Contours of the Crisis, and Its Players
Egypt is in the grip of its worst political crisis since President Hosni Mubarak was deposed two years ago, and shifts in the three-way balance of power between Islamists, secularists and the military make the outcome more difficult to predict. The on-going crisis has dramatically increased the likelihood of protracted political and social instability. Violent street clashes between supporters and opponents of the six-month-old administration of President Muhammad Morsi have claimed eight lives and left hundreds wounded. The sacking of a number of offices of the Muslim Brotherhood, allegations of organized attacks against opposition protesters, as well as the uncompromising and increasingly belligerent rhetoric from both sides suggests the worst is yet to come. Absent a muscular effort by political leaders to contain the crisis, Egypt could be heading into a new season of political violence.
Some of the political leaders on both sides who initially staked out maximalist positions have begun to show more caution, but may lack the political authority or the political will to calm the rising anger of their supporters. In the meantime, the military is sending ambiguous messages and appears to want to remain above the fray, even as each side attempts to drag it back in — and in doing so is willing to give it concessions almost all factions opposed only a year ago.
The crisis is driven by a deeper conflict over the identity and nature of the post-Mubarak Egyptian state, and more immediately over the distribution of power within it, but its immediate focus has been the process by which a new constitution will be adopted. The target of much of the outrage of the past two weeks has been President Morsi's assumption, in his November 22 decree, of absolute executive power until such time as a new constitution has been enacted. It was compounded by his decision to rush the approval of a draft constitution, in a marathon December 1 session by an Islamist-dominated Constituent Assembly. On December 8, Morsi rescinded elements of his decree that had awarded him unfettered executive power and allowed him to ignore judicial decisions, and explained that in the event that the "no" vote prevails in the December 15 referendum on the draft constitution, a new Constituent Assembly would be chosen in direct elections. But the new announcement failed to repair the deep distrust created by Morsi's actions. And the president refused to heed the opposition's demand for a postponement of the referendum, which is scheduled for Saturday —leaving little opportunity to contain the immediate phase of the crisis.
Islamists vs. The Rest
Until now, Morsi and his government have appeared determined to ram through the constitution draft regardless of opposition protests, confident of legitimizing its position by prevailing at the ballot box. They have the support of the Muslim Brotherhood and its Freedom and Justice Party (FJP), the largest in parliament, and also of the Nour Party (the more hard-line Islamist current which surprised many by emerging as the second largest party in the first post-Mubarak parliamentary election) and a range of other Salafi parties and movements. These have coalesced into the "Alliance of Islamic Forces" and have made the question of approving the constitution as a fight for the implementation of Sharia in their protests and other public pronouncements.
Ranged against them is an alliance of convenience comprising of a wide range of liberal, leftist and even moderate Islamist parties — many of which supported Morsi in June's presidential elections — along with the orphaned political networks of the Mubarak regime, who had backed former Air Force commander Ahmed Shafiq. The main political parties have gathered under an umbrella National Salvation Front (NSF), led by Mohamed ElBaradei, to challenge the legitimacy of the constitutional process. Despite its disparate nature, the NSF has agreed on two basic demands: the rescinding of the decree (now partly achieved), and the postponement of the referendum to allow for negotiations on the content of the constitution. These political forces have been joined by elements of the administrative arms of the state, most notably judges who would be required to supervise the referendum. But these elements are also divided, and confusion remains as to whether they will stage the poll.
The military has tried to remain on the sidelines of the crisis, issuing cryptic statements about "always siding with the people." Some elements on each side of the political divide hope to keep it away, fearing a return to the disastrous military-led transition and the undermining of civilian rule in the months that followed Mubarak's ouster. But other elements on both sides seek to draw in the generals: Morsi's opponents hope that the gravity of the crisis will eventually force the army to intervene; the government is enlisting it to provide security amid the political turmoil, and Morsi has authorized it to arrest civilians and impose de facto martial law. While the generals currently in command of the armed forces may accept Morsi's invitation, sentiment within the wider military corps is unclear. Nor is there clarity on the military's position on the referendum, despite the constitutional draft's concessions to military autonomy from civilian oversight.
