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?

  • Share
  • Read Later
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