Egypt’s Constitutional Endgame: Where Confusion Is the Rule

With breathtaking speed and deep controversy, Egypt’s draft constitution heads for a Dec. 15 referendum. Has the shouting only started?

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MAHMOUD kHALED / AFP / Getty Images

Egyptian protesters run from tear gas after attempting to remove barriers outside the presidential palace in Cairo on Dec. 4, 2012

Egypt’s constitutional endgame is upon us. And almost nobody in the country — including the document’s drafters — seems to be truly prepared.

On Nov. 22, when President Mohamed Morsi issued his stunning decree granting himself sweeping powers, one of the least publicized aspects of the declaration gave the country’s Constituent Assembly an extra two months to finish drafting the new constitution — extending the deadline into early 2013.

One week later, Morsi abruptly and mysteriously shifted tactics. Suddenly the constitution was ready for approval, and a national referendum on the document is now scheduled for Dec. 15.

(MORE: Washington’s Two Opinions of Egypt’s Islamist President)

What followed was something approaching a live televised political farce. In a marathon session on Nov. 30 lasting more than 16 hours and ending after 6 a.m. Cairo time, the assembly’s overwhelmingly male and Islamist members sped through and approved each of the 230 articles as if they were desperately trying to meet a looming deadline.

The final document not only doesn’t represent any sort of national consensus, it also doesn’t even seem to have benefited from proper proofreading. There were words missing and grammatical mistakes. Language suddenly appeared that hadn’t been present in any of the multiple proposed drafts. At one point, one of Morsi’s own legal advisers, Fouad Gadallah, stood up to object to an apparent mistake in the text and was shouted down by the assembly’s head.

“They weren’t ready,” says Heba Morayef, Egypt director of Human Rights Watch, who estimates that she watched 13 hours of the session. “They knew this document wasn’t ready and should not have gone forward.”

The approved text contains a number of aspects that alarm critics. The issue of equality for women is qualified by the stipulation that women must balance that with their duties to the home. Laws dealing with women’s rights must not contradict Shari‘a — Islamic jurisprudence. And al-Azhar, the highest seat of learning in Sunni Islam, now plays a vaguely defined role in vetting any laws that might touch on Shari‘a, raising the prospect of unelected religious authorities holding sway over democratically elected lawmakers.

(MORE: Transcript of TIME’s Interview with Egyptian President Mohamed Morsi)

On the plus side, there are new and solid protections against arbitrary detention and torture by the police. But a clause outlawing military trials for civilians was mysteriously watered down at the last minute and approved with minimal debate.

The effect of the apparent shotgun approval on Egypt’s already chaotic and unstable political scene has been dramatic. Even before the sudden constitutional stratagem, Tahrir Square had been filled for days with angry demonstrators protesting Morsi’s perceived dictatorial power grab. Egypt’s judges had already been up in arms over the decree, which robbed them of any oversight over the President’s decisions or the status of the Constituent Assembly.

The intense street action has been driven up a level, with many protesters openly labeling the controversy the start of the second Egyptian revolution. Numerous independent newspapers and satellite-television channels went on strike Tuesday, ceasing publication or broadcasting blank screens. As of Tuesday evening in Cairo, several large protest marches from around the city were converging on the presidential palace — at one point fighting through barrages of tear gas fired by police.

Meanwhile, the judges seem to be struggling to come to terms with Morsi’s power play. Several judicial districts have gone on strike, and the Judges Club — an unofficial body — has sworn that its members would not act as monitors for the upcoming constitutional referendum. However, the Supreme Judicial Council has publicly pledged that it would order judges and prosecutors to serve as electoral supervisors, raising the prospect of open fissures within the judiciary and possible disciplinary action for those judges who refuse to supervise the voting. A Dec. 2 session of the Supreme Constitutional Court was effectively sabotaged by crowds of Morsi supporters who surrounded the courthouse and prevented many of the judges from entering the building.

(MORE: Washington Warily Eyes Egypt’s Constitutional Crisis)

In a way, the constitution-drafting process has gone much the same route as the preceding 23 months since Hosni Mubarak was ousted from power in February 2011: lots of confusion, mixed signals and divisiveness — followed by rapid deadlines that leave no room for debate or consensus building.

That tone was first set back in March 2011, when the Muslim Brotherhood mobilized its cadres to approve a national referendum that set the country toward fast-track parliamentary elections before a constitution could be written. The tactic was immediately decried as a cynical Brotherhood ploy designed to give the Islamist group and its decades-old grassroots machine an electoral advantage over the newer postrevolutionary political forces.

That parliamentary election, one year ago, produced an overwhelming Islamist majority. The parliament was dissolved in the summer of 2012 on a technicality by the Supreme Constitutional Court, sparking the current war between the Muslim Brotherhood and the judiciary. But the damage had been done, since the parliament had already selected the members of the Constituent Assembly, stacking the body with Islamists.

By fast-tracking the constitution, Morsi and his supporters seem to be essentially giving up on the entire idea of national consensus. The Constituent Assembly had been plagued from the start by mass withdrawals from secularist and Christian members, who said their minority viewpoints were being ignored. Now a decision appears to have been made by the Brotherhood and its Salafi allies to simply forge ahead regardless.

The Islamists had the numbers within the Constituent Assembly to approve basically anything they wanted. And once the referendum comes, they feel they will be able to marshal more than enough votes to get the document approved. “There’s a sort of confident arrogance that comes with the certainty that they know they can mobilize voters,” said Morayef, of Human Rights Watch.

