Originally published on this blog in German on November 12th, 2013.

After the fall of the Mubarak regime in February 2011 and the ensuing 18-month “transitional period,” during which Egypt was ruled by a military junta – the Supreme Council of the Armed Forces (SCAF) – the Egyptian army once again intervened in the political fortunes of the country on 2 July 2013. In a television address, the minister of defence and commander-in-chief of the armed forces General Abdel Fattah al-Sisi announced the dismissal of President Mohamed Morsi, democratically elected only a year earlier, and the suspension of the controversial new constitution. In December 2012, despite the withdrawal of left wing, liberal, and Christian representatives from the Islamist-dominated constitutional convention, this constitution had been accepted by referendum with a very low voter turnout. Instead of returning power to the Supreme Council of the Armed Forces, General al-Sisi appointed the president of the Supreme Constitutional Court Adly Mansour interim president, instructing him to form a “technocratic government.” The army leadership wanted this government to remain in place for an indeterminate “transitional period” until early elections could be held. The measures were justified on the grounds that the president, who had emerged from the Islamist Muslim Brotherhood, had been unwilling to engage in a “national dialogue” to end weeks of mass opposition protests against Morsi’s increasingly authoritarian style of government and the bad economic situation in the country. ((For an English translation of the television declaration by General al-Sisi of 3 July 2013 see: http://www.aljazeera.com/news/middleeast/2013/07/201373203740167797.html))

Western observers, notably in the USA, initially saw events above all as a power struggle between two camps in society. On the one hand, the conservative religious supporters of the Muslim Brotherhood were seen as abusing the closely contested democratic mandate of their president to further the Islamicization of state and society. On the other, a young, liberal opposition was seen as fighting to uphold democracy and human rights. According to the majority of Morsi’s opponents, who included not only left wing, liberal, and nationalistic forces but also adherents of the Tamarod youth movement and supporters of the old Mubarak regime, intervention by the army was therefore accepted as a “corrective measure” in the democratic transition process. ((This attitude is illustrated by what US Secretary of State John Kerry had to say during a visit to Pakistan on 1 August 2013. Asked about his view of the events in Egypt in the preceding month, he stated that the removal of President Mursi from office was not a coup but rather an attempt by the military to “restore democracy.” For details see:  http://www.nytimes.com/2013/08/02/world/middleeast/egypt-warns-morsi-supporters-to-end-protests.html?_r=0))

When the events were described as a coup d’état, many asked whether the events of 3 July 2013 did not amount to a new form of “democratic coup” by which the army had intervened on behalf of the nation to guarantee and indeed impose democratic principles over and beyond free and fair elections. The “democratic coup” interpretation draws essentially on the assumption that elections in democracies are not an end in themselves but serve to protect freedom and equality. If they do not fulfil this function, the people as the sovereign have the right even outside elections to topple the government – even if they need the military to do so. ((For one of the first commentaries that spoke of the possibility of a “democratic coup” in Egypt see: Joshua Keating: „Can A Coup Ever Be Democratic?“; Foreign Policy – War of Ideas Blog; 03/07/2013. Available at: http://ideas.foreignpolicy.com/posts/2013/07/03/can_a_coup_ever_be_democratic. The weighing up of the democratic principles underlying the idea is particularly well presented in a contribution by Robinson O’Brien-Bours in the popular PolicyMic Blog, even though the author himself prefers to speak of a “coup revolution” instead of a “democratic coup.” The article is available at: http://www.policymic.com/articles/52951/egyptian-military-coup-democracy-is-not-the-goal-of-government-human-rights-are. Whoever wants a more precise picture of the sense and nonsense of talk about a “democratic coup” can turn to the man who coined the concept, the American constitutional law expert Ozan Varol. See Ozan Varol (2012): “The Democratic Coup d’État”; Harvard International Law Journal, 53(2): 291-356. Download at: http://www.harvardilj.org/wp-content/uploads/2010/05/HLI203.pdf. Interestingly enough, Varol himself sees no “democratic coup” in the case of Egypt, as he writes in a guest contribution to the Opinio Juris Blog. The reason for his assessment are to be found at: http://opiniojuris.org/2013/07/16/guest-post-egypts-non-democratic-coup-detat/.)) The plea for the Egyptian people’s right of resistance to an elected president who abused his mandate and ruled in an increasingly authoritarian manner appears at first glance to be morally justified. However, it brushes aside a number of problems thrown up by democratic theory.

