Last week, Egypt’s elected president Mohamed Morsi gave himself more power than even deposed president Hosni Mubarak had under decades of military dictatorship.
Morsi, a former member of the Muslim Brotherhood, outmaneuvered the Egyptian judiciary, issuing a “constitutional declaration,” which amounts essentially to a temporary constitution granting him absolute power. The maneuver sparked a popular outcry, with pictures from Cairo and Alexandria showing tens of thousands of protesters pouring into the streets.
The country’s previous constitutional declaration, approved by a referendum in March 2011, granted executive and legislative powers to the military until a new constitution was approved and a parliament was elected. Under that document, the military did not control the judiciary, which had remained fiercely independent ever since the military took power in 1952.
But with the United States, many Egyptians and the rest of the Middle East preoccupied by the war between Gaza and Israel, Morsi and his Islamist allies seized the moment to go after the judiciary.
The judges have not taken it sitting down, and have gradually begun going on strike. In Cairo, Suez, and Asyut, the courts have all gone on strike, and Morsi’s non-Islamist opponents have begun to unite, bringing masses of ordinary citizens into the streets to protest his authoritarian turn.
Morsi made his first play for control of the judiciary last month, when he asked Egypt’s top prosecutor, Attorney General Dr. Abdel-Meguid Mahmoud, to accept a position as Egypt’s ambassador to the Vatican. Mahmoud declined, and reiterated his intention to remain in office until he retires. The rest of Egypt’s judges rallied around him, and the public outcry forced Morsi to back off.
Morsi made Mahmoud the offer not out of generosity, but because Egyptian law does not give him the power to fire the Attorney General. Mahmoud can either resign of his own choosing or retire at age 70.
Egypt’s leaders charged that he was a Mubarak appointee, but though the president formally appoints the Attorney General, the selection merely follows the recommendation of the relatively independent Supreme Council of the Judiciary.
Even under military dictatorship, no Egyptian president ever managed to subjugate the judiciary completely. For 60 years, the judges were neither totally independent nor totally controlled by the president.
In 1953, a year after the military coup that overthrew Egypt’s constitutional monarchy, the country’s courts began reversing some of its new military rulers’ decisions. As a result, regime loyalists assaulted Egypt’s highest judge, Sanhuri Pasha, in his office.
In 1969, then-president Gamal Abdel Nasser let what became known as the “massacre of the judiciary,” firing large numbers of judges who were fighting for the independence of the judiciary.
Finally, in 2005, Egypt’s judges took a bold step, challenging President Mubarak, who had ruled for three decades under emergency laws, denying the judiciary its due powers.
This was a rallying point for Egypt’s protest movement, including the April 6 youth movement formed that same year, and the Kefaya movement which protested Mubarak’s rule before 2011.
The judiciary became a symbol of independence, and thus a focal point for all reformers. Though at the time, no one could tell, this showed the protesters who ultimately toppled Mubarak that it could be done.
Morsi has been fighting the judiciary since the day he took office. In June, the courts dissolved the Islamist-dominated parliament. In early July, Morsi tried to overturn the ruling, but abandoned the effort in the face of public outrage.
Much to Morsi’s dismay, the courts are now contemplating dissolving the Islamist-dominated constituent assembly tasked with drafting the country’s new constitution. The judges charge that the procedures used to select the assembly’s members were not legally sound.
In his campaign against the judiciary, Morsi claims he wishes to “clean” the institution of the remnants of the old regime, but as all the non-Islamist parties and activists maintain — to say nothing of the judges themselves — it is simply a play for domination, by purging any judges who disagree with him.
Since late last week, the non-Islamist forces have become more united than ever in their struggle against a new authoritarianism. To the protesters who recall the role the judges played in checking the government’s power even under Mubarak, the judiciary symbolizes genuine democracy in action.
Morsi maintains that his declaration is merely a temporary measure, a stopgap until the country can draft a new constitution, but precedents matter. Should Morsi succeed in his quest for absolute power, he will become almost a pharaoh, and it will be that much harder for Egypt to transition from rule of man to rule of law.
Without an independent judiciary, democracy cannot take root in Egypt. Morsi is putting his people on track for more confrontation and suffering.
Khairi Abaza is a senior fellow at the Foundation for Defense of Democracies, and a former official in Egypt's secular liberal Wafd party.