Slouching Toward Jerusalem, Riyadh, and Washington To Be Born: A Conversation with Khaled Abou El Fadl on the Trials of Egyptian Democracy
September 8, 2012
Khaled Abou El Fadl is the Omar and Azmeralda Alfi Professor of Law at UCLA and an internationally recognized expert in Islamic law and human rights. Since the ouster of Hosni Mubarak, he has consulted regularly with leading members of Egypt’s judiciary on constitutional issues. He is the author of numerous books, including his decorated The Great Theft: Wrestling Islam from Extremists and most recently Islam and the Challenge of Democracy, co-authored with Joshua Cohen and Deborah Chasman.
We spoke on June 28, after two weeks that were tumultuous even by the standards of post-revolutionary Egypt: an elected parliament dissolved, a seizure of power amounting to a “soft coup” by the military council, a run-off election that soon turned into a stand-off between the military and the Muslim Brotherhood, and all before Mohamed Morsi of the Brotherhood’s Freedom and Justice Party was declared Egypt’s first freely elected president.
Khaled Abou El Fadl and I discussed the role the courts played in these events, the foreign pressures weighing on the military council, the workings of a neoliberal colonial army, and the future of political Islam in the wake of the Arab Spring. His remarks have been confirmed by many of the facts now emerging on the military council’s unilateral passage of a national budget and the relationship between the military council and the Supreme Constitutional Court, and they shed light on the current battle over Morsi’s reinstatement of parliament, which reconvened long enough only to initiate an appeal of the court’s invalidation of the December parliamentary elections.
FM: Let’s begin with the Supreme Constitutional Court’s June 12 decision, which declared December’s parliamentary elections unconstitutional and paved the way for the military council to dissolve parliament and regain full political control in Egypt—at the very moment when they had promised a handover to civilian authorities. When you heard of what the court had done, did it strike you as a valid legal decision or as pure politics?
KAF: I wasn’t surprised, but let me fill in some details. The legal background is that the language of the regulations for conducting parliamentary elections issued by the military council was not tight and left a lot of gaps and a lot of problems. After the elections, someone who had lost in one of the districts brought a complaint arguing that two-thirds of seats are supposed to go to party members and one-third to individual members, to independents. This fellow complained that that the regulations allowed the parties to have their members run as individuals. And that is a problem in the electoral law, which should have made clear that you need truly to be an independent. The issue is not just to be running individually, but to give non-party people the opportunity to fill a third of the parliament.
Like everything the military council has issued since it has come to power, the election rules would give pause to a proficient lawyer, or someone who knows how it’s supposed to be done. But in this case their regulations weren’t the only issue, and I want to emphasize this: several meetings took place between the military council and the heads of the parties before the parliamentary election rules were issued, with members of the judiciary including the head of the Egyptian constitutional court in attendance. They all signed off on the language of the electoral law that the supreme court later knocked down.
When this fellow brought his lawsuit, the case was put on the fast track to the Egyptian supreme court. Usually these cases have to go through hurdles of administrative courts and appeals. The exact question before the court was whether the election should be re-run in this individual’s district. But the court issued a decision in two parts, one stating that the language of the electoral law is unconstitutional and the other stating that because the one-third is unconstitutional the whole election is unconstitutional.
What is the precedent? There have been several Egyptian supreme court decisions that declared exactly the same issue to be unconstitutional. In the 1980s and again in the ‘90s, the typical scenario was that members of the ruling party would run in the elections as independents, and as soon as they won they would announce that they were joining Al-Hizb al-Watany [the ruling National Democratic Party]. Sometimes when the Ikhwan [Muslim Brothers] did well in the elections, they would run as independents, because they couldn’t run as members of a party, and then the government itself would try to invalidate the person’s election.
In the past, however, the court showed far more restraint in saying that you cannot exploit the seats for independents to further the interests of parties and did not declare whole elections invalid. They did so once under Mubarak, but justified the decision because a great many violations occurred.
In other words, what is rather odd here is, first, that the issue was fast-tracked; second, that the head of the supreme court played a role in drafting the electoral laws with the military council and parties and at the time raised no objections to the language; and third, that the supreme court could simply have left it with the administrative courts, which could have invalidated the elections in just this fellow’s district and ordered a new election for that seat. If the supreme court wanted to make a point that this is unconstitutional, they could have invalidated the one-third alone.
The supreme court’s decision came in a long opinion. In language we are not accustomed to, it goes on about how the supreme court needs to protect democracy and is a bulwark against authoritarianism, and about how this system of two-thirds and one-third is there to guarantee the rights of individuals to equal access to parliament. The way I read this is that they know they are about to do something rather sweeping and unusual given their own precedents, and so they have a lot of what we would call in American law “dicta” about democracy and why they cannot decide this case narrowly but must deal with the larger issues.
There are a couple of other things to consider. Normally when you decide that a parliament is unconstitutional, you hand the decision back to parliament and say, “OK, organize a new election.” But some members of the military council jumped on the decision and canceled the parliament without any clear motivation. It was the military council that drafted the electoral law that turned out to be unconstitutional, and the military council that now wants to play the magistrative role of drafting new electoral laws. So it’s quite a mess.
The military council was not surprised that the Ikhwan had won the most seats in the parliament. But as presidential elections approached, the military council postponed them as long as they could. The idea of having their own man in the elections whom they would back up very strongly, Shafiq, had formed, and they exerted pressure on the elections committee not to disqualify Shafiq although there are thirty-five corruption charges pending against him. In theory at least, he could be elected and then convicted, though of course they were counting on the fact that once he became president he would have immunity and you wouldn’t be able to touch him.
Why did the Egyptian supreme court issue this decision at this time and in this fashion? What I know is that the military council, right before the elections, when it was backing up Shafiq with all of its might, was confronting a lot of foreign pressure to make sure that certain conditions and situations in Egypt did not change—not just Camp David [the 1978 peace accords between Israel and Egypt], but the oil agreement with Israel, which is a windfall for Israelis. There was a lot of anxiety about Islamists coming to power.
FM: When you say “foreign pressure,” I imagine you mean American pressure?
KAF: American, Saudi, and Israeli. These were the ones who exerted the greatest pressure on the military council, basically saying you can do whatever you want in Egypt, but here are vital interests that the army must guarantee for us. The army is the one that is responsible for guaranteeing these interests. That’s why, for instance, the military council insisted that you can’t go to war without the approval of the military. This was a direct message to Israel and the United States: “Don’t worry, not that much is going to change in terms of your interests.” Another one of the pressures or demands had to do with their substantial financial investments in Egypt. They don’t want a government that’s going to nationalize or otherwise attack agriculture law, or modify the contracts that are the basis of a lot of these investments, because that would cost both Saudis and Americans billions of dollars.
This is what the military council refers to as “high national interests” or “sovereign interests.” It’s all cover language for really important things that we don’t trust to civilians because civilians might make autonomous decisions. At least in their world, there persists the idea that the army is the backbone of the country and there to protect Egypt, but at the same time it is part of the military’s firm doctrine that they should never go to war with Israel. It’s an army that consumes one-quarter of the national budget, but in which none of the officers ever expects to fight. They’re now taught business and business law courses in military school, because the army runs a financial empire. It’s an interesting concept: an army that has vowed never to fight—not, of course, that I’m arguing for war…