Egyptian secular parties and independent politicians with either a liberal or leftist orientation have decisively lost the first major political battles of post-Mubarak Egypt. In the recent parliamentary elections, they only managed to secure a measly 25 percent of the seats in the People’s Assembly and a truly dismal 15 percent in the Shura Council. And they only initially secured about 40 seats in the 100-member Constituent Assembly, elected by the parliament to draft the constitution. (The present situation is difficult to ascertain because the majority of non-Islamist members appears to have withdrawn, the Islamists have offered to withdraw ten of their participants to make room for more non-Islamists, but it is not clear what has actually been implemented.)

Defeated politically, and with few prospects of electoral victories in the near future given their fragmentation and lack of on-the-ground organization, secular parties and independent politicians are now turning to the courts to reverse the outcome of the elections. They have filed two lawsuits that challenge, respectively, the election law on the basis of which the parliament was elected and that of the Constituent Assembly elected by the parliament. The two law suits, filed in the Administrative Courts, are likely to end up in front of the Supreme Constitutional Council. Whatever the legal merits of the cases, there is no doubt that this is a highly political maneuver to stop the rise of Islamist parties.

Marina Ottaway
Before joining the Endowment, Ottaway carried out research in Africa and in the Middle East for many years and taught at the University of Addis Ababa, the University of Zambia, the American University in Cairo, and the University of the Witwatersrand in South Africa.
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The courts have been put squarely in the middle of a political battle that challenges their capacity to remain neutral. Should the courts declare the election law unconstitutional and invalidate the elections, the country would be plunged into a major political crisis that could keep the military in power for months to come. And if the courts declare the way in which the parliament formed the Constituent Assembly unconstitutional, the country will hurtle toward the presidential elections scheduled for May 23 and 24 with the transition process in total shambles.

The real cipher is the Supreme Council of the Armed Forces (SCAF). Would the military use the opportunity of the artificially-induced crisis to step in and impose a new process, disband the parliament, and author its own constitutional text (or at least some clauses)? It has certainly not backed off in the war of words. And it has even decisively taken sides between secular and Islamist politicians when it issued a decree to allow the liberal Ayman Nour to run for president despite an earlier (and clearly political) conviction while not doing so for Brotherhood leader Khayrat al-Shatir, also previously convicted for political reasons. The SCAF has so far not gone beyond hinting that it might constrain or modify the process, but a constitutional coup remains a possibility. If it comes it could be ugly—especially if the Brotherhood calls its supporters out in the streets.

In the year since the uprising, there has been much speculation that Egypt might follow the so-called Turkish model. Depending on the speaker, this can mean one of two things: either a system in which the military would maintain ultimate oversight over the political process, as was the case in Turkey until recently; or conversely the rise to power of an Islamist party that would move away from religious dogma and become a broad, socially conservative, and economically liberal political party.

But with the secular parties’ decision to turn to the courts, another Turkish model has suddenly begun to loom very large for Egypt: one in which the elements of what Turks call “the deep state”—the military and the security apparatus, supported by other key institutions, including parts of the judiciary—strike back hard against Islamist movements, cheered in the process by non-Islamist civilian political parties that jettison their democratic credentials with alacrity and depend on nondemocratic actors to crush their Islamist opponents. This was the Turkish path after Islamist Necmettin Erbakan became prime minister in 1996. It is only in the past few years that this model has faded from the political scene in that country.

In the past week, the possibility of a showdown in Egypt between the Brotherhood and a motley political coalition of generals, liberals, senior bureaucrats, and scattered judges has emerged. And such a showdown could easily produce a severe crisis, with some kind of second coup or a set of street confrontations a real possibility. Egypt’s badly-designed transition could collapse completely. If that happens, the list of villains will be long—with hypocritical liberals, overreaching Islamists, and control-freak generals at the top.

The current crisis was precipitated by the composition of the Constituent Assembly, the body elected by parliament on March 24 to draft a permanent replacement for the interim Constitutional Declaration issued one year ago. The parliament decided that the Constituent Assembly would comprise 50 parliamentarians, apportioned among the parties according to the number of seats each has in parliament, and 50 public figures, experts, and representatives of various associations and state bodies (with even the SCAF getting a member). In choosing the composition of the assembly, the parliament was acting perfectly in accordance with the Constitutional Declaration issued by the SCAF in March, which simply stated that the parliament would elect a 100-member body to draft the constitution.

Nathan J. Brown
Brown, a professor of political science and international affairs at George Washington University, is a distinguished scholar and author of six well-received books on Arab politics.

So why the fuss? The Constituent Assembly is dominated by Islamists and secular parties are determined to do everything they can to stop them from influencing the constitution. With the support of the SCAF they tried repeatedly to impose a set of supra-constitutional principles that the drafters of the constitution could not violate, but they failed. They tried, again with the support of the SCAF, to dictate the composition of the Constituent Assembly, although the Constitutional Declaration left that up to parliament, and again they failed.

They are now turning to the courts as a last resort, with some hoping that the SCAF will back them up. In addition, they have also pulled most of their representatives out of the Constituent Assembly. And some other key institutional actors—including the Supreme Constitutional Court, one of whose members was elected to the Constituent Assembly, and al-Azhar University—have joined the boycott, as have all Copts. Other actors (including non-Islamist youth leaders and professional diplomats) have made their displeasure known at what they perceive to be their own exclusion.

