Daniel Brumberg of the U.S. Institute of Peace examines important developments in Egypt’s transition.

Egypt held its second round of presidential elections June 16-17. The vote occurred after the High Constitutional Court acted on June 14 to dissolve the democratically elected parliament. What does this all mean? Is this the end of Egypt’s transition?

The events of the past week, including a June 17 declaration by the Supreme Council of the Armed Forces (SCAF) delineating the powers of the president and other matters, suggests that huge obstacles stand in the way before any transition to democracy. The question now is whether a reworked version of the previous political autocracy is being put in place, and if so, whether the opposition has the room, capacity or will to compel, cajole or otherwise press the SCAF and its allies to walk back their own actions and declarations—so that the door is not closed to real political reform. I am not optimistic, at least in the short and even medium term.

Could you explain the High Constitutional Court? What kind of body is this, and what was the intent and consequences of its June 14 declaration?

The High Court is, in effect, Egypt’s supreme court. During the 1980s and 1990s, it had a reputation for independence, and, in that regard, sometimes issued decisions that went against the will of Egypt’s executive branch. But in the 2000s, the court was stacked with allies of the Mubarak regime, and it lost much of its credibility as an independent body. Court chairman Farouk Sultan—who took charge of the June 14 decision to dissolve the parliament—was a lower level judge with close links to the security apparatus and security courts prior to his 2009 appointment. His appointment was seen as a clear indication that the High Constitutional Court was an instrument of executive power. Moreover, he is also chairman of the Supreme Presidential Election Commission, which puts him in a good position to maneuver the court in ways that will support the regime in the event that there are major disputes over the June 16-17 presidential election. What you have here is a great example of “rule by law” as opposed to “rule of law.”

By that, do you mean the manipulation of law to suit political purposes?

Yes. In the case of the June 14 ruling, the issue at hand was the electoral law that was used during the early winter 2011 parliamentary elections. That law provided for one-third of the seats to be contested either on a party-list system or an independent system. The court held that such a system was prejudicial to independents, because only candidates running on a list system were allowed to contest the other two-thirds of the seats on a strictly list system, whereas independents enjoyed the additional advantage of contesting the other third of the seats as well. Using a kind of Orwellian language that spoke of equal rights, freedom and “anti-discrimination,” the Higher Court ruled a double whammy: It not only held that the one-third of seats in question were elected unconstitutionally; it determined that because of that problem the entire parliament was null and void. That was the big shocker, because the decision negated the first truly competitive election Egypt had held in more than 50 years. Inasmuch as this election was the foundation for everything that would follow, the act of annulling it pulled the rug out from under the entire transition.

What were the implications for the presidential election that followed on June 16-17?

The election pitted Muslim Brethern leader Mohammed Morsi against former Mubarak ally (and former prime minister) Ahmed Shafiq. I think it is fair to say that the prospect of a new president coming from the ranks of the Brethren, together with a parliament in which 70 percent of the seats are held by Islamists, was too much for the military and its tacit as well as explicit allies. So the first move was to invalidate the parliament, thus ensuring that the victor of the second round of presidential elections would be deprived of a partner (or competitor) in an existing parliament.

That suggests a rather elaborate plan, which is quite extraordinary. How do we know all this, and what is more, to be fair, didn’t the High Court’s decision have some validity?

On the first, the answer is that we can only make educated, reasonable guesses. SCAF’s decision-making process is deliberately opaque, but I think the above analysis is reasonable and amply supported by the observable facts. As to the second question, Egyptian opposition leaders, including some from the Muslim Brethren itself, have stated openly that they would have accepted a decision by the court only to rule that one-third of the parliament is invalid. But to rule the entire body invalid was seen as crassly political and legally questionable. Finally, everything that has happened since supports the thesis that the decisions of the last few days are basically aimed at undermining key elements of the democratic transition.

Those decisions would include several amendments to the SCAF’s 2011 “Constitutional Declaration”—amendments that increase the power of the military itself, right?

