A better Egyptian constitution

With the violence that broke out in front of the presidential palace in Egypt yesterday, one can no longer describe the constitutional draft produced under the Mohamed Morsi government, as just "flawed." In process, the draft is abysmal. In context, it revises history. In content, it is silent, vague, and problematic. In consequence, it is bloody. It isn't just that Egypt can do better. Ratifying this constitution would reward, and deepen, polarization -- and the goals of the January 25 revolution would be that much further away from being achieved.

The most obvious problems with the constitutional draft are procedural. The process was supposed to deliver a representative constituent assembly, which would produce a consensus-based document that the overwhelming majority of Egyptians would sign up to, and feel invested in. The first assembly was dismissed in April, after the supreme administrative court pointed out members of parliament could not elect themselves onto the assembly, and that the assembly involved too few women, young people, and representatives of minority groups. 

Most hoped that the next assembly would be more representative. It was, initially, but it was still overwhelming Islamist, and still included members of parliament. With the dismissal of parliament shortly thereafter, President Morsi had the legislative ability to reappoint a new assembly altogether, which he could have done in conjunction with other political forces, ensuring a popular consensus. Instead, the president protected the Islamist-dominated assembly for months despite widespread criticism and the resignations of the majority of non-Islamist political forces.

In his recent decree allocating himself freedom from judicial oversight, Morsi declared the assembly had three more months to complete its work. A few days later, he ignored his own decree. Instead of three months, the assembly was directed to complete its work in a matter of hours, in a process even more dominated by Islamists after the overwhelming majority of non-Islamists withdrew in protest. If the first assembly was unrepresentative, this one was even more so.

That procedural disaster extends to the referendum, which is scheduled at the end of next week. It's likely a majority of Egyptians will not even understand the draft, considering the time frame: and rather than being a force for consensus building, the draft, by virtue of the process that produced it, is a force for deepening polarization in Egypt.

Beyond the process, the context of the draft makes things more bizarre. It is clear in the past two years the transition has been, to put it politely, less than smooth owing to the decisions of the Egyptian military leadership. Yet, the draft implies that they protected and upheld the revolution. That will be news to the protest movement that directed its ire against the military for the past two years. Then again, the constitution also protects the right of the military to try civilians in military courts -- so perhaps there is more than enough strange news to go around.

The content of the constitution does not make for absolutely awful reading, it should be said. It is not totalitarian, although it provides an incredible amount of power to the executive, without according a sufficient check from the legislative. Nor does it create a conservative Islamist theocracy, even though it does vest the state with powers to enforce and preserve "morality."

But the people of Egypt did not engage in a popular revolution for a constitution that was not "awful." No constitution was ever going to be perfect: but this constitutional draft is mediocre at best. At worst, it is open to incredible abuse -- a problem in a society increasingly riven by mistrust and damaging splits. It privileges the state above and beyond civil society in so many ways, giving the state powers to intervene in areas where it should have no competency. Moreover, it provides the executive with such power that autocracy is incredibly tempting, if not mandatory. Considering that the revolution owes its very existence to civil society, and Egyptians revolted largely against the dictatorship of former President Hosni Mubarak, that is hardly an encouraging affirmation of the revolt. Protection and encouragement of civil society should have been at the core of this constitution -- it almost seems barely tolerated, instead.

And finally, in consequence: it is bloody. This draft, as far as the supporters of Morsi are concerned, must go through. It must be put to a referendum. Opposition to him, his decree, and his draft, is no longer simply a political disagreement that can be rationally disputed. Rather, it is a sign of a more existential battle against the Muslim Brotherhood (MB). It is that worldview that unfortunately led to some of Morsi's supporters descending upon a peaceful protest in front of the presidential palace yesterday, resulting in a predictable conflict that led to 6 people dying. Their blood stains this constitutional draft.

If the referendum does go through, it will not be one on the articles of the constitution, and it is not going to be treated as such in the aftermath. Rather, it will be a referendum on Morsi and his leadership thus far. If it passes, the MB will insist that it is a validation of Morsi's decree in November and the MB at large. If it fails, the opposition will insist it is a clear rejection of Morsi's track record. None of this is what Egyptians should be focusing on in their first free constitution.

If the draft is passed, one thing should be very clear: the dynamism of the revolution will be reduced, and schisms will deepen even further. The MB's insistence on trying to approve a new constitution in the middle of a political crisis will forever weaken the constitution's credibility, as well as the MB's moral standing. Revolutionary activism will not end -- but it will be dealt a blow. That cannot be good for Egypt, and perhaps is one thing that might give both the MB and its opposition pause for thought.

Morsi can still be a president for all Egyptians, in deeds as in words. It is still possible for him to make that historic choice. Those who supported him against Mubarak's last prime minister, Ahmed Shafiq, in the presidential elections, who now oppose him in front of the presidential palace and Tahrir Square, are not irreversibly lost. The MB that supports him can still support him if he decides to change course, and works with the opposition in a critical time for Egypt's transition. There are forces within the "deep state" that want to derail Egypt's nascent democratic transition -- and the MB, as well as the opposition, knows it. But the MB's best partners in tackling them are, in fact, the opposition -- which it needs to realize.

If Morsi makes the argument that in order to not only tackle Egypt's "deep state," but also to uphold Egypt's societal unity he needs to take drastic steps, he can still turn this crisis into an opportunity. A new decree that rescinds his supra-legal power, cancels the referendum, and builds a revolutionary legislative council made up of the key political forces of Egypt is still an option. It is no more extraordinary than the decree that he issued giving himself freedom from judicial oversight -- and would be far better received.

The opposition also has a choice. They need not accept the argument of the MB that the president should simply be trusted not to abuse his power: the MB would never advocate such an approach were it Shafiq, Hamdeen Sabahi, Aboul Futouh, or Amr Moussa in power. But it would not go amiss for the opposition to reaffirm that their goal is not to get Morsi out of his job: just for him to do his job. Moreover, they need to do theirs, which is to hold the government to account effectively and constructively. Regardless of how one feels about the opposition's patriotism, one cannot deny their lack of strategic thinking is tremendous. The opposition runs the risk of just running out of steam -- continuous protests without a strategic vision are unsustainable. They would not be failing only themselves: they would be failing Egypt at a critical time in its transition.

No legal historian can consider modern Arab law without the direct intervention of Egyptian jurists: Arab law almost owes its existence to them. Egypt could still produce a constitution worthy of that heritage, and earn the admiration of many in the region and worldwide. A revolt of 18 days, in comparison, is easy: that would be a lasting achievement.

Yet, if Egypt cannot avoid having a mediocre constitution, it can avoid having one that plunges Egypt exponentially deeper into rifts and polarization, causing Egyptians to retreat into their respective silos. But for that to happen, this constitutional process has to stop. Now.

Dr H.A. Hellyer, non-resident Fellow at the Brookings Institution and ISPU, previously held senior posts at Gallup and Warwick University. Follow him on Twitter @hahellyer http://www.hahellyer.com/

MAHMOUD kHALED/AFP/Getty Images

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