Egypt: the deep state resurgent

Egypt's incoming president will enter office without a parliament to oppose him, with a military empowered to arrest and court-martial civilians at will, and a constitution based on that of the Mubarak era. 

Tom Dale
16 June 2012

Egypt's stomach churning politics have taken another double barrel twist and dive.

In the last twenty four hours, just two days before polls open for the final round of Presidential elections, three important things have happened.  I'm mostly going to discuss the third of these, but the first two provide some context.

Firstly, the Justice Minister granted the military rights to arrest civilians, and try them in military courts.  This was one of the most important features of the hated Emergency Law, which persisted throughout Mubarak's tenure, and expired just two weeks ago, on May 31.

Secondly, a Supreme Court ruling allowed Mubarak's former prime-minister, Ahmed Shafiq, to stay in the race for the Presidency.  This was probably a reasonable legal decision: although a law was recently passed by parliament which would have banned him as someone who had served under Mubarak in the past decade, this violated the principle that laws should not effectively target individuals under the guise of a more general application.  According to a senior Muslim Brotherhood source, “Deep down, nobody is expecting Morsi to win; it has become very clear that the SCAF is supporting Shafiq.”

Thirdly, the Supreme Court dissolved parliament.  They ruled that the elections law which allowed parties to stand candidates for the one third of parliamentary seats which are filled by individual, first past the post elections, is unconstitutional.  It appears (although they didn't specify) that the Supreme Court relied on Article 7 of the constitution, which says that citizens “are equal in rights and general duties.”  The idea, apparently, is that if parties run for the individual seats, non-party individuals won't get a look in, and are therefore discriminated against.  It's worth quoting an Al Jazeera piece on this:

“This point of view was actually upheld by the court twice under the Mubarak regime, in 1987 and 1990. Both times, the court dissolved parliament. But the principle of equality between independents and political parties is still hazy and not defined in the existing post-revolution constitution, leaving room for maneuver.” 

However,  the Egyptian legal system is not based on common law, but rather on the French civil law model.  With the caveat that I'm not a lawyer, this should mean that precedents, such as those of 1987 and 1990, are less important than direct deductions from the letter of the law.  And given that there is no legal reference to the category of the 'independent' in the constitution at all, the judgement seems pretty suspect.

But, of course, none of this is what really matters.  This is about force, pure and simple.  One of my recent blogs was about the 'deep state' – the old networks of Mubarak-era and military appointees who still hold office.  Judges appointed by Mubarak allowed Shafiq to run, have acquitted dozens of police officers charged with killing protestors, and acquitted Mubarak's sons and the Interior Ministry deputies of wrong-doing a fortnight ago.  Now, they have dissolved parliament.

If the legal judgement is unsound, it mostly means that this step is more crude, bold and confident than it would otherwise seem.  Egypt's incoming president will enter office without a parliament to oppose him, with a military empowered to arrest and court-martial civilians at will, and a constitution based on that of the Mubarak era.

The judgement is a clear blow against the Muslim Brotherhood, for two reasons.  Firstly, because their popularity at the polls has declined since the original parliamentary elections took place between November and January.  In those elections, they took 37.5 per cent of the vote, in the first round of the Presidential elections, just 24.8 per cent.  It is likely, therefore, that a re-run, even under the same rules as previously, would hurt their standing in the polls.

Secondly, the change in the rules will themselves hurt the Brotherhood.  Nearly half of the Brotherhood's seats were won through the first-past-the-post (FPTP) 'individual' seat elections.  FPTP elections everywhere in the world exaggerate the strength of the post powerful, best organised, and best funded bodies.  Yet, under the new dispensation, the Brotherhood will find it difficult to bring its organisational power fully to bear. 

The informal networks of the old National Democratic Party (NDP) still exist however, and because they are not an official party, the law does nothing to impede their ability to stand candidates.  What is more, making elections an individual, not a party, matter, discriminates in favour of the wealthy – those with the money to fund campaigns from their own pockets, or those of their friends.  What is more, since the revolution, the size of constituencies has been increased: this, in turn, increases the amount of resources required to campaign for a seat.  All of these things discriminate in favour of the felool – the remnants of the old regime.

Combined with the potential election of Shafiq, and the return of military trials, it doesn't look good.  For the Brotherhood, for the revolutionaries, for just about everyone in Egypt, one way or another, the struggle continues.

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