Yes, indeed. The SCAF’s June 17 amendments limit the power of the president while reserving important powers for the military, including the powers of the parliament itself until a new parliament is elected. Moreover, and perhaps most decisive at this stage, the amendment of Article 60B of the SCAF’s original 2011 Constitutional Declaration could--in theory-- make it possible for the SCAF to appoint a new 100-member Constituent Assembly, a body whose function is to write the constitution. The current assembly was literally appointed by the now defunct parliament only two days after the Higher Court issued its controversial decision. Now with the parliament dissolved, the entire fate of the assembly is up for grabs. The SCAF might invoke the June 17 amendments to dissolve it, or the it might simply invoke Article 60 to interfere in its decisions. Either way, the effort to write a new constitution has been vastly compromised.

That is a somewhat grim assessment. Was there any basis for the military’s actions?

SCAF leaders have made two points: First, given the Higher Court’s own decisions and the fact that the existing 2011 Constitutional Declaration has little to say regarding the specific powers of the president, that SCAF had to issue these amendments. Second, SCAF leaders insist that the president will exercise real authority, that only certain key domains, such as the declaration of war or the appointment of defense minister, are being reserved for the military, and that the SCAF has every intention of assuring that the transition to democracy continues. On the first point, I suppose it is not wrong to assert that the decision of the Higher Court left something of a constitutional void. But what led to that decision in the first place, and was it reasonable? On the second point we will have to wait and see. But the signs are not good.

Presidential candidate and Muslim Brethren leader Morsi has apparently won by a slim margin of 52 percent. Do Egyptians view the election as fair and legitimate, and what happens now assuming that Morsi is declared the victor?

I think the very recent decisions I mentioned have undercut the credibility of this second round of presidential elections. The fact that you have something like 30 percent participation is telling. Both camps campaigned aggressively to get out their most loyal voters: in the end, many Egyptians did not have a voice and stayed home. But Morsi appears to have won, and now he must find a way to deal with the military and push for a credible process for reelecting the parliament and selecting a new Constituent Assembly—or he will have to deal with the possibility of increased social and political unrest. But it is not inconceivable that Shafiq will contest the election results, while the huge crowds that massed in Tahrir Square on June 19 put pressure on Morsi to defy the military. He is in a very tough spot.

Was there any way to avoid all of this?

Given the stakes, it was perhaps inevitable that elements of the old order would move to undercut the opposition—and the Muslim Brethren in particular. I have no idea about whether the Brethren and other forces could have prevented this. But I am sure of one thing: From the outset, the opposition has suffered from deep fissures between Islamists and non-Islamists and within these groups as well. Absent a unified vision of the transition and its basic rules, it was very hard for the opposition to create the leverage it needed to negotiate effectively with the SCAF. Muslim Brethren leaders, in particular, could have done a better job reaching out to non-Islamists, many of whom feared domination under an Islamist majority in the parliament. Then again, the Muslim Brethren suddenly found themselves in new and uncharted waters—together, with the Salafists, they constituted an overwhelming majority.

How to manage this unexpected reality—so that the tacit allies of the previous regime who fear Islamists could imagine becoming allies of a new democratic order headed up by Islamists—was a difficult challenge. The sad thing is that sometimes the learning process that political leaders must go through to define more effective alliance-building strategies comes only after it is too late. Morsi is now saying all the right things, reaching out to those groups that were wary of Islamist hegemony and thus ready to sit out the election or even vote for Ahmed Shafiq. If he can mobilize support across the fractious political spectrum that constitutes the opposition, he might regain some leverage. But I also see a lot of “bandwagoning” from secular and veteran leftist leaders on the side of the SCAF.

This suggests that some of them might prefer a reconstitution of the previous “protection racket system” over confrontation with the military and an alliance with Islamists. Such calculations—and the identity conflict from which they arise—have been a boon to defenders of the old order, as well as the Achilles heel of the opposition.