Tuesday, August 06, 2013

Constituting Generals

            In the lengthy, acrimonious and not always enlightening debate about the decision of the Egyptian Armed Forces to oust former President Mohammad Morsi it has been widely been asserted that—whether what they did was politically wise—the Egyptian generals acted unconstitutionally and immorally.  They both broke their oaths and they abrogated the constitutional order.   The major point of contention is whether in so doing they made a coup or carried out the revolutionary will of the people.  The Armed Forces may, based on the relevant portions of the 2012 constitution they negotiated with the Muslim Brothers (as well as the representatives of other political groups) in 2012, have a different idea.  Without addressing the longterm impact of the military intervention and ouster of President Morsi it is worth thinking about the terms of the political agreement embodied in that constitution.

If constitutions are documents that set out the institutional division of power and authority within a state, they also reflect compromises made between those various institutions and people at the foundational moment.  They reflect, sometimes more obviously and sometimes less so, current concepts of efficacy and authority as well as the relative influence of various interests and institutions.  As such they spell out the institutions on which governance is based and the ways in which those institutions can, initially, expect to interact.  They reflect the anxieties as well as the hopes of those who write them.  Such anxieties are reflected in the language dividing power and in the ways in which various holders of authority are bound to uphold it. 

            Scholars assert that the origins of the modern Egyptian state lie in the construction of the army by Muhammad Ali in the early 19th century.  By the end of the 19th century, however, the Armed Forces had been defeated by the British and transformed into an instrument many of whose officers were British.  The power of the army was profoundly weakened, socially and culturally, with the diminution of Egyptian sovereignty in the period between 1882 and 1954.  During those years electoral partisanship, agricultural and commercial wealth, and the authority of the Throne were the major axes of Egyptian political life.  Those decades, chronicled especially well by Naguib Mahfouz in many of his novels, astute and wealthy scions of powerful and wealthy families attended universities in Cairo, London or Paris and returned home to positions of influence.  The British controlled the Army and intervened directly in national political life from time to time through it.  Those who were incapable of or uninterested in studying law, medicine, or literature went to the Military Academy which, until 1936, had largely been the preserve of the older Turco-Circassian elite.

            The Armed Forces returned to the center of the country’s political life in 1952 when graduates of the group of Egyptian middle and lower class cadets who had entered in 1936 overthrew the King and eliminated the remaining British troop presence.  The new rulers were heirs, albeit to an attenuated degree, to the traditions of revolutionary France in which national conscription represents the nation in arms and provides the officer corps with the material to recreate the conscience of a nation. They wrote the Armed Forces directly into the constitution and created an enduring tradition by words, economic reforms, and the staffing of much of the country’s government with army officers.

            To understand the role of the Armed Forces in the 2012 constitution and in constitutional life over the past half century, it is best to begin with the police.  The new Egyptian constitution, as befits a centralized state, invokes both institutions that deal with force, but in significantly different ways.  Employing Nivien Saleh’s translation we can see that Article 199 defines the police (“shurta”) as a disciplinarian civilian organization which preserves order and carries out law and decrees.   The police are, in principle if not always in practice, subordinate to the laws and statutes of the country.  They have no special independent role to play and they are, uniquely in the constitution, called upon to be faithful or allegiant to the constitution (in Arabic their “wala?” is to the constitution and the law).  In this the police differ from the Armed Forces, for this particular language is not to be found in the description of the army on which no such allegiance is enjoined.

            The army is constituted Article 194, the second of a series of articles dealing with national security.  The armed forces are the property (“mulk”) of the people and can only be constituted by the state.  Its task, however, unlike that of the police is not subordinated to law.  The Armed Forces are tasked to to protect the country and preserve its security as well as the security of its territory.  Neither the constitution nor the law figure into their role as defined by the constitution.  They undertake their tasks under the National Defense Council. Article 193, establishing the NDC (which, it will be recalled has existed since 1956), provides it with an expansive definition.  The NDC can not only discuss but authorize strategies for ensuring the security of the country, deals with crises in “all their forms” and adopts the necessary measures for their containment.  Its responsibility to identify and thwart threats to national security both internally and externally and on what the text identifies as both official and “popular” (“sha3bi”) levels.  The NDC is thus an autonomous executive agency as well as a coordinating mechanism for the Armed Forces. 

