BY Marina Ottaway.COUNCIL ON FOREIGN RELATIONS.December 10, 2012
From the moment when Hosni Mubarak fell from power in February 2011, few issues have proved more divisive in Egyptian politics than the writing of a new constitution. Now, even though the formal process is theoretically coming to an end, the battle over the constitution is drawing the country dangerously close to an all-out civil war. The constituent assembly, Egypt’s constitutional committee, has approved a draft of the document, which will be submitted to a popular referendum, and probably approved, on December 15. Secular forces, however, oppose the constitution — its passage would mark a return to politics as usual in which Islamist parties have the upper hand, liberals remain on the fringes, and authoritarianism could reemerge, this time under the auspices of the Muslim Brotherhood.
To prevent the approval of the constitution, secularists have taken to the streets in increasingly large demonstrations, denouncing the constitution and President Mohamed Morsi as illegitimate and threatening massive civil disobedience. If Islamist parties mobilized their followers in response, something they have so far refrained from doing on a large scale, violence would be inevitable. A major flare-up could split the security forces and confront the military with a dilemma: either seize power again, as it did after the overthrow of Mubarak, or sit on the sidelines as the country descends into chaos. Neither option is palatable for the generals, since picking a side and intervening in political squabbles could cause a deep rift within the military itself.
Secularists allege that the Islamists who dominated the constituent assembly pushed through a constitution that does not respect liberal values. Their fears were only further stoked by Morsi’s decree that put his edicts above the reach of the courts. In their thinking, only popular protests could save the country from a return to Mubarakism. The Islamists, meanwhile, see themselves as the guardians of the democratic transition. From their point of view, the secularists are mobilizing the institutions of the Mubarak state, particularly the courts, in an attempt to undo the results of democratic elections that the Islamists won. According to this narrative, secularists used politicized courts to engineer the dissolution of the parliament and the first constituent assembly. Morsi, then, was quite justified in trying to protect the second constituent assembly by placing it out of reach of the judiciary.
The fraught debate over the constitution, however, is not the real source of today’s fighting. It is certainly not a perfect document, but it is nowhere near as flawed as the secular opposition claims. Indeed, much of the criticism is based on accusations of omissions, such as the fact that although the constitution explicitly states that all citizens have equal rights, it does not specifically mention equal rights for women. As an indignant young Egyptian told me in a moment of candor, “I read the constitution, it is a good document, and now I am mad because I wanted to find that it was very bad.”
The real root of the tension in Egypt is the lopsided distribution of power among the country’s political forces. Since 2011, Islamists have proved to be better organized and to enjoy more popular support than the secular opposition. Secularists are divided among themselves and poorly organized on the ground, and they have not developed a message with widespread popular appeal. In fact, they sometimes appear dismissive of lower-class Egyptians. Under these circumstances, Islamist forces want to accelerate the return to formal democratic politics, because they can win. Secular forces cannot afford to play that game. Going forward, the question is not about who is more committed to a democratic outcome in Egypt but about who can gain power in the short run, and by what means. Given their differing levels of popular support, Islamists will continue to preach democracy and secular forces will seek to postpone democratic processes as long as possible.
This paradox defines the present crisis. Islamists argue that the fastest and easiest way to return to a normal political process and rein in the president’s currently limitless power is to hold the referendum and approve the constitution. If that happened, legislative power would be restored to the Shura Council, the elected parliamentary chamber that escaped dissolution by the courts, and the full parliament would be formed following elections in early 2013. At the same time, the president’s executive power, now unregulated, would be brought under the rules of the constitution, and the courts would be restored to their normal authority.
Even though these changes would limit Morsi’s power, they would still leave Egypt in the hands of a Muslim Brotherhood president and a parliament in which Islamists are likely to control the majority of seats. As a result, secular forces want to reject the constitutional draft as an illegitimate document produced by a flawed process, dissolve the constituent assembly that approved it, form a new assembly, work on a new draft, dismiss Morsi as an illegitimate president, and somehow restore the revolutionary legitimacy of the 2011 uprising. They believe that the revolution was fought and won by liberals, forgetting that in reality the uprising put power in the hands of the military for eighteen months.
Neither side in the dispute is acting democratically. Secularists have politicized the courts and used them to try to undo election results and stop the ratification of the constitution. Secular leaders have been slow in condemning the violence perpetrated by their followers in the name of revolutionary legitimacy, including the torching of offices of the Islamist Freedom and Justice Party. Morsi has overreached by issuing a decree that that not only protects the constituent assembly but puts all his decisions above the control of the courts. Even some members of his team have taken a stand against the degree, and some of its parts have now been revoked.
For the moment, there seems to be little room for a compromise between Islamists and secularists. Even a revision of the constitutional draft that satisfied some of the secularists’ concerns would still usher in a system in which Islamists reigned supreme. This would be unacceptable to secular forces, and so the battle has moved to the streets.
Could this fighting have been avoided with a different constitution-writing process? Probably not. To be sure, it is easy to find fault with the Egyptian path. The election of a parliament that was expected to serve a full term, rather than of a temporary constituent assembly meant to pave the way to a new constitution, was a grave error. That mistake was compounded by the election of a president whose powers would also be redefined by the new constitution. The insistence by secular forces that election results should not influence the composition of the body entrusted to write the constitution was completely unrealistic, as was the Islamists’ attempt to limit participation in the constitution-making process to a narrow body. Judicial intervention made the problem worse, as did attempts by the military to introduce new rules on the eve of presidential elections. Still, this flawed procedure alone does not explain the discontent of secular Egyptians or the tense political theater of the last several weeks. What brought Egypt to the present impasse is not a flawed constitution but a raw battle for power between political forces that are not yet reconcilable.