The pioneer of political liberalism John Locke assumed that the most important task of a government was to protect the natural right of the citizens to life, liberty, and property. If it wilfully violates one or more of these rights, it loses its legitimacy, since it exposes the people again to the state of war or nature that they originally sought to escape by creating the state. Such a breach of trust by government, according to Locke, automatically returns the legitimate power of decision to the people, who can then give themselves a new government. Every citizen is consequently permitted to counter unlawful attacks by the government on life, liberty, or property through active resistance. The right of resistance, however, is subject to two conditions. First, in order to avoid chaos and anarchy, a breach of the law by the government must have actually taken place or at least be clearly imminent. Second, legal redress such as recourse to an independent constitutional court must no longer be possible. ((See John Locke (1980/1690): Second Treatise on Government. Hackett Publishing. Chapter XVIII Of Tyranny (esp. § 203 ff) and Chapter XIX Of the Dissolution of Government (esp. § 221 ff).))

Was the removal of President Morsi from office by the Egyptian military therefore a democratically legitimated coup that can be justified by the natural right of resistance of the Egyptian people? In other words, is there evidence of a serious breach of law by Morsi? And had all other legal means of redress been exhausted?

Was There a Breach of the Law?

It can hardly be denied that President Morsi was chiefly concerned to increase his own power and – at best – to push through a conservative religious agenda. Nevertheless, the new constitution, which Western media had tended indiscriminately to describe as Islamist, did not in the view of many experts provide sufficient grounds for assuming that the establishment of an Islamic theocracy on the Iranian model and thus the abolition of the liberal core of democracy were to be feared. ((See, e.g.,: Holger Albrecht “Egypt’s 2012 Constitution: Devil in the Details, Not in Religion”; Peace Brief Nr. 139; United States Institute of Peace; 25/01/2013. Download: http://www.usip.org/sites/default/files/PB139-Egypt%E2%80%99s%202012%20Constitution.pdf. Irene Weipert-Fenner: „Der unbekannte Text: Was steht in Ägyptens umkämpfter Verfassung?“; Sicherheitspolitik-Blog; 13/12/2012. Available at: http://www.sicherheitspolitik-blog.de/2012/12/13/was-steht-in-aegyptens-umkaempfter-verfassung/.)) Criticism, for instance, about the realization of women’s rights, were doubtless justified. The same can be said for restrictions on the freedom of opinion under the pretext of protecting religious sentiments (Art. 44). Also, the privileged treatment accorded Sunni dogmatics and law (Arts. 4, 219) seemed at least problematic.

Nevertheless, no fewer than 12 articles of the new constitution guaranteed individual civil rights and liberties fundamental to democracies. They include the prohibition of arbitrary arrest and detention and the right to a fair trial (Art. 35), the prohibition of torture and humiliating treatment (Arts. 36, 37), the protection of privacy and the home (Arts. 38, 39), and the right to physical integrity (Art. 41). By comparison, beyond the preamble, Islam was mentioned in only four of the 236 articles (Arts. 1, 2, 4, 219). Moreover, the reference to the principles of the sharia as the “main source of legislation”(Art. 2), an element that particularly worried Western observers, and which was contained in almost identical form in the authoritarian constitution of 1971 (Art. 2), had been watered down above all by the continued guaranteed independence of the Supreme Constitutional Court, traditionally under the control of secular judges (Arts. 175-178). ((An English translation of the suspended constitution of 2012 is to be found at: http://niviensaleh.info/constitution-egypt-2012-translation/. An English version of the authoritarian constitution of 1971 is available at: http://www.constitutionnet.org/files/Egypt%20Constitution.pdf.)) Consequently the wording of the suspended constitution of 2012 does not provide sufficient indication of a breach of the law by the Egyptian president.

But did not the president’s real breach of law and trust lie in an attempt to abolish the division of powers constitutive of democracy? Did he not set himself up as a new dictator? Indeed, from his taking office on 30 June 2012, Morsi had, by a series of constitutional decrees, assumed not only far-reaching executive powers but also exclusive legislative competence. As if this were not enough, he finally sought to prevent judicial review of his decisions by the Supreme Constitutional Court in order to impose the referendum on the controversial new constitution.

Ironically, however, the president’s pretensions to power were favoured by a ruling of the Supreme Constitutional Court, which on 14 June 2012 declared invalid certain results of the parliamentary election that had taken place early in the year owing to errors in the implementation of electoral law. By this decision, the judges who had been appointed under Mubarak gave the Supreme Council of the Armed Forces that had been in power up to this point in time the excuse they needed to dissolve the freshly elected parliament in which the Muslim Brotherhood and the Salafists together held more than 70% of the seats. A few days before the decisive second round of the presidential election, the aim was thus presumably not only to weaken the Islamist camp but also to prepare the ground for the very rule by decree that President Morsi had used to the very last. After all, the military expected its own candidate to win the election – ex-general Ahmed Shafik, the last prime minister under Mubarak.