            The NDC, it is true, is presided over by the President of the Republic and its membership includes the heads of the legislative branches as well as ministers, but the bulk of its members are from the police and Armed Forces.  The constitution is silent on whether only the President of the Republic can convoke it nor on whether his presence is necessary for it to meet.  It might then be described as a formally constituted military council with broad executive powers that it defines itself on which the President of the Republic, two legislative leaders, and two civilian ministers form a distinct minority.

            Earlier analyses of the constitutional role of the armed forces focused on the high degree of institutional independence the army had obtained in regard to legislation and the budget.  President Morsi was, as so frequently repeated, the first freely elected civilian head of state in Egyptian history.  The euphoria surrounding his dismissal of Generals Tantawi and Anan seemed to confirm his supremacy over the Armed Forces.  The constitutional language making him the Supreme Commander of the Armed Forces led analysts to ignore the similar language that had been central to Egyptian constitutions since 1956 (in which the National Defense Council was first constituted) and to ignore the language defining the Army’s role in Egyptian political and constitutional life which were a distinctive contribution of the new constitution.  The new constitution, in other words, expanded the formal role of the Army even as events on the ground appeared to restrict it.

            Confronted with an increasingly polarized political space in June 2013, the Armed Forces could plausibly maintain, to themselves and to a wider circle of Egyptians as well, that the country was faced with a disaster or crisis in some form.  This would invoke Article 193.  It would be implausible to claim that the Armed Forces had either a constitutional duty to remove an elected president from office, but there is no reason to think that General Abdelfattah Sisi saw himself as departing either from his constitutionally prescribed role or the Army’s longstanding view of itself by his attempts to insist that the leading political figures negotiate a solution.  The Egyptian armed forces, like those of many countries including France throughout the 19th and into the 20th century, see themselves as the guarantors of national sovereignty and the integrity of the state rather than of the constitution.  Constitutions, in much of the world, come and go; nations and states continue.  The United States is not unique but it is uncommon in the degree to which the constitution, rather than an army, a monarch, or the institutions of the state taken as a whole, are perceived as central to national identity.  
            If the Armed Forces that General Sisi heads, could legitimately see itself as having a transcendent political role, what of Sisi’s responsibilities as Minister of Defense and the oath he swore?  There appears to be some confusion about the nature of the constitutionally defined oath that Egyptian officials take.  Sisi, like other ministers (as well as legislators and the President) took an oath of office.   The ministerial oath does not however require the taker to preserve the constitution.  Ministers swear only to preserve the republican system and thus presumably abstain from re-creating a monarchy.  They also pledge to defend the people’s interest.  In regard to the constitution, however, they only swear to respect it (“yahtarim”).   Legal scholars and students of language no doubt have much to tell us about what a word whose root lies in the keeping of something as sacred and apart (haram) may be but as far as I can tell the word has no special meaning in Egyptian constitutional law.  Pledging to respect the constitution means simply to abide by it, but not necessarily to defend or protect it.  As should now be clear the Egyptian constitution does use those words in other contexts but only the police—either the Armed Forces nor government ministers—are told to be loyal to it.  American officials similarly placed pledge to preserve, protect and defend the constitution, but not either the American state or the American people. So too to Indian officials swear.  And in neither in India nor the United States do the Armed Forces have any constitutionally defined role.

            So General Abdelfattah Sisi, whether acting prudently or outrageously, may have had no reason to believe that he was breaking his oath or acting outside of his constitutional obligation in the weeks around June 30.  To the contrary he may have felt that he was acting not only in the confines of Egyptian political practice over the past six decades but that, by giving ample warning of a possible coup, he was acting with significant forbearance and in accord with the arrangements that had been negotiated between the Armed Forces and the Muslim Brotherhood during the transitional period.  Because we have so little idea of the actual negotiations around the writing of the 2012 constitution, we cannot know if the Muslim Brotherhood understood just how important the articles under which the Armed Forces were constituted were.  Judging by reports of President Morsi’s continuing belief that he had a unilateral right to determine what the Armed Forces would do, it is possible that neither he nor his comrades understood very well what they were signing on to.  In the rush to ratify the constitution in the waning hours of November 2012 perhaps they neither read it very carefully nor understood its terms very well.   What is clear going forward is that truly subordinating the military to civilian control will be a long and arduous process and that it may not finally be achieved as long as civilian politicians believe they can contain it with appropriate constitutional language.  It may only have come when the Armed Forces are, at long last, no longer inscribed in an Egyptian constitution.