Egypt’s foreign partners, surprised by the speed and intensity with which the crisis has evolved, have publicly expressed concern and privately applied pressure on the presidency. Western officials decline to become involved in a domestic political conflict, and feel unable to take a position on the constitution, an Egyptian sovereign matter if there is any. Most decision-makers in Washington and European capitals are reluctant to be seen to be intervening, and options such as delaying bilateral loans or an IMF package are not currently on the table, despite EU aid to Egypt having been made conditional on good governance. The window in which domestic and foreign actors can act to calm the situation through negotiations, however, is rapidly closing. The long-term consequences for Egypt of a failure to arrest and contain the crisis ought to alarm both Egyptians and policy-makers everywhere invested in the country's wellbeing, and in its ability to serve as an anchor for regional stability.
Authors of the Impasse
The bulk of the blame for the immediate crisis lies with President Morsi and his allies, their handling of the constitutional process raising doubts about their ability and desire to ensure an inclusive and stable post-Mubarak political order. But Morsi's mistakes have been made in an environment substantially shaped by the rules for transition laid down by the Supreme Council of the Armed Forces (SCAF), which claimed executive power after easing out Mubarak. Morsi has also been guided by his reading of the intentions of his political opponents, particularly their willingness to rely on judicial mechanisms to thwart the Freedom and Justice Party's electoral victories.
Many in the opposition never accepted the flawed transitional framework set in motion by the SCAF (supported by Islamist movements), which mandated that a new constitution would be adopted at the end of the transition process, rather than as its first step. The requirement that the Constituent Assembly be selected by parliament also gave the winners of parliamentary elections a lock on the constitution-drafting process. Although a judicial challenge had succeeded in reversing the parliament's first attempt at forming a Constituent Assembly, many in the opposition remained unhappy with the under-representation of minorities, women and representatives of civil society and revolutionary groups in the successor whose formation was brokered by SCAF.
On August 12, Morsi issued a presidential decree ordering the retirement of the top leaders of the SCAF, most importantly the Mubarak-era Defense Minister General Muhammad Tantawy. Morsi also cancelled the junta's previous constitutional declaration of June 17, which had imposed a de facto power-sharing arrangement between the generals and the elected president. The August decree was criticized by some, but was also widely welcomed as a mechanism to curb military interference in the political sphere —and it had clearly been devised in collaboration with top generals uncomfortable with the political role being carved out by Tantawy. But the decree also meant Morsi had claimed from the generals the effective power to legislate in the absence of the dissolved parliament —and to issue new decrees such as the one that provoked the current turmoil. That power is now being contested by the opposition, with some legal merit: As prominent Islamist-leaning jurist Tareq al-Bishri has argued, since President Morsi was elected under the interim constitution, he cannot have the power to alter that document.
The Constitutional Showdown
The Gaza cease-fire announced on November 20 by President Morsi a day after meeting with US Secretary of State Hillary Clinton was a major diplomatic triumph, not least because it marked a reactivation of Egypt’s role as an agent of regional stability —affirming the new government's importance to Western strategic goals. But he appears to have overestimated his currency at home even as he basked in the accolades from abroad.
November 22 dawned amid a swirl of rumors, and cadres of the Muslim Brotherhood were summoned to be ready to protest at Cairo’s Appeals Court, a symbol of judicial power, in the expectation that judges were about to dissolve the upper chamber of parliament and overturn Morsi's August decree, thereby restoring the generals to power. That same evening, Morsi launched what his supporters saw as a preemptive strike by issuing a new constitutional decree which, inter alia, put his authority beyond the reach of the courts. As a senior Muslim Brother explained: “We — the presidency — obtained information that the Supreme Constitutional Court was not only going to dissolve the Constituent Assembly, but also the Shura Council and repeal the 12 August decree. This would bring back SCAF and Tantawy to rule the country.”
