Morsi’s Check, Not a Checkmate


President Mohamed Morsi delivered a tremendously game-changing blow to the military with the dismissal of defense minister and head of the Supreme Council of the Armed Forces (SCAF) Field Marshal Hussein Tantawi along with his chief of staff Sami Anan. The broad reshuffle of Egypt’s security personnel and the SCAF set activists, think-tanks, and egyptophiles ablaze with theories and analyses regarding the boldest move to date from a man previously dismissed as a mere puppet to the status quo, the “spare tire.” This story, however, still has a final chapter as yet unwritten, one that remains largely ignored at the moment. Most of these analyses have yet to address the last major player in the chess game: the judiciary.

In a rapid-fire series of events, Morsi dramatically altered the political dynamic in Egypt by replacing his rivals with a new cadre of military honchos led by the newly promoted defense minister General Abdel Fattah al-Sisi. Commentators point to Tantawi and Anan’s acceptance of the medals of honor awarded to them by Morsi, and their appointment as presidential advisors as indications of an internal military coup with Sisi at the helm. Speculations abound, with reasonable opinions ranging from Morsi’s domination forcing the military out of power in cooperation with younger officers, to SCAF junior members becoming jaded with their senior officers over Sinai and using Morsi to remove them. Whatever the story, none of these steps could have occurred without the cancelation of SCAF’s constitutional addendum.

When the SCAF issued the addendum on June 17, it both confiscated the powers of the dissolved People’s Assembly and effectively (albeit temporarily) fortified its position as the final arbiter for all issues related to the armed forces. When Morsi issued his own constitutional decree, he removed the legal prohibition on presidential interference with the dismissal and appointment of military personnel. In the absence of a parliament, he inherited the legislative powers confiscated by the SCAF. By virtue of issuing a constitutional decree, he assumed interim constitutional powers as well. As of forty-eight hours ago, President Mohamed Morsi became Emperor, the strongest man in Egypt… well, at least on paper. The question that one must still answer: does Morsi even have the legal authority to make such a move?

Although more than a few bright minds have astutely noted the lack of logical reasoning in Egypt’s transition (see “stupidest transition in history”), the fact remains that the law and the constitution – no matter how “interim” – still remain significant factors in Egypt’s game of thrones. In this regard, the courts are the final gatekeepers – ones that remain sensitive to decisions challenging the civil character of the state. The Supreme Constitutional Court (SCC) struck down the parliamentary elections law and Morsi’s decree to reinstate parliament. The Cassation Court refused to hear appeals to the verdict on the basis of jurisdiction, standing firm with the SCC as the highest court on constitutional matters. Despite the disgust expressed by critics of a politicized judiciary issuing injudicious verdicts, Morsi and the Muslim Brotherhood have repeatedly expressed their respect for the court’s authority.

A case has already risen from the aftermath of Morsi’s decree, and initial signs point to a major fight on the horizon. Judge Yousef Auf, a legal commentator and judge in Giza, told Sherine Tadros in an Al-Jazeera English interview yesterday that we can expect at least one case in the Administrative Court challenging Morsi’s decree. As if on cue, Mohamed Salem, a lawyer and staunch anti-Islamist, filed the first legal challenge to Morsi’s decree in Egypt’s administrative court. Judge Tarek al-Bishri, primary drafter of SCAF’s March 2011 Constitutional Declaration, condemned Morsi’s legal maneuvering telling al-Shorouk newspaper, “Morsi holds no authority to issue constitutional decrees.” Deputy Head of the Supreme Constitutional Court Tahany Al Gebaly told BBC Arabic, “Morsy’s decisions are breach of constitutional legitimacy which made him president, which thus deems him lacking constitutional legitimacy.”

Other legal analysts supported Morsi’s move. Gaber Nassar, a Cairo University law professor, argued that the president retains both executive and legislative powers in case of the absence of parliament under article 147 of the 1971 constitution. Hossam Eissa, law professor at Ein Shams University, also told Daily News Egypt that any constitutional investigation would only be theoretical since Morsi’s decree is political and administrative in nature. Given that the SCAF abrogated the 1971 constitution after Mubarak’s ouster and the obvious constitutional implications of the decree, these arguments are less likely to hold up in court.

Some have also argued that the Administrative Court and the Supreme Constitutional Court (SCC) might also hesitate to strike down the decree given a lack of political cover and cooperating spirit from the new SCAF. While undoubtedly weighing on their minds, an anti-domination sentiment remains a part of the mindset in the courts and judges may still rule in favor of striking down the decree. Alternatively, Morsi could preempt a reversal of his decision with a judicial reshuffle. Although Morsi’s spokesman denied any imminent changes to legal personnel, the president can appoint public prosecutors and SCC judges who take the bench until the mandatory retirement age of 70 under the 1971 constitution. If he forces retirements before then, the political and legal firestorm as a result of such a decision could throw the transition into even greater turmoil. Minister of Justice Ahmad Makki and the SCC already started exchanging blows in the media, indicating a high stakes battle on the horizon.

The coming days will reveal the backlash to Morsi’s move as opposing forces regroup to counter what they see as an existential conflict with the Muslim Brotherhood. While Tantawi and Anan appear to have accepted their retirement, more stubborn political and judicial authorities will no doubt make their plays soon enough. Morsi may have cornered the rooks, but he remains many moves away from a checkmate.

Tarek Radwan is associate director for research at the Atlantic Council’s Rafik Hariri Center for the Middle East and a blogger for EgyptSource.

Photo Credit: AFP 

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