At Concurring Opinions, Professor Tayyab Mahmud has a couple of important blog posts up on the deteriorating political conditions and outlook for the democratic opposition in Egypt. The first, concerns a possible “judicial coup” in Egypt based on the following recent events:
“On June 14, 2012, Egypt’s Supreme Constitutional Court dissolved the country’s first-ever democratically elected parliament and struck down a law passed by this parliament that barred senior officials of the Mubarak era from running for high office. Three days later, on the eve of the first-ever democratic presidential elections, Egypt’s shadowy military council proclaimed an interim constitution that grants the military broad veto powers over legislation, the national budget and foreign policy, and immunity from any civilian oversight. The military council also hand-picked a 100-member panel to draft a permanent constitution.
Popular forces in Egypt quickly dubbed the Court’s action a ‘judicial coup.’ Indeed, in a single stroke the Court has erased nearly all political gains of the year-long popular resistance that made Arab Spring and Tahrir Square household words the world over. The Court also paved the way for usurpation of unbridled power by the military. By doing so, the Egyptian Court has added yet another chapter in the long history of judicial support for reactionary and counter-revolutionary forces throughout the world.” [….] The rest of the post is here.
Mahmud’s second post is about “praetorian politics and free elections:”
“Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities. The political drama unfolding today in Egypt is a case in point.
After having dissolved the first-ever freely elected parliament in the country, Egypt’s Supreme Military Council is now withholding the results of the first-ever free presidential election. On June 20th, a commentator in Cairo termed the present situation “the most dangerous 48 hours.” If the history of nullification of election results by the military is any guide, dangerous times in Egypt may extend far beyond 48 hours.
Pakistan (1971) and Algeria (1991) present ominous parallels to the current constitutional crisis in Egypt. In both cases the military refused to honor the results of free democratic elections, and in both cases the result was a bloody civil war with lasting consequences for the polity.” [….] The rest of the post is here.
My comments to the latter (slightly edited) follow:
Re: “Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities.”
A few reasons may help account for why this is the case, the first being of course that comparative constitutional law is a fairly new area of study, and the second the fact that such comparisons, up till now at least, have often neglected the Middle East (or both the ‘Arab world’ and the ‘Islamic world’ generally). I know of only one work (there may be others) that treats the question of constitutionalism in the Middle East, namely, Saïd Amir Arjomand’s edited volume, Constitutional Politics in the Middle East: With Special Reference to Turkey, Iraq, Iran, and Afghanistan (Portland, OR: Hart, 2007).
In any case, the use of extra-constitutional means in praetorian polities and the role of the military generally in “transitions to democracy” was studied in the classic four volume work edited by Guillermo O’Donnell (no relation), Philippe C. Schmitter, and Laurence Whitehead, Transitions from Authoritarian Rule, 4 Vols. (Baltimore, MD: Johns Hopkins University Press, 1986/Papers originally commissioned for a conference sponsored by Latin American Program of the Woodrow Wilson International Center for Scholars between 1979-1981). While neither the “Arab world” nor the “Islamic world” was part of this study (Turkey being the one exception), it does provide a good reference or starting point for such studies. As noted in your first post, “Courts in the Global South in particular have more often been instruments to thwart democratic aspirations than protectors of constitutional and human rights. Indeed, praetorian usurpers have repeatedly relied on the courts to secure legal validity and political legitimacy.” The growing body of literature on “transitional justice” also treats praetorian politics and problems, praetorian actors often seeking to avoid being criminally sanctioned for their behavior prior to the transitions to democracy.
Country-specific works, (especially Turkey, but also Iran, Algeria, Egypt, Pakistan [an example of which you cited], etc.) at least discuss the role of the military in democratic and constitutional politics and there are insightful discussions of the role of the military in Arab political thought on “democracy and civil society.” Taking the “political economy” perspective, it’s interesting to note that in the case of Egypt, the Supreme Constitutional Court (SCC) appears to have been created under the Sadat regime in large measure to assuage the concerns of foreign investors wary of direct investment in a country with a legacy of vigorous nationalization of large chunks of the private sector (this is not to downplay many of the beneficial—if only even ‘spillover’—effects, democratically speaking, that came about as a result of the SCC). As Tamir Moustafa points out, “Given that Egypt has remained in a perpetual state of emergency, the Emergency State Security Courts and, most recently, the military courts have effectively formed a parallel legal system with fewer procedural safeguards, serving as the ultimate regime check on challenge to its power.” The role of the “security” apparatus has declined over several decades and thus become more informal, but its continuing economic clout in civil society and the fact that “officers from the military and the Ministry of Interior often serve as provincial governors and mayors of major cities” (Bruce K. Rutherford), assure that it will remain a potent political force, to put it mildly, and as we are now witnessing, for some time.