Whether Morsi's November 22 decree came in response to specific information, or simply reflected assumptions made on the basis of the Supreme Constitutional Court (SCC)'s previous actions, is a matter of considerable conjecture in Cairo. The presidency and the Muslim Brotherhood have yet to present any evidence for their claims.
It is not accurate to label the SCC as entirely beholden to the old order, even if a handful of its nineteen judges may indeed be bent on obstructing Islamists at any cost. And in his effort to neutralize Egypt’s highest court, Morsi clearly over-reached, putting himself effectively in charge of all three branches of government. Instead of working to build a political consensus on the process —perhaps in response to concessions on the content of the constitution —Morsi launched a frontal assault that antagonized much of the judiciary, which remains a key administrative gatekeeper in the electoral process. Even among Morsi allies in the judicial establishment, such as the former judges Ahmed and Mahmoud Mekky (who serve respectively Vice-President and Minister of Justice), expressed “reservations” about the decree.
The November 22 decree includes a number of distinct steps, some of which were more welcome to his political rivals than others.
- Ordering the reopening of all criminal cases against former regime officials from incidents involving the murder of protestors before Mubarak's fall. Perhaps indicative of Morsi's reluctance to antagonize the military, that provision does not cover the incidents in which more than 150 Egyptians were killed by the security forces during the period SCAF held the reins.
- Extending the deadline for the Constituent Assembly (CA) to draft a new constitution from December 12 to February 12, buying time to resolve the disputes that had prompted secular and Christian elements to suspend their participation in the Assembly's work in protest at Islamist dominance in the body.
Other aspects were more controversial, but could nonetheless have been (and still might be) resolved in negotiations. These include:
- The firing of public prosecutor Abdel Megid Mahmoud, a Mubarak holdover whom Morsi had previously attempted to dismiss, and who is often blamed for the state's lacklustre record in securing convictions in police brutality and corruption cases. Opposition groups objected less out of support for Mahmoud than out of concern over the extension of presidential powers to include an attack on the judiciary;
- Insulating the Shura Council (the upper house of parliament) and the Constituent Assembly (CA) from any judicial dissolution. The Supreme Constitutional Court had dissolved the lower house —Egypt's first democratically elected parliament —on a legal technicality, and it had been set to rule on the Assembly's legality on December 2. Despite a preliminary report issued in mid-November that recommended against its dissolution, it remained uncertain how the SCC would rule. Many secularists had hoped it would dissolve the current CA, whose composition has been in dispute since June. That would have forced Morsi to appoint a new CA under the August 12 decree, which would then have become the subject of new court challenges. Morsi hoped, therefore, to use his decree to protect the CA's work from judicial disruption, and prevent the constitutional limbo of the period from being prolonged. The political calculation may also have been that secularists would be forced to return to constitutional negotiations once deprived of the alternative of litigation as a delaying tactic.
This provision also represented a settling of accounts with a judiciary perceived by the Morsi administration to be dominated by Mubarak-era jurists determined to deny the Islamists the authority they believe they've won through the ballot box. Indeed, it came on top of a campaign of rhetorical and, at times, physical intimidation of judges. There is merit to the Muslim Brothers’ claims that the judiciary includes corrupt judges loyal to the former regime —and it's worth remembering that many leader of the Brotherhood, including Morsi himself, had in the Mubarak era been sent to prison for their political affiliations by regime-friendly judges. Their suspicions were amplified by the June 14 dissolution of parliament, as well as the public boasts of one member of the SCC bench that the Court was collaborating with SCAF to thwart Islamists. Morsi had previously attempted, without success, to restore the parliament, but received no support from the secular opposition whose response was governed less by principle than by politics: New parliamentary elections would give them an opportunity to reduce the Islamists' strength in the legislature.