The decision of the courts concerning the two cases will inevitably be highly political, because Egypt is in constitutional limbo. The 1971 constitution was abrogated by the SCAF, which then proceeded to fill the void through a process based on a series of afterthoughts and ad hoc devices that seemed designed to create maximum confusion. It first appointed a committee to amend a number of articles of the abrogated constitution and had them approved in a referendum. It then realized that those amended articles by themselves neither represented an adequate stopgap constitution nor provided an official role for the SCAF. Without consulting anyone, the SCAF then took the referendum-approved articles and cobbled them together with other non-amended articles from the 1971 constitution to produce a “Constitutional Declaration” of dubious legal standing. It further confused the matter by talking at times as if the 1971 constitution was still valid.

It would be difficult, if not impossible, for even the most independent, impartial, and apolitical courts to decide on the constitutionality of any law or decision since it is not clear what the constitution is at this point. And in any case, the courts do not seem impartial in this case, as seen by the recent decision of the Supreme Constitutional Court to withdraw its representative from the Constituent Assembly.

The puzzling element of the current crisis is the Brotherhood’s reaction. Throughout the transition process, the leadership has shown both patience and discipline. It has avoided any confrontation over short-term issues, instead focusing like a laser on its goal of continuing the march toward elections and transition to civilian rule. Realizing that the polling station would be friendly terrain—and that the strictures on organizing in professional associations, university campuses, and the like were suddenly removed—the Brotherhood championed the democratic process, adopting a combative pose only when it seemed there was some threat to the transition.

The Brotherhood clearly sees that threat now, because it has suddenly engaged in nasty and portentous public fights with all sorts of political actors. In all cases, the movement can plausibly claim to have principle on its side, but only much more rarely can the Brotherhood be said to be acting judiciously or wisely. It has asserted the parliament’s prerogatives by threatening to withdraw confidence from the cabinet (the Constitutional Declaration does allow for parliamentary oversight of the cabinet but does not define oversight in any way, one of the many constitutional gaps).

The Brotherhood’s Guidance Bureau has publicly mused about the possibility of running a presidential candidate, contradicting earlier statements that it would abjure the office in the first election. And the Brotherhood publicly attacked both the SCAF and the Constitutional Court in intemperate language—dismissing the Court as a tool of the SCAF. Whatever the merits of the charge, attacking the judge is an odd technique for a current litigant (it is the Court that will hear the challenge to the constitutionality of the parliament; it is also the president of the Court who chairs the Presidential Election Commission). The Brotherhood’s verbal volley provoked an angry response from the Court itself, hardly a promising response from the Brotherhood’s perspective.

The election of the Constituent Assembly was accomplished by having Brotherhood deputies form a bloc with the Salafis, something the Brotherhood has consistently said it did not wish to do. And the Brotherhood’s General Guide actually charged Egyptian media with following diabolical orders. Acting more like a wounded animal than a government-in-waiting, the movement seems to have lost its collective temper. (A Brotherhood decision on March 29 to withdraw ten of its members or sympathizers from the Constituent Assembly to make room for more liberals may be a sign that the organization is seeking to regain its cool.)

The response from other political forces has been just as fierce, though there are no signs yet that it is coupled to a clear strategy. The boycotts and lawsuits could be dismissed as the frustrated sputterings of sore electoral losers—and indeed may remain that—were it not for the real possibility that they will provoke the military, the courts, and other institutions that are part of the old Egyptian state—the deep state—to seize control of the transition process. There is no clear way to do that under the terms of the Constitutional Declaration, raising the specter of a hard or soft coup.

Will the secular political forces get the support they seek? The precedent for court action does exist (essentially based on past challenges to the complex provisions for partisan and independent candidates), but there is slim legal footing. Even on the two previous occasions when it found the parliament’s election invalid, the Constitutional Court let the actions of that parliament stand. The only result was to force new elections. If that precedent were followed in this case, it would leave the Constituent Assembly intact while dragging exhausted Egyptian voters back to the polls in balloting that would undoubtedly return similar results.

But might the Court act more ambitiously—and politically—this time by declaring all of parliament’s actions taken so far illegal and thus disbanding the Constituent Assembly? The Brotherhood clearly fears that the Court is in the SCAF’s pocket. Such a fear may be exaggerated but is hardly groundless. The Court is hard to read right now since it issues decisions as a body with no dissenting opinions, but there are certainly justices who have been providing legal advice to the SCAF, and others who have personal or career connections to the military. And the Court has been treated kindly by the SCAF, having been rewarded with a decree-law last summer that rendered the Court a more self-perpetuating body. The Brotherhood has been quietly preparing its own plans to revise the law governing the Court, indicating that its suddenly expressed fear had been privately harbored for a considerable period.

Is it too late for both sides to avoid confrontation and return to their more cautious and careful approaches? Might everyone be satisfied with a rejiggering of the composition of the Constituent Assembly and a focus on the large areas of consensus in constitutional reconstruction? The possibility probably still exists, but not for long. If both sides back off, Egypt may indeed move in the direction of the more benign (though still problematic) conceptions of the Turkish model—a military that keeps its finger in the political machinery in disruptive and undemocratic (but often manageable) ways and an Islamist party that uses its popularity to move the society slowly in its direction, unobstructed by a feckless opposition and aided by its majority status and ability to slowly penetrate the pockets of the state and the society from which it had been barred.

The result might not be ideal, but it may be more preferable than a battle that pits the deep state against a deeply entrenched social movement in a struggle to the death. Under either scenario, the secular parties would be among the losers.