Graffiti in Tahrir Square in Cairo. Field Marshal Mohamed Hussein Tantawi and former President Hosni Mubarak are seen as two sides of the same fac
Even as they promised to hand authority to elected leaders, Egypt’s ruling generals were planning with one of the nation’s top judges to preserve their political power and block the rise of the Islamists, the judge said.
Tahani el-Gebali, deputy president of the Supreme Constitutional Court, said she advised the generals not to cede authority to civilians until a Constitution was written. The Supreme Court then issued a decision that allowed the military to dissolve the first fairly elected Parliament in Egypt’s history and assure that the generals could oversee drafting of a Constitution.
The behind-the-scenes discussions, never publicly disclosed, shed new light on what some have called a judicial coup. From the moment the military seized control from President Hosni Mubarak, the generals “certainly” never intended to relinquish authority before supervising a new Constitution, Judge Gebali said.
The military council’s plan to cede authority was premised on first establishing the Constitution, the judge said, so the generals “knew who they were handing power to and on what basis. That was the point.”
When the military first seized power, it positioned itself as a guardian of the peaceful revolution, a force that was aimed at helping achieve the goals of a democratic Egypt. Demonstrators in Tahrir Square chanted that the people and the military were one, and there were promises of a quick transition to civilian control.
But the evidence since then has piled up demonstrating that the military had never intended to fully submit to democratically elected authority.
Now as Egypt’s new, popularly elected president, Mohamed Morsi of the Muslim Brotherhood, tries to fashion a role for himself as head of state, he is facing a military council that retains virtually all executive and legislative authority. The generals have again pledged to transfer power after a new Parliament is elected and a Constitution drafted.
Some argue that this is in Egypt’s best interest.
The generals “want to make sure before they leave that the Constitution is not monopolized by any group or direction,” said Anwar el-Sadat, nephew of the former president and a member of the Parliament that was dissolved. He was referring to the Islamists, who had won control of the Parliament and went on to win the presidency.
“They would like to make sure this is a civil state,” Mr. Sadat added, as opposed to a religious one. “That is all.”
Judge Gebali said her own direct contacts with the generals began in May last year, after a demonstration by mostly liberal and secular activists demanding a Constitution or at least a bill of rights before elections. “This changed the vision of the military council,” she said. “It had thought that the only popular power in the street was the Muslim Brotherhood.”
It was also around that time, Judge Gebali said, that she began helping the military-led government draft a set of binding constitutional ground rules. The rules protected civil liberties, she said, but also explicitly granted the military autonomy from any oversight, as well as a permanent power to intervene in politics. “The military council accepted it, and agreed to issue a ‘constitutional declaration’ with it,” she said.
But as the military-led government unveiled the rules, known here as the Selmi document, the provisions about the military’s power aroused fierce opposition, culminating in a weeklong street battle with security forces near Tahrir Square that left about 45 people dead.
The planned decree “was thwarted every time by all the noise, the popular mobilization, the ‘million-man marches,’ ” Judge Gebali said, blaming the Islamists even though they were only one part of the protests.
Egyptian jurists now say that the generals effectively planted a booby trap in the parliamentary elections by leaving them vulnerable to judicial negation at any time — if the generals allowed previous precedents to apply.
The elections had “a fatal poison,” Judge Gebali said she warned at the time. “Any reader of the situation would’ve known that this appeal would be the end of the Parliament.” When the elected Parliament sought to take control of the interim government, the generals’ prime minister expressly threatened the lawmakers with judicial dissolution, the speaker of Parliament said at the time.
The decision “is in the drawers of the constitutional court, and it could be taken out at any time,” Prime Minister Kamal el-Ganzouri told Parliament’s speaker, Saad el-Katatni of the Muslim Brotherhood, as Mr. Katatni recalled in March from the floor of Parliament.
Parliament backed down, and the warning proved prescient. But Mr. Ganzouri denied making the threat.
Supporters and critics of what has emerged both agree that what the generals are doing is aiming to create a system similar to what emerged in Turkey in 1981, after a military coup. At that time in Turkey, a military-dominated National Security Council retained broad power over an elected government in the name of preserving the secular character of the state.
It was bifurcated sovereignty — a military state within a state — that ushered in 20 years of repeated coups and perpetual instability. That began to change only about 10 years ago when Turkey’s current loosely Islamic governing party began prying away control.
Egypt’s generals recently activated a dormant National Defense Council packed with military personnel that could play a similar role.
Mr. Sadat, who is close to the generals, emphasized the ultimate outcome. “Over time the generals know they are losing power and control, the same as happened in Turkey,” he said.
The generals’ focus on securing their permanent autonomy and influence has been an unstated theme of why they came to power. Their intentions were made clear with a recently issued decree that gave them control of legislation and the budget until the election of a new Parliament. It also handed the Mubarak-appointees on the Supreme Constitutional Court jurisdiction to strike down provisions of the next Constitution.
Nathan J. Brown, a legal scholar at George Washington University, called the provision to give the holdover court such unrestricted power “a constitutional obscenity.”
Egyptians voted soon after Mr. Mubarak’s ouster to approve a transition plan that appeared to put the ratification of a Constitution well after the military turned over power to elected civilians — by design, its chief author, Judge Tarek el-Bishry, has said. The plan made no mention of the generals, who were promising a transfer in six months.
Then the generals unilaterally overruled the referendum and issued a decree stipulating that the ruling military council, not the elected Parliament, would call a constitutional assembly — the first clue of their intentions.
“I knew the elections would bring a majority from the movements of political Islam,” Judge Gebali said last week.
She said she sent the ruling generals a memo urging them to put off any votes. “Democracy isn’t only about casting votes; it’s about building a democratic infrastructure. We put the cart in front of the horse,” she said.
“But there was severe pressure for the Islamic movements,” she added, including the Muslim Brotherhood, Egypt’s largest political force. “The military is the hard power in society, and it was in the Islamists’ interest not to set the Constitution while this hard force was in power.”
Later, she said, the generals acknowledged to her that they had made a mistake by going ahead with the parliamentary vote. “The apology was clear: ‘You were right,’ ” she said.
-This report was published in The New York Times on 04/07/2012
-Mayy El Sheikh contributed reporting