But the most contentious aspects of Morsi's edict were those expanding his own powers —and which appear to have been reversed by the President's December 8 announcement, in an attempt to defuse the crisis. These included:
- Article 2, which protected all of Morsi's previous and current decrees from judicial oversight until such time as a new constitution was in effect. It was this evident reach for immunity from judicial oversight that resulted in the decree being labelled a "power grab”. Even if there was merit to the argument by the Morsi camp that such a move was necessary to protect the constitution-writing process from an activist and unaccountable judiciary, there was no denying that he had claimed autocratic powers. And his opponents were never going to take on trust his repeated assurances that the new arrangement would be temporary, and its powers used judiciously. Suspicions over his intent were amplified by the broad rationale for extra-constitutional action he allowed himself through Article 6 of the decree, which stipulated that "The President may take the necessary actions and measures to protect the country and the goals of the revolution.”
- Alongside the decree, Morsi also enacted a "Law for the Protection of the Revolution", providing for a special prosecution system for cases involving former regime figures, even enabling their retrial if previously acquitted by a court. The law covers the killing of protestors, dissimulation of information and corruption cases, and allows the public prosecutor to detain anyone charged with these crimes for up to six months. Morsi also, on November 25, discreetly approved a new law governing trade unions that included changes opposed by both the state-run federation and independent unions. Among these was a provision requiring the retirement of union leaders over the age of 60, which would rid the state federation of Mubarak-era appointees, but would replace them (for a six month period) by presidential appointees. Labour activists see this as an attempt to take charge of organized labour after nearly a year of constant strikes over wages opposed by the Muslim Brotherhood, like SCAF before it, in the name of stability. The new labour law was a major reason that some of the largest and most brutal protests against Morsi's November 22 decree occurred in the Nile Delta factory town of Mahalla al-Kubra, site of historic anti-Mubarak protests and a centre of the independent labour activism.
Morsi had clearly underestimated the degree of anger his November 22 edict would provoke among rival movements and political parties. He may have hoped that any protests would be limited and short-lived, having thrown a bone (in the form of reopening prosecutions) to the hardened protestors who had taken the worst pummelling from police during the anti-Mubarak uprising and since.
The President appears to make his key decisions largely in consultation with a kitchen cabinet of close confidantes from the senior ranks of the Brotherhood, largely ignoring the advisors from civil society groups that he had appointed to formal cabinet and related positions. That much was clear in the fact that the first of many aides to resign in response to the November 22 decree was Samer Morqos, Morsi’s advisor on democratic transition (and the only Christian member of presidential cabinet), who had not been consulted on the edict. Indeed, it became clear in the days that followed that not even such key allies as Vice-President Mahmoud Mekky and some senior Muslim Brothers did not appear to have been in the loop.
The thinking behind the decree marks a break with the cautiousness Morsi had generally shown since becoming president, driven by a sense of urgency that his administration is unable to win control of large parts of the public administration. In private, presidential advisors complain that their plans have been blocked left and right: they have little control over the interior ministry; face a suspicious and activist judiciary; must deal with pockets of resistance in everyday administration including the ministry of finance, and so on. The dominant characteristic of the Egyptian transition thus far, after all, had been not so much a secular-Islamist divide as an insurgent bureaucratic corporatism across the institutions of the Egyptian state. This phenomenon has been evident throughout the crisis, too, and not only with the judges' rebellion and the strikes of many court circuits: More than 250 diplomats protested orders to advocate for Morsi's decree, and refused to administer the referendum in embassies; police and army officers have insisted that they stand above politics and try to remain agnostic about the president's decision. Morsi's November 22 announcement and its aftermath are, in this sense, an attempt at the consolidation of power and authority by the presidency in the context of resistance everywhere. Even in the recent Gaza crisis, the General Intelligence Service imposed an agreement that did not include the reopening of the Rafah border crossing, for which presidential advisors had pressed. From the Brothers' perspective, the opposition and protest movement was a minor concern; their primary anxiety was driven by the sense that their government's control over the state was tenuous, at best. In this respect, an important element is the mystery over the nature of the deal between Morsi and the new generation of 50-something generals, led by former military intelligence head Abdel Fatah al-Sisi, that took over after Field Marshall Tantawy's ouster.
