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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The Kurds

[W]hen we refer to all Kurdish fighters synonymously, we simply blur the fact that they have very different politics. . . right now, yes, the people are facing the Islamic State threat, so it’s very important to have a unified focus. But the truth is, ideologically and politically these are very, very different systems. Actually almost opposite to each other. —Dilar Dirik, “Rojava vs. the World,” February 2015

The Kurds, who share ethnic and cultural similarities with Iranians and are mostly Muslim by religion (largely Sunni but with many minorities), have long struggled for self-determination. After World War I, their lands were divided up between Iraq, Iran, Syria, and Turkey. In Iran, though there have been small separatist movements, Kurds are mostly subjected to the same repressive treatment as everyone else (though they also face Persian and Shi’ite chauvinism, and a number of Kurdish political prisoners were recently executed). The situation is worse in Iraq, Syria, and Turkey, where the Kurds are a minority people subjected to ethnically targeted violations of human rights.  

Iraq: In 1986–89, Saddam Hussein conducted a genocidal campaign in which tens of thousands were murdered and thousands of Kurdish villages destroyed, including by bombing and chemical warfare. After the first Gulf War, the UN sought to establish a safe haven in parts of Kurdistan, and the United States and UK set up a no-fly zone. In 2003, the Kurdish peshmerga sided with the U.S.-led coalition against Saddam Hussein. In 2005, after a long struggle with Baghdad, the Iraqi Kurds won constitutional recognition of their autonomous region, and the Kurdistan Regional Government has since signed oil contracts with a number of Western oil companies as well as with Turkey. Iraqi Kurdistan has two main political parties, the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK), both clan-based and patriarchal.

Turkey: For much of its modern history, Turkey has pursued a policy of forced assimilation towards its minority peoples; this policy is particularly stringent in the case of the Kurds—until recently referred to as the “mountain Turks”—who make up 20 percent of the total population. The policy has included forced population transfers; a ban on use of the Kurdish language, costume, music, festivals, and names; and extreme repression of any attempt at resistance. Large revolts were suppressed in 1925, 1930, and 1938, and the repression escalated with the formation of the PKK as a national liberation party, resulting in civil war in the Kurdish region from 1984 to 1999.

Syria: Kurds make up perhaps 15 percent of the population and live mostly in the northeastern part of Syria. In 1962, after Syria was declared an Arab republic, a large number of Kurds were stripped of their citizenship and declared aliens, which made it impossible for them to get an education, jobs, or any public benefits. Their land was given to Arabs. The PYD was founded in 2003 and immediately banned; its members were jailed and murdered, and a Kurdish uprising in Qamishli was met with severe military violence by the regime. When the uprising against Bashar al Assad began as part of the Arab Spring, Kurds participated, but after 2012, when they captured Kobani from the Syrian army, they withdrew most of their energy from the war against Assad in order to set up a liberated area. For this reason, some other parts of the Syrian resistance consider them Assad’s allies. The Kurds in turn cite examples of discrimination against them within the opposition.