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Democracy Under Assault After Egyptian Election

Posted on the 18 June 2012 by Warigia @WarigiaBowman

Democracy under assault after Egyptian election

Egyptian soldiers near Tahrir in February 2011. Photo Credit Al Ahram.

Let me begin my post by telling you the word on the street, and then, I will update you on the "official news."
First of all, a completely non-scientific sample of people in my life produced the following election results. My office manager, who is actually a very observant Muslim, said that "at least if Shafiq is elected, we will have a civilized country, not a religious one." I think she meant civilian, or secular, but point well taken. My taxi driver had no idea what the dismissal of parliament meant, but was very gung ho about Shafiq. My favorite tour operator, who is very literate in both English and Arabic, and quite politically savvy chose Morsi, as the more revolutionarily appropriate choice.
Anyway, what I have heard this morning in New Cairo from a fellow law professor and a colleague at the UN is that Morsi has won, unofficially. That being said, the SCAF has also issued a decree strictly limiting the powers of the presidency. They also told me that the SCAF will appoint the Constituent Assembly, draft a constitution in three months, and then additional parliamentary elections will be held. Further, there is buzz that the SCAF will make all provisions in the Constitution appealable to the Supreme Constitutional Court. I have also heard that the military now has the power to arrest civilians for assembling in public, and other infractions.
Brief thoughts. If Morsy won, then the election was more or less free and fair, because the SCAF wanted Shafiq, one of their own. Then again, what is the point of having a President in the absence of a parliament. It is also yet to be seen if the president will actually be allowed to assume power. Further, I am not a fan of this rushed constitutional process. I also do not think that you can write a constitution from the top down. It must be a consensus process which is widely accepted by the populace. This cannot be attained if the SCAF appoints the members it desires with no feedback from Parliament or other major social organizations. Finally, as I have noted in previous posts, the courts are completely unreconstructed from before the Revolution. They are all Mubarak appointees. The Supreme Constitutional Court members were all picked by the former regime, which feels a lot like the current regime today. It is lunacy to give the Court the power to evaluate which clauses it approves. This is legally problematic at multiple levels. It will take me time to digest that.
Okay, so now, what does the paper say? Al Masry Al Youm says that according to their count (unofficial) Morsy wins with 51.3 percent of the vote. The news also confirms the expansion of military powers. Amended Article 60 gives the military to appoint the Constituent Assembly if the CA developed by the parliament does not fulfill its role.
Check this out.
The SCAF, the president, the prime minister, the Supreme Judicial Council, or one-fifth of the Constituent Assembly have the right to contest any clause issued by the Constituent Assembly if “it is in opposition to the goals of the revolution or its basic principles… or the common principles of Egypt’s past constitutions.”
The assembly would have to revisit the contested clause or clauses within 15 days, and if the contention holds the Supreme Constitutional Court should have the final word.
What?? So, the Supreme Constitutional Court gets to rule on the constitutionality of the Constitution? Very puzzling.
According to Al Ahram, which is nominally state controlled, Morsi fans are already celebrating his election.  AUC Professor, former MP, and liberal political figure Amr Hamzawy laments the restrictions on the newly elected president's powers. Here is the text of the SCAF amendments (Made by decree) to the constitutional document. Given the frequency with the SCAF rules by decree, the document is beginning to look like a list of military orders.   
So what is the score card? Parliament: mainly Islamist, but some secular forces, few regime forces, only democratically elected institution in Egypt. Status. Dissolved, technically, but impressively defiant. . Judiciary: strong hold of Mubarak Regime appointees. Status. Very powerful. SCAF: the military, secular, but corrupt with strong ties to Mubarak Regime. Status: Currently holds executive and legislative power. President: election results not yet finalized, but Islamist. Status: unclear if president will really be able to be sworn in. 
Here is the New York Times take. The bottom line is that a power struggle is emerging between those who want a civilian state and those who want a military state. Within the coalition of those who do not want a military state, there is a conflict between Islamists and secularists. The Islamists and secularists will have to find an accommodation if they wish to work together against the old forces of Mubarak, now embodied in the SCAF. That is not going to be an easy pill to swallow, but as always, I am cautiously optimistic.   

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