These understandings may explain, at least in part, the secrecy and authoritarian implications of the November 22 decree, which together with mass mobilization of loyalist crowds in support drew comparisons among opposition activists with the style of the former regime. Egypt's "revolutionary" rails against anything that echoes the autocratic strongman behaviours of Mubarak, or indeed, of SCAF. As a result, the spontaneous demonstrations the following day drew the largest crowds seen in Tahrir Square in six months, and participants ranged from hard-core revolutionaries and liberal and progressive partisans, anti-Islamists ranging from anxious Christians to bon-vivant Muslims, and the felool — “remnants” of the former regime.
Backlash and Panic
The president and the Muslim Brothers were taken aback by the size of the protest, which grew the following week, and by the virulence of anti-Morsi sentiment. In response, Morsi opted to further antagonize his adversaries by rushing the approval of the draft constitution — rather oddly, considering that a few days beforehand he had offered a two-month extension of the drafting process. This only reinforced the impression of a certain level of panic at the presidency — driven as much by fear of judicial activism as a more general threat that the "deep state", alarmed by the developments on the street, might see an opportunity to take matters into its own hands.
Morsi's new deadline for the CA to complete its work required a marathon 17-hour session, during which 236 articles of a draft constitution were rushed through. The document, which most Egyptians will scarcely have an opportunity to read or discuss before the December 15 referendum, was drafted by an almost entirely male, predominantly Islamist body. Christian representatives to the CA had withdrawn in protest a week before Morsi's edict to protest Islamist strictures that were being forced through; by completing its work in their absence the CA has violated an unwritten rule of Egyptian politics since 1919 —that no national decision should be taken without at least token Coptic buy-in. For many Christian and Muslim Egyptians, forcing through a constitution in this way is viewed as a fateful crossing of the sectarian Rubicon.
Morsi claimed he had brought forward the CA's deadline to limit the period during which he would wield extraordinary powers, and also out of fear that that the Constitutional Court would, on December 2, dissolve the Assembly. That explanation is hard to sustain given the provisions of his decree that prevent such a scenario. More likely, he hoped to confound the opposition, shifting the terrain of political battle from the question of his powers to the content of a draft constitution with a heavy Islamist stamp. While the opposition sought to rally support against autocratic measures, the counter-protests by Muslim Brothers and Salafis proclaimed the showdown a contest between supporters of Sharia and “the atheists.” And the content of the constitution is the suit in which Morsi and his supporters feel most confident playing the political game, with the rules handed down by SCAF requiring that the matter be settled, and the outcome legitimized, at the ballot box. The Islamists' demonstrably superior organizational machinery and ability to cast the vote as an issue of defending both Islam and stability put them in pole position to win the referendum.
Rallying the Opposition
The political forces ranged against the Morsi government comprise an amorphous alliance, and even the formal National Salvation Front coalition organized to protest Morsi's decrees is at best a tentative leadership whose authority over those protesting in the streets is far from an established fact. Indeed, its component parts reflect political forces of quite different histories and orientations, which have long been divided over strategies for challenging their common political adversary, the Islamists.
The top-tier leadership of the NSF, for instance, includes former IAEA director Mohamed ElBaradei and his Destour ("Constitution") Party, which refused to recognize the legitimacy of the transition plan since March 2011 and boycotted the Constitutional Assembly from its outset, as did parties such as the Free Egyptians and the Social Democratic Party. It also includes unlucky presidential candidates Amr Moussa —a conservative in the sense that as Mubarak's former foreign minister, he represents a certain sense of continuity with the statist tradition of the former regime —and Hamdeen Sabahi, a neo-Nasserist nationalist. Moussa had been among the most active participants in the Constitutional Assembly until mid-November, and had criticized the ElBaradei camp's refusal to participate, as had other NSF leaders like al-Sayyed Badawi, a leader of the Wafd Party. The NSF, however, is the tip of an iceberg that, on the street, ranges from ordinary citizens suspicious of the Muslim Brotherhood (a suspicion that runs deep across Egyptian society, including among some Islamists, who see the group as secretive and scheming) to professional activists and die-hard revolutionaries and even the "Ultra" fans of Cairo football clubs, whose penchant for violent clashes with the authorities borders on nihilism.
