From the Editors
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With November nearly at an end, it seems like an eternity ago that Israel and Gaza were engaged in intense, if unequal fighting. Yet it was only two weeks ago that Egyptian President Mohamed Morsi spent intense hours on the telephone with US President Barak Obama to craft a truce. Not long after the two men hung up their phones, Egypt’s current crisis began and many Egyptians today are, for the first time in centuries, afraid of civil war. Street fighting has broken out in several provincial capitals and claimed several lives, and several local headquarters of the Muslim Brotherhood have been torched; so these fears are not unfounded.
The proximate cause is President Morsi’s decision to issue a second constitutional declaration of his own, removing all of his actions from judicial review and allowing him to take any decision he wishes to safeguard the revolution. There has been widespread criticism of successive drafts of the new constitution, as well as of a process from which the representatives of almost all political forces other than the Muslim Brotherhood and the Salafist trends have withdrawn. Morsi believes his declaration was necessary to protect the revolution; the political figures that have withdrawn believe it was a final attempt by Morsi and the Muslim Brotherhood to subvert, if not destroy the revolution. In addition to a debate about the merits of Morsi’s declaration, there is also a debate about the responsibility of various political and institutional actors in creating what is now not only a constitutional deadlock, but an increasingly deadly conflict as well. This debate inside Egypt has been echoed in the US, where several scholars have strenuously argued that Morsi’s actions are well-considered necessities to safeguard the revolution against a motley collection of unruly and isolated liberals and secularists allied with remnants of the old regime in an irrational hatred of the Muslim Brotherhood.
Of the complex story of the past two years, three points are worth keeping in mind. First, the Muslim Brotherhood has a large, disciplined membership, and a significant constituency, but it also evokes significant anger, fear, and opposition within wide sections of Egyptian society (Muslim as well as Christian). By some accounts, the group has eight hundred thousand active, dues-paying members, and can probably count on getting at least thirty-five percent of the votes in parliamentary elections. The Muslim Brotherhood was the largest and most-disciplined party in 2011; it was also the only one. After two years of revolution, that is no longer true. The Social Democrats, Al-Wafd, and even the Free Egyptians look more like real parties now than the debating clubs that they were in 2011. In 2011, lacking leaders of national stature, the revolutionaries made a virtue of necessity by opposing the idea of leadership. Today, there are leaders with proven national constituencies. Hamdeen Sabahi, Mohamed ElBaradei, and Amr Moussa all have significant flaws, but they have also shown themselves to be plausible spokesmen for popular discontent. More important for the future, a group of younger and far more organizationally savvy young political leaders and organizers are emerging. Third, despite pseudo-academic babble, the last two years have been truly revolutionary: with the occasional exception of the courts, there have been no functioning institutions to resolve fundamental issues of power and politics. The frequent repair to emergency proclamations in the form of constitutional declarations (four in two years) is indicative that the shaping of political institutions remains a matter of raw and direct political conflict.
The constitution should resolve this elemental conflict by providing appropriate channels for the routine resolution of struggles over pressing policy issues such as investment, unemployment, education, and public safety. With measured unemployment in the 15-29 year old age group at seventy-five percent, foreign currency reserves less than a quarter of what they were two years ago, and tourism at a standstill, this is a country that needs to be able to address pressing challenges rapidly and effectively.
The content of the constitutional draft has been subject to extensive criticism. It is clearly a document written by the Muslim Brotherhood, its supporters, and allies. This, they argue, is the outcome of democracy. They won the March 2011 referendum setting up the political process; they won the parliamentary elections of 2011-12; they won the presidency with Morsi’s victory in 2012. Consequently they have the right to shape the constitution.
They are certainly right as far as the argument from democracy goes. The problem, however, is that it does not go that far. Morsi’s constitutional declaration was designed primarily to prevent the courts, especially the Supreme Constitutional Court, from stepping into the constitutional process. The president and his supporters blame the court for dissolving the lower house of parliament, forcing a reorganization of the initial constitutional assembly, and threatening to dissolve the current one.
Seen as a dispute between legally constituted powers, Morsi and the Muslim Brotherhood have a plausible argument. The courts, and the rule of law more generally, often play an anti-democratic role. The problem is that what Morsi conceives as an institutional conflict can also be perceived as an assault on the fundamental right of Egyptians to seek redress in the courts for wrongs inflicted by the state. The courts, rather than parliament or the executive, have been the primary source for such redress over the past thirty years, and Egyptians have widely resorted to them.
If Morsi’s vision of Egypt’s future were sufficiently widely held, he could simply ignore the courts. He and his supporters have tried that approach by claiming that judges represent only a tiny, westernized minority of public opinion. Unfortunately for him, that has turned out to be insufficiently true. Views about the judiciary are complex. Some Egyptians would like to see the judiciary undergo significant reforms. Others, in the midst of a revolutionary upheaval, seem to want to keep the old court system intact, and they also seem to have accepted, at many junctures, the substance of court decisions. Whether these decisions would win referenda is less important than that they have commanded at least as much respect as those made by any competing institutions or political actors. And whether they deny it or not, the courts, with their own vision of the rule of law and a discursive tradition that extends beyond several successive constitutions, are a political force to be reckoned with today.
In a world in which things have changed frequently and rapidly, the courts at crucial points provided a way to revisit earlier electoral, administrative, or institutional decisions. Unpleasant as this is for executive and even legislative officials, it is a necessity in the extremely unstable and uncertain times through which the country is living. And, indeed, the courts have done this not because they have a larger plan, but primarily in the defense of their own institution and their small community of jurisprudential discourse.
Despite Morsi’s claim to have a program to make significant change within a hundred days of his inauguration, things have not improved. The most egregious example occurred in mid-November in the southern town of Asyut, where a train ran into an overloaded bus carrying sixty kindergarteners, killing dozens. Obviously, Morsi did not cause the wreck, but it underlined the depth of the severