Morsi’s Ramadan Surprise

Egyptian President Mohamed Morsi took a series of dramatic steps yesterday that reconfigured Egypt’s current political landscape in ways that will shape how it is redesigned over the long term. Morsi forced the retirement of several top military chiefs and nullified a constitutional declaration issued by the military that reduced presidential authority. This series of personnel and constitutional changes could shift the balance of power among Egypt’s political forces.

In a Q&A, Nathan J. Brown analyzes Morsi’s moves. Brown argues that two of the country’s most powerful institutions—the presidency and the military—still seem very firmly in control and they also seem to be working together. But Morsi’s decision greatly enhances the power of the presidency, formerly the junior partner, and swaps its role with the one recently played by the military.

• What changes did Morsi make?
   
• Can Morsi do this?
   
• Were Morsi’s moves coordinated with the military?
   
• Where does this leave Egypt now?
   
• What is the status of Egypt’s transition?

What changes did Morsi make?

In a series of presidential edicts, President Morsi appointed Mahmud Makki, a prominent judge, as his vice president; made a series of personnel changes in top military positions; and issued an addendum to Egypt’s governing March 2011 interim constitution.

The new addendum revokes a previous one issued by the Supreme Council of the Armed Forces (SCAF) in June that placed the military beyond civilian oversight, gave the SCAF a legislative role, and allowed the SCAF to appoint a new constitutional assembly if the current one is unable to complete its job.

This transfers the authorities that the SCAF had assumed over the past year and a half to the president—thus giving the president absolute legislative authority for the duration of the transition, for instance—and allows the president to appoint a new constitutional assembly if the current one is unable to draft a new constitution.

The addendum did, however, maintain the new transition sequence decided by the SCAF in June, in which a new constitution will be written and ratified and then parliamentary elections will be held. (In a sense, there is no major change in the sequence; what has changed is that the sequence is based on the president’s say-so rather than the SCAF’s.)

Can Morsi do this?

The short answer is: Yes, he just did. The long answer is only a bit more complicated.

Morsi’s authority to appoint a new vice president was uncontested; the only requirement was that he find an individual or a group of individuals who have the legal qualifications to succeed the president.

The president’s authority over the military appointments was far less clear, but his changes are likely to stick. The SCAF’s June 2012 addendum to the constitutional declaration seemed to take much of Morsi’s authority over such matters away. But over the past week, Morsi took a series of steps that symbolically asserted some authority—apparently with the acquiescence of the SCAF (these included some less dramatic military personnel changes and convening a meeting of the SCAF that Morsi himself chaired, in seeming contradiction of the June 2012 addendum).

Observers traded impressions about whether these steps were merely symbolic or if they portended a shift of authority to the presidency. The decisions yesterday seem to resolve that debate. And the way in which the various individuals involved have quickly accepted the changes suggest that regardless of the ambiguous nature of presidential authority, there will be no resistance to the move.

Finally, on the new addendum to the constitutional declaration, again Morsi will likely have his way, though a strong challenge on legal grounds is still quite possible.

Last month, a Cairo court ruled that all constitutional actions taken by the SCAF between Mubarak’s ouster and Morsi’s election were beyond judicial challenge—there was a revolutionary situation, the court opined, and the actions taken by the SCAF were not reviewable by the courts. Implicitly, no such revolutionary situation exists right now.

Since Morsi took office, the legislative process—such as it was—was claimed in various ways by both the president and the SCAF. So a court could easily rule that Morsi’s constitutional edict carries neither revolutionary legitimacy nor the necessary imprimatur from the SCAF as a legislative authority.

This would be an argument that would have a strong basis in text and precedent but a weaker one in politics. The administrative courts or the Supreme Constitutional Court might indeed refuse to honor Morsi’s addendum. But unless there is strong opposition from a powerful political force (and the most likely opponent, the SCAF itself, seems to be going along with the president instead), a court taking such a move would be bold indeed.

Were Morsi’s moves coordinated with the military?

Yes, to an extent. But it may never be clear how much.

On the appointments, their quick acceptance by those affected suggests at least some advance consultation with key actors. The terms of the understandings reached are far less clear.

There was also some consultation on the constitutional addendum announced on August 12 (though reportedly dated one day earlier). At the beginning of this month, I was told by a high official in the presidency that drafting was underway on such a document. At that point, discussion concerned an addendum that was slightly less extensive in its scope, but it still would have been a strong bid for power. I was also told that there was constant contact and negotiation with the military as part of the drafting process. I had the strong impression there was much less political consultation with civilian actors, at least at that time.

Where does this leave Egypt now?

After Morsi’s inauguration, the country was ruled by a system that involved a forced marriage between a president from the Muslim Brotherhood and a committee of generals. Despite the nature of the marriage, there were strong signs that the two were working out a set of arrangements—based more on quiet understandings than written constitutional rules—for co-governing the country. At first, the presidency looked to be a bit of a constrained junior partner in these arrangements.

Now the tables have turned. The same co-governance is in place, but with the president as the more powerful actor. Indeed, by cancelling the June 2012 constitutional addendum Morsi has now legally reinserted himself as chairman of the SCAF itself (that position had been assigned to the president by statute—and indeed, Mubarak used to head the body until he was forced to resign).

There are a host of state institutions that may be resistant to presidential hegemony and that will be anxious to assert their autonomy. However, such battles may take the form of long-term guerilla warfare rather than sudden confrontation.

Morsi’s selection of a Mahmud Makki, a prominent judge, as vice president—after selecting Mahmud’s older brother Ahmad as minister of justice—may be an attempt to outmaneuver judicial opposition. The Makki brothers were both prominent members of the 2005 judicial reform movement and thus have some credibility in circles opposed to the old regime. Both were also rumored to have mild Islamist inclinations, though such rumors are hard to evaluate since judges rarely disclose their partisan feelings even when they have them.

But the placement of prominent judges in such positions—and the brief floating of a suggestion that the new justice minister draft a new judicial law to be issued by presidential decree (not waiting for the new parliament)—may be a way of signaling to the judiciary that accommodation rather than a full frontal assault may be a better strategy for those anxious about the presidency and the Islamist rise. Whether a presidency at least momentarily free of strong checks on its authority will set its sights on restructuring the judiciary is not yet clear—but judges will definitely be scouring presidential statements and decisions for indications of Morsi’s intentions.

What is the status of Egypt’s transition?

It seems likely that Egypt’s current constitutional assembly will continue in its task; indeed, Morsi’s actions may give it a strange kind of insurance policy.

Any potential opponents to the assembly will have to think twice about questioning its legitimacy or its work, since the body’s failure would be followed by an assembly entirely appointed by Morsi. Similarly, non-Islamists currently sitting in the assembly may calculate that the existing membership—which has been working largely by discussion and consensus—is their best bet to produce a document they can tolerate.

And the administrative courts, currently considering a challenge to the legitimacy of the constitutional assembly, had already shown signs of allowing the body to continue its work. Judges are likely to be mindful that if Morsi’s constitutional addendum stands, the choice will be between an assembly with many Islamists and an assembly entirely appointed by an Islamist.

The quick work of the assembly is likely to result in a document resembling the 1971 constitution, but with some modifications. The draft should be submitted to voters before the end of the year and assuming it is ratified, parliamentary elections would follow in a couple months.