The protestors on the streets, and the increasingly partisan private media, have evolved a binary narrative that results in a language of regime-change. Many demonstrators have been calling vociferously not only for Morsi to annul his decrees, but also for the elected president to step down. Even as staid a figure as ElBaradei now repeatedly uses the Arabic word for “regime” to describe the Morsi administration, echoing the rhetoric of the anti-Mubarak uprising. This has muddled the opposition's message, and enabled the Islamists to accuse protestors and their political opponents of seeking to overthrow a democratically elected president. Only more recently in the crisis have leaders such as ElBaradei insisted on Morsi's legitimacy, and appealed to his "patriotism" in finding a negotiated solution to the crisis.
But despite being appointed coordinator of the NSF —the latest of a series of anti-Islamist coalitions created over the past year —ElBaradei is not a leader of the protests on the streets, so much as he is a surfer on a wave of outrage he cannot control. Nor do his partners in the NSF leadership represent a significant body of organized cadres with the organizational capacity and funding to challenge the Islamists' political machine.
The negotiations with the administration that took place on December 8, which the NSF refused to attend but which several marginal moderate Islamist figures and only one well-known liberal leader, Ayman Nour, had attended, succeeded in obtaining a partial rescinding of the November 22 decree. The NSF refused to attend the talks, insisting that Morsi first rescind the decree and postpone the referendum: in other words, the NSF is interested in negotiating on the content of the draft constitution or a new mechanism to define it, not over the administration's recent moves. This has left the opposition open to criticism that it has laid down maximalist demands that leave little room for Morsi to accommodate while saving face —although it has dropped earlier demands for the referendum to be cancelled altogether.
Even more outlandish demands have come from lesser figures in the opposition camp — for example, Mubarak-era dissident Mamdouh Hamza suggested that Morsi be replaced by a presidential council composed of his opponents. Such demands reflect a leadership playing to the passions of the street rather than adopting a plausible strategy for resolving the political impasse. Of course, even were there to be a compromise between Morsi and NSF leaders, there remains a strong likelihood that some street clashes with more radical activists would continue for a while, as has been the pattern during previous crises under SCAF's stewardship.
The Silence of the Generals
A further complication that is hard to gauge is the role being taken by felool in the current confrontation, and their potential to play a spoiler role in any efforts at compromise. The recent formation of the National Party — affiliated with losing presidential candidate Ahmed Shafiq, now in exile in the UAE because of legal proceedings he faces — highlights the opportunity for a return of Mubarak-regime holdovers, boosted by the embrace of liberals more fearful of an Islamist power-grab than of the return of old regime elements. Many see the Islamists' concessions to military autonomy in the draft constitution as signalling an unholy alliance between the Muslim Brothers and the military. Some liberals fear Egypt is being presented with a choice between majoritarian authoritarianism under the Brotherhood, and the secular authoritarianism represented by the old order. Given that choice, many prefer the latter — hence the calls by some in the opposition for the army to intervene or for Morsi’s overthrow.
The military has signalled its desire for the rival political camps to resolve their differences through dialogue, and appears determined to avoid intervening decisively on the streets. Still, such restraint may not be sustainable should the crisis escalate into more sustained confrontation. The question is on which side would it intervene? Morsi's decree of December 9, allowing for the deployment of the military to secure the streets and the referendum, suggests that the military is being positioned to support the president. But in truth, because the army itself has new leadership, and little is known about the sentiments of mid-ranking officers, the scenarios for a confrontation with protestors are hard to predict. Its past reticence (with a few exceptions, during the transition) to engage civilian protestors would likely make it very cautious about confronting large crowds.