I do not suggest that a parliament dominated by Islamists would have exercised its control function vis-à-vis the president. Nor do I want to give the impression that Morsi’s pursuit of power, let alone the fundamentalist agenda of the Muslim Brotherhood, are legitimated in any way. However, in assessing the coup I believe it is also important to remember that the opposition in Egypt is by no means composed of unanimous and consistent proponents of democracy. The old regime elites from the military and judiciary continued to fight in the ranks of the opposition to maintain their power and privileges.

In sum, the now suspended constitution of 2012, despite all its democratic shortcomings and the undemocratic history of its origins, did not provide sufficient evidence that the downfall of Morsi had forestalled a second Iran. What should also not be forgotten is that Egypt is still in the throes of regime change and minimum democratic standards had been met neither before nor after Morsi’s presidency – as the dissolution of parliament by the judiciary and the army shows. Gradual reform of a constitution that at least guaranteed fundamental individual civil rights and liberties and institutionalized a rudimentary division of powers could therefore in the long term have done more to further the cause of democracy than toppling the elected president and once again annulling the political rules of the game.

Had All Legal Remedies been Exhausted?

If, despite the objections mentioned, we assume that a serious breach of law had taken place, a “democratic coup” would nevertheless have been warranted only if no other remedy within the framework of the suspended constitution had been possible against Morsi breach of trust. But this constitution not only restored de jure essential aspects of the division of power by rescinding all constitutional declarations issued since the revolution (Art. 236), by recognizing the role of the Supreme Constitutional Court as an independent, ultimate decision-making authority (Arts. 175-178), and by providing for new parliamentary elections within 60 days at the most (Art. 229): it also provided for the removal of the president from office in the event of “felony or high treason” (Art. 152).

At least one third of the members of parliament would have had to give their consent to opening impeachment proceedings and no less than a two thirds majority was necessary for dismissal, which would have made implementation extraordinarily difficult. Nevertheless, it was Morsi’s opponents in the judiciary who made it completely impossible: they blocked parliamentary elections on the grounds that the constitutionality of the electoral law first had to be examined. Especially because the military had justified the removal of Morsi as the will of the people, parliamentary elections would have provided an opportunity to give expression to this will in legal form. Even if proceedings for removal from office had failed because of the high hurdles set, and president Morsi had continued to refuse to negotiate with the opposition, it would have been a strong signal of the will to abide by democratic procedures. What is more, parliament would have created a further counterbalance alongside the Supreme Constitutional Court to the power of the president, which could possibly have rendered intervention by the army superfluous. Instead, the opposition now exposed itself to suspicions that it had called for the overthrow of Morsi only because the desired majorities in parliamentary and later presidential elections were not to be had despite all assertions to the contrary.

Not Democratic, but Democraticizing?

In my opinion, the removal of president Morsi from office by the Egyptin army cannot be regarded as a “democratic coup” because the conditions for a right to resistance had not been clearly fulfilled. Anyway, the case of Egypt shows how problematic it is to democratically legitimize a coup d’état. Even if we assume that the army leadership around General al-Sisi intervened in good faith because they saw a direct threat to the civil rights of the Egyptian people, after the coup the question of the legitimate right to resistance arose once again. At the latest since the violent dissolution of a Muslim Brotherhood protest camp in Cairo by the army and the police on 14 August 2013 and the ensuing unrest during which, according to the interim government, more than 600 but probable far more people died throughout the country, such a right of resistance could just as justifiably be claimed for the supporters of Morsi.

In his blog, the American political scientists Jay Ulfelder therefore rightly pointed out that neither the consent of a “felt” majority nor the circumstance that the military did not seek power for itself altered the fact that the ousting of the elected president was an “illegal” act, that is to say one not covered by the constitution. It can consequently not be democratic but at best have a democratizing effect. ((See Jay Ulfelder “Yes, that’s a coup in Egypt”; Dart-Throwing Chimp; 03/07/2013. Available at: http://dartthrowingchimp.wordpress.com/2013/07/03/yes-thats-a-coup-in-egypt/ )) The distinction might at first glance seem a case of legalistic hair-splitting. But the decisive point is that the moral justification of the coup is based not only on the breach of law by the overthrown government but also, and above all, on subsequent democratic reform. However, the extent to which the new rulers are interested in establishing a liberal democracy or merely in consolidating their own power remains to be seen. The fact that the Egyptian military is still not subject to any sort of civil, let alone democratic control, and General al-Sisi’s announcement that he may run for president, should give cause for concern.