Parsing Morsi’s Constitutional Declaration

Any reasonable person should object to Morsi’s November 22 constitutional declaration: it neuters the judiciary at a time when the president holds exclusive legislative and executive authority and, in an article that recalls constitutions written in the finest Soviet style, declares that the president “may take the necessary actions and measures necessary to protect the country and the goals of the revolution.” Is this the beginning of the Muslim Brotherhood caliphate of which Newt Gingrich warned us?

Not really. We must recognize that the Egyptian judiciary has in fact played a counter-revolutionary role since the ouster of Hosni Mubarak. It has shown little inclination to prosecute corrupt members of the old regime, or to bring to justice those responsible for attempts to suppress the revolution violently. The June 2012 decision clearing Hosni Mubarak and his sons of corruption charges was widely deemed a mockery of justice. And in an act of acquiescence to the military, the Supreme Constitutional Court declared a freely elected parliament to be unconstitutional and voided all of its legislation, even though it could have ruled much more narrowly and called for fresh elections only for the third of seats that were in dispute. It is the fault of the court, and only the fault of the court, that Morsi is now a president governing without a parliament.

That same extraordinary decision left the court poised to derail the drafting of the new constitution. The court was to decide whether voiding parliament made illegitimate the constituent assembly that parliament had established. Given the court’s track record—and, one suspects, the tenor of back-channel communication between the president and the judges—it seems entirely likely that they were set to declare the constituent assembly unconstitutional and thus to send the current, and largely complete, draft constitution into the dustbin.

That seemed to be the eventuality that Morsi wished to avoid. With no parliament, he would have been forced unilaterally to form a new constituent assembly, and would likely face significant pressure from his own party to tilt the new body even more toward the interests of the Muslim Brotherhood. Would that eventuality be less authoritarian than his current declaration? Would it produce a more legitimate draft constitution? The current constituent assembly has been a hotbed of discontent, with various constituencies storming out at various points. But all that disagreement has had some salutary effects: the Salafists have been disappointed that Article 2 of the new constitution does not elaborate upon the 1971 constitution in declaring shari’a to be the source of Egyptian law. Their attempts to entrench inequality in an article on the status of women have been frustrated: the article on women has been eliminated, so that the only statement on gender in the draft is now in Article 30, which states that all citizens are equal before the law regardless of gender, race, language, religion, opinion, social status, or disability.

So Morsi’s authoritarian declaration may have prevented even more authoritarian measures that would slow down the transition and frustrate democracy. What he has done is neither less nor more outrageous than FDR’s plan to pack the Supreme Court with new appointees when he faced an ideologically motivated bench interfering with measures necessary to the nation’s welfare. We in liberal democracies are rightly nervous when presidents clip the wings of the judiciary. But the present judiciary still holds strong ties to the ancien régime. Which is perhaps why some reform-minded judges in Egypt, such as the group Judges for Egypt, have had a mixed reaction to Morsi’s constitutional declaration. Reaction has also been mixed from Morsi’s own justice minister, Ahmed Mekki, who previously proposed a law granting full independence to the judiciary. He has publicly criticized the declaration while still supporting the president, and suggested that the crisis will dissipate after ongoing talks between Morsi and the Supreme Judicial Council. That seems in fact to be happening: with the sole stipulation that the current constituent assembly cannot be resolved, Morsi has agreed to relinquish the constitutional declaration’s supra-judicial powers.

Why, then, have the streets been filled with protesters? Because the measures Morsi adopted are justifiable in some ways but still authoritarian. They deserve to be met with resistance. Various parties and movements of the secular left have rightly seized upon this moment as a much-needed rallying point. It has made them more firmly united and returned them to the headlines. Now is the time for them to re-energize and to show their continued relevance to the revolutionary cause. It is enormously positive to see the announcement of a National Front Party uniting various liberal factions under the leadership of Mohamed El’Baradei, Hamdeen Sabbahi, and Amr Moussa. The Egyptian public must see that the Muslim Brotherhood, a hierarchical organization with a long history of expecting disciplined obedience to its leaders, simply cannot yield politicians with full respect for democratic procedures. The left must also be careful, however, not to be seen as overly disruptive by a public weary of instability: the heavy-handed measures unleashed on protesters, carefully described by Juan Cole, will not necessarily make those protesters sympathetic in the eyes of the average Egyptian.

So here is the sum. Morsi is right to see elements of the judiciary as frustrating the transition to democracy. But he is wrong to use authoritarian tactics as a counter-measure—in a democratic revolution, both procedures and outcomes matter. The parties of the left are thus right to resist him. But if they are too energetic in their resistance, they will be committing political suicide. And we in the West who have been waiting with bated breath for Egypt’s Islamist president to bring the crazy should recognize that we are still waiting.

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