Another unpredictable element is the increasingly violent nature of protests on both sides. Some of the street clashes have certainly been deadly, with both sides deserving a share of the blame. The Muslim Brotherhood has sent organized cadres, some of them armed, to violently disperse protesters from around the presidential palace; while some opposition supporters have also brandished firearms and have sacked and torched at least six Muslim Brotherhood offices, including its Cairo headquarters, while dozens more have been attacked. Sobhi Saleh, a Brotherhood leader, was hospitalized after being beaten up by opponents, secular politician Mohammed Abu Hamed received a similar beating a few days afterwards. The expectation is that attacks on political figures could escalate. Morsi’s newly appointed public prosecutor, meanwhile, has launched investigations of opposition leaders on charges of sedition and espionage.
The most worrying incident came on December 5, when prominent Brotherhood leaders, including the FJP's deputy leader Essam al-Erian, called on television for Islamist supporters to go to the presidential palace and drive off protestors. According to human rights activists, several Brotherhood supporters then detained opposition demonstrators and tortured them to extract "confessions" stating they had been paid. They were released after being held for 12 hours and handed over to police, then subsequently released by the prosecutor's office. Rather astonishingly, President Morsi appeared to cite these "confessions" in his televised speech on the following day as evidence in support of his claims. This easy recourse to organized violence by a disciplined, hierarchical group now in power is deeply disturbing and is driving fears that an organization long accused of having “militias” (as the Brotherhood did until the 1950s) is now in effect opting to use its supporters as vigilantes.
Going ahead with the referendum on Saturday — presented by Morsi as allowing the people decide Egypt's future — will not bring or restore political stability. With a growing number of stakeholders advocating postponement of the vote, including Morsi's own vice-president and the Islamic Studies Academy at al-Azhar, which joined the Coptic Church in calling for negotiations and shelving the referendum, the only major actors who advocate it takes place are now the Muslim Brotherhood and Salafi groups. Morsi's partial concession on the decree has muddled the field slightly, but it remains the case that it is exclusively the Brotherhood and more hard-line groups that want to press on.
The international community has responded cautiously to the Egyptian crisis. Although deep concern has been privately expressed — Egyptian officials have told their Western counterparts that while Morsi had made a mistake, he was unable to retreat and vigorously defend their decision in light of the "undemocratic liberalism" of their opponents — public statements have been tepid. Their hopes to see an inclusive political process in Egypt will be dealt a blow by proceeding with a referendum over the objection of significant stakeholders. Part of the calculus may simply be that they perceive, ultimately, the Brotherhood as the only game in town — the only group with the discipline, organization and reach to stabilize Egypt — and the opposition's stridency overwrought. Yet the situation is not analogous to the confrontations between protestors and SCAF seen during the transition period. This time, after all, one civilian faction is pitted against another, both able to claim substantial public support, with the state apparatus — from judges to generals — attempting to remain on the sideline as it is both wooed and threatened by both.
The moment is urgent. Lasting damage to the civility of Egyptian politics will be the main outcome of the current path Morsi has set Egypt on. He should be pressured to postpone the referendum and engage negotiations on other matters — notably the elements of his decree that amount to a power-grab. In exchange, the opposition should agree, in principle, to find a new solution to reaching an agreement on a draft constitution without resorting to courts to short-circuit the process. With time running out for such moves, one must look beyond to the referendum's result and its aftermath. If the "no" vote wins, the Morsi presidency will have been fully discredited and the pressure for his resignation will only increase, while the transitional roadmap will be in tatters. If "yes" wins, the protest movement is unlikely to die down, may radicalize, and the Brotherhood will have retreated from its previous engagement to seek consensus to a strategy of reliance on the Salafis and a hostile, if not paranoid, attitude towards the secular opposition. Between an Islamist democratic majoritarianism with increasingly authoritarian tendencies and an embittered secular camp tempted by liberal authoritarianism, Egypt's transition is likely to only get more difficult, and, ultimately, unlikely to succeed in creating a reasonably inclusive, democratic and stable political system.
