Judging by the barrage of comments triggered by President Mohamed Mursi’s controversial executive decree, Egypt has already fallen under a new dictatorship. Mursi, one commentator insists, has killed the Arab Spring. What Egypt is entering is an “Islamist Winter”, another pundit observes. Pushing hyperbole further, some commentators suggest that Mursi wants to be “another Khomeini”.
Almost daily protests at Tahrir Square leave little doubt that Mursi’s decree has touched a raw nerve. Nevertheless, it is important that any response to Mursi’s move be proportionate. To that end one should try to understand Mursi’s move, without necessarily justifying it.
On close examination, Mursi’s decree appears less frightening than we are led to believe. Because Egypt is in transition, it is not quite clear how executive decisions could be taken and validated. Mursi’s decree is an attempt at dealing with that dilemma, albeit in a rather gauche way that is open to misunderstanding.
Mursi was elected under a presidential, rather than a parliamentary, system in which the President of the Republic is both head of state and head of the executive branch of government. In such systems, the president could take and enforce a range of decisions without the prior approval of the legislative branch of government.
In the United States, for example, the president has the power to make numerous appointments, below Cabinet level, without approval from Congress.
The American president could also take numerous decisions by using a device called “presidential finding.”
When Congress is in recess, the president could even make Cabinet level appointments by decree. An example was the appointment by President George W Bush of John Bolton as US Ambassador to the United Nations. This was done because the Democrat-dominated Senate had threatened to prevent the appointment by filibustering.
Even on such highly sensitive issues as getting involved in a foreign war, the president retains immense powers for up to 90 days. In some cases, as the recent US intervention in Libya, a presidential decision could be shaped in ways that circumvent the War Powers Act.
In France, which also has a presidential system, the powers of the president are even greater. Unlike his US counterpart, a French president is not obliged to have members of his Cabinet vetted and ratified by the parliament. Nor does he offer the parliament a State of the Union report.
Needless to say in both the American and French systems virtually every presidential decision remains open to legal challenge through the Supreme Court in the United States and the Constitutional Council in France. In both countries any citizen could apply for an injunction. However, even then they cannot expect the court to pre-empt a presidential decision.
What Mursi is trying to do is to introduce a mechanism that resembles the American “presidential findings” and the French “presidential decrees”.
Regardless of the content of the decision taken or to be taken, Mursi has the right to devise a mechanism in the absence of a legislative power. This is needed to protect the decision-making process against disruption through pre-emptive attempts at securing injunctions from the Constitutional Court. To add to complications, the very status of that court remains uncertain if only because the new constitution is not yet drafted.
To be sure, Egypt should move towards the rule of law. But the rule of law does not mean rule by lawyers. One could recall many examples of how the rule of law is twisted into rule by lawyers in many walks of life. The US has witnessed at least one presidential election decided by lawyers rather than the electorate. Outside politics, we saw how a man charged with murder was cleared in a criminal court but then found guilty of exactly the same crime in a civil one.
An example of attempts by lawyers to rule without being answerable to an electorate came in Pakistan earlier this year when a coalition of judges and barristers managed to push the prime minister out in an act of political vendetta.
Mursi’s decree gives him the leeway needed to deal with issues of national security and sovereignty. However, even then, and contrary to what he may think, none of his decisions would be immune from post-factum legal challenge. There is nothing in the Egyptian Civil and Criminal Codes to prevent a citizen or group of citizens from lodging a suit at a court. Thus, Mursi will not obtain anything more than what is allowed under the well-established principle of Sovereign Immunity recognised by both Egyptian and international laws.
As always, Egyptians have shown their originality by producing a political show in which lawyers practice street politics in the name of defending institutional democracy.
Will Mursi become another Khomeini, that is to say a destructive element in Egyptian life? I doubt it. Khomeini won power through terror and violence, and never submitted himself or his associates to the test of free elections. Mursi, however, owes his position to an election organised by his political opponents. More importantly, perhaps, Mursi, like most Egyptians, is familiar with the disaster that Khomeinism has brought to Iran. No sane person would want something like that to happen to Egypt or any other country for that matter. All those who wish to prevent a new dictatorship in Egypt have the right, even the duty, to be vigilant.
However, focusing on the form of policy-making is at best futile and at worst harmful to Egyptian hopes for democracy. What is needed is to focus on the content of Mursi’s policies many of which are deeply reactionary or misguided. Opposing Mursi must not mean trying to sabotage his presidency.