offs. The leftists might well be able to assert themselves as a credible parliamentary bloc if they actually try this time to do parliamentary politics.
One danger of the court’s decision is that it could push the Muslim fundamentalists to take up arms and engage in guerrilla actions. Millions of their votes, after all, have been invalidated, which could make a person angry. In 1991, the Algerian military dismissed parliament and cancelled the results of the election, throwing the country into a 15-year civil war between the secular military and the disappointed fundamentalists in which as many as 150,000 persons were killed.
The Algeria scenario is, however, unlikely in Egypt. The Muslim Brotherhood has been playing politics in the framework of the military regime since about 1978, and likely its politbureau will view the court ruling as a temporary setback. They have proved they can get out the vote, and have a shot at either dominating any new parliament or being indispensable coalition partners. Moreover, if he wins, Shafiq may actually be canny enough to give them the prime minister posting (which is not very powerful in a presidential system) and some cabinet seats.
The New Left will likely be galvanized by a Shafiq victory. They had become one-note johnnies with their Tahrir demonstrations, which alienated a lot of Egyptians from them, and they need to widen their political repertory and try to win seats in parliament. They won’t see it this way, but the court ruling has given them a second chance at winning some serious representation in the legislature.
If the courts and the Supreme Council of the Armed Forces (SCAF) imagine that they can put the revolutionary genie back in the bottle, they are likely to find themselves sorely disappointed. The Egyptian people have thrown off the jackboot and the secret police, and they don’t have to put up with these things if they do not want to. In 1997, the Turkish military made a soft coup against Muslim fundamentalist prime minister Necmettin Erbakan and his party was declared incompatible with enforced Turkish secularism. His party, however, reformulated itself as the AKP or Justice and Development Party, and went on to win the 2002 elections. It is still in power a decade later, and it has gradually put constraints on the secular military. Long-term victory and acquisition of authority is through the ballot box.
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