Appendix: Constitutional Grievances
A full analysis of the draft approved by the CA is beyond the scope of this report. The overarching problem raised by the lack of consensus and the hasty manner in which it was finalized, including last-minute changes made to pre-existing drafts that achieved a measure of acceptance by all parties, will create surprises and unintended consequences if it becomes Egypt’s constitution.
The traumatic events of the past two weeks all but ensure that a constitution drafted in a less-than-inclusive process and codified by a referendum boycotted by the opposition will be deemed illegitimate by at least a significant minority of the population. The Islamist majority of the CA clashed with representatives of the opposition, the church and civil society and professional groups over the scope of Sharia's role in the new constitutional order, the question of civil liberties (the Journalists’ Syndicate, for example, opposes the new text because it fails to address Mubarak-era measures that allow the imprisonment of journalists in libel cases), and the power the presidency. A key question ignored in the new draft is the nature of the electoral system.
Among the more contentious aspects of the new constitution:
- Although even Egypt's 1971 constitution stated that the principles of Islamic Sharia law should be the country's "principal source" of legislation, the new constitutional draft includes controversial new provisions in this respect. Article 4 introduces a new role for al-Azhar University, the Cairo-based centre of Sunni Muslim jurisprudence, which is “to be consulted in matters pertaining to Islamic law.” This removes the SCC’s authority under the 1971 constitution to rule on the application of Sharia, and could turn al-Azhar into a powerful fourth branch of government. The scope of the article remains vague, however, as do the circumstances in which al-Azhar can intervene in legislation. Since Article 2 defines Sharia as the principle source of legislation, it creates an incentive for politicizing al-Azhar. The future internal workings of al-Azhar, including the election of its Sheikh (rather than his appointment by the president as previously the case), are to be defined by a future law.
- Secular critics have voiced concern over ambiguities created by the introduction of direct and indirect references to Sharia in the text, creating new possibilities for Islamist legal activists to interfere in matters private and public by appealing to 1,400 years of Sunni jurisprudence. These concerns are amplified by the experience of Hesba lawsuits, in which Islamist activists were able use the courts to forcibly divorce public personalities accused of the apostasy of holding heterodox beliefs. Other socially conservative language — Article 10, for instance, says, “The State is keen to preserve the genuine character of the Egyptian family” — offer legal opportunities for the government to renege on human rights treaties or measures to combat female genital mutilation. Article 44, prohibiting blasphemy, is ill-defined and subject to abuse despite, and potentially undermines the guarantee in Article 45 of “freedom of thought and opinion.”
- The draft constitution codifies the autonomy of the military and its exemption from the civilian political oversight common in most democracies. It requires that legislation concerning the military be reviewed only by a National Defense Council composed of top generals and civilian ministers and headed by the president. It also forces the president to appoint the minister of defense from within the ranks of senior officers.
- Several provisions of the draft constitution appear designed specifically to deal with immediate political imperatives. Article 131, for example, gives the Shura Council, the Islamist-dominated upper house of parliament, the legality of whose election has been challenged in courts, all the powers of the full legislature between the adoption of the constitution and the swearing in of a new elected parliament. Considering the Shura Council election only had a 7% turnout and was largely boycotted by non-Islamists in the expectation that it would be abolished in the future constitution, it will have a free hand in drafting legislation. The same article also gives the president full legislative powers should the courts dissolve both houses of parliament — or if the president resorts to a referendum in case of a dispute over government policy with the parliament. Considering that the constitution contains no deadline for holding new elections (although they have been promised within three months), it allows the possibility that Islamists could pass legislation (including new electoral laws) ahead of the poll, or even to indefinitely postpone new elections. Likewise, provisions for the reconfiguration of the SCC appear to contain measures specifically targeted to remove particular individuals from the court.