All the same, we should not ignore the many historically progressive results of the establishment of the SCC, which Moustafa helpfully characterizes as “bounded activism” or “insulated liberalism.” Whatever independence the SCC did possess was eventually compromised by “court packing” which sought to minimize “political risk” (that the SCC directly and indirectly help to generate) deemed a threat to neoliberal economic reforms. In Moustafa’s words, “The loss of Supreme Constitutional Court independence is an unambiguous example of the tendency of authoritarian regimes to undermine their own institutions at the expense of economic development.” Indeed, the “judicial coup” referred to in the earlier post may simply represent the surfacing of structurally sublimated conflicts, which serves to make clear to all concerned parties the specific democratic and constitutional configuration, such as it is, of the SCC.
The case of Chile may provide us with some reason for hope in Egypt: “Strikingly, the course of the dictatorship in Chile is a story in which a limited number of actors [in this instance, the several branches of the armed forces combined into a military junta] sieze and concentrate extreme powers, enact regulations to regulate their mutual relations, and, in so doing, set off a conflictive process that results in the promulgation of a constitution to further regulate the terms of their association. The Constitution, in turn, sets into operation institutions that subsequently limit the original rule makers, with the peculiar outcome that the military’s immediate political power is eventually dissolved according to procedures contained in its own rules, but with the further result that these rules, with some, though not extensive, modification, live on as the constitutional framework governing life in Chile.” Please see Robert Barros’ essay, “Dictatorship and the Rule of Law: Rules and Military Power in Pinochet’s Chile,” in José María Maravail and Adam Przeworski, eds., Democracy and the Rule of Law (2003): 188-219.
Incidentally, I also came across a nice comparative piece on the “temptations to cut constitutional corners [that] are persistent and real in the face of serious (or seriously imagined) threats to the state,” the case of Egypt falling largely within the parenthetical description: Kim Lane Scheppele, “Exceptions That Prove the Rule: Embedding Emergency Government in Everyday Constitutional Life,” in Jeffrey K. Tulis and Stephen Macedo, eds., The Limits of Constitutional Democracy (2010): 124-154.
Notes & Further Reading:
 Please see: Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development (Cambridge, UK: Cambridge University Press, 2007).
 Bruce K. Rutherford, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton, NJ: Princeton University Press, 2008).
 Perhaps the best succinct summary of the historic economic role of the military in Egypt is still found in Clement M. Henry and Robert Springborg’s Globalization and the Politics of Development in the Middle East (Cambridge, UK: Cambridge University Press, 2001): 150-152. There have been lively debates of late as to the precise nature and extent of the military’s economic holdings.
In addition to the articles and books cited above, and more by way of introductory material, please see issue nos. 258 and 262 (Spring 2011 and Spring 2012 respectively) of the Middle East Report published by MERIP.
- Azimi, Fakhreddin. The Quest for Democracy in Iran: A Century of Struggle against Authoritarian Rule. Cambridge, MA: Harvard University Press, 2008.
- Chenoweth, Erica and Maria J. Stephan. Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict. New York: Columbia University Press, 2011.
- Findley, Carter Vaughn. Turkey, Islam, Nationalism, and Modernity: A History, 1789-2007. New Haven, CT: Yale University Press, 2010.
- Ginsburg, Tom and Tamir Moustafa. Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge, UK: Cambridge University Press, 2008.
- Le Seur, James D. Between Terror and Democracy: Algeria since 1989. London: Zed Books, 2010.
- Sowers, Jeannie and Chris Toensing, eds. The Journey to Tahrir: Revolution, Protest, and Social Change in Egypt. London: Verso, 2012.
- Stephan, Maria J., ed. Civilian Jihad: Nonviolent Struggle, Democratization, and Governance in the Middle East. New York: Palgrave Macmillan, 2009.