(MORE: Morsi’s Moment)

They might be right. Even Morsi’s most implacable opponents are pessimistic that they’ll be able to defeat this constitution in a national referendum. Morsi’s supporters are already persuasively framing the vote as a question of “chaos vs. stability,” since a defeat would set the country back to square one and prolong Egypt’s time without a constitution or a parliament.

Amr Darrag, a senior official with the Brotherhood’s Freedom and Justice Party and secretary general of the Constituent Assembly, says Morsi has proved he is in a hurry to finish the constitution and elect a new parliament — at which point he will go back to being a normally powered President. “You can’t call a man a dictator when he is trying to give up power,” Darrag says.

With voting for expatriate Egyptians looming on Dec. 8 and the national referendum one week later, the country seems to be careening toward a chaotic and divisive confrontation. One indication of the fast-rising stakes: Mohamed ElBaradei — the longtime reform advocate who generally avoids street politics — has uncharacteristically taken to leading multiple protest marches. In a Dec. 3 editorial in the Financial Times, ElBaradei described Egypt’s short-term future in nearly apocalyptic terms. “After 23 months of struggling to bring democracy to Egypt, is this the best we can do? A President claiming dictatorial powers. A parliament packed with Islamists. And a draft constitution, hastily cobbled together without basic protections for women, Christians and all Egyptians,” ElBaradei wrote. “And thus we are back in Tahrir Square. The situation is volatile: an Egypt bitterly divided between Islamists and the rest of the country, opening the door for scenarios such as army intervention, a revolt of the poor, or even civil war.”

Ashraf Khalil is a Cairo-based journalist and author of Liberation Square: Inside the Egyptian Revolution and the Rebirth of a Nation

14 comments
HAMID
HAMID

the our problem is between democratic president and dictatorship ofopposition

leepoint
leepoint

Troubling. If the constituent assenbly had additional time and they were rushed into a completion without working out disagrements that would protect minorities and keep the governemt in cicilian control, why have the overthrow in the first place. This would replace one dictator with another dictator. Islam is one sorry state and it is beginning to look like they are again not going to make progress.Protect religious right but don't let them run the show. 

6thangle
6thangle

A country even dont need a constitution to be a democratic country. Example like UK the mother of democracy!! What you need a fair election process to elect rulers and law makers. If you don't believe in election and afraid of it then dont claim you want democracy. First win against your own inner dictatorial desire before cry for democracy.

SawsenWerfelli
SawsenWerfelli like.author.displayName like.author.displayName like.author.displayName 3 Like

Way to go Morsi ... way to go.

All muslims around the world, and especially here in Tunisia, are proud of you and of the choice of the Egyptian people.

Now I wish I was Egyptian ... really.

Those from the outside and the minority from the inside who want to impose their secular views and impose THEIR choices on the Egyptian People ignoring the fact that they have already made their choice, just have to shut the hell up. Ain't no two sorts of democracy, one for the muslims and one for the west, one that fits THE WEST'S CHOICE FOR US! and one that fits our own choice ... there is only one democracy ... and the People made their voice heard ... so listen to it and shut the hell up. 

You supremacist westerners should stop self-appointing yourself as the only responsible ones who know what's best for those irresponsible Peoples of the world!

leepoint
leepoint like.author.displayName like.author.displayName 2 Like

Saw, I wish you would think about minority righta. If a minority has no protection, then you have something other than democracy; you have a dictatorship of the majority. What if you wake up one morning and find yourself in the minority. Would you want the majority to ram their lifestyle down your throat. Majority rule with minority rights seems much better to me. And if you think it out maybe it would be better for you as well.

TarekSawaf
TarekSawaf

@leepoint This is a very healthy discourse to be had. Both of you are correct. The will of the people should be law. There should also be protections for minority rights. In the drafted constitution, Judaism and Christianity are mentioned, and this clearly should be expanded.

unreconspatriot
unreconspatriot

I actually took the time to read this today,  good grief it is a lousy document. They throw the words democracy, republic and freedom around like a WWF wrestling match, specify a supreme constitutional court and then contradict it with Al Azhar and the Grand Sheikh for law review. They then say everyone has equal rights, but then say Sharia is the guiding principle. It is like they were doing crystal meth when they wrote it. It is an unbelievably pathetic document that reflects their inability to come out of the 7th century. Morsi should just leave for the sake of not embarrassing their nation in the world view. Oh, and they call themselves the Arab Republic of Egypt. Egyptians are not Arab, not in DNA, not in culture. Weird.

thetitaniumdragon
thetitaniumdragon like.author.displayName 1 Like

Look. I know people don't like copying things, but the US has a Constitution, and we really will let you copy off our paper.

Just saying. Remove all the slavery stuff, remove the cancelled out materials, merge the House and Senate, have the president be elected by popular vote, make it so that district lines are drawn in a politically neutral manner, and you're in pretty good shape.

We really won't tell the teacher you copied off us, and it will take you like two hours. Heck, if you guys ask me to I'll even write it for you, and even talk about how badass your civilization and its history has been in the preamble.

leepoint
leepoint

the, how about including a bill of rights that provides for protection of many human rights.

antonmarq
antonmarq

Egypt, like most of the Arab world, is stuck between two worlds. One world embedded in religious ideologies of the past, and the other world enticed by the possibilities of the future. One dominated by ancient traditions controlled by elders, and one dominated by technologies and controlled by the young. Unfortunately, for the elders, the march of time moves toward the future, as for the past, well that will be recorded in library books.  

Dachman
Dachman

Yes lets jump all over Israel because Egypt is so good to its own people.

I bet in a few months Egyptians will begin fleeing to Gaza for safety!

leepoint
leepoint like.author.displayName 1 Like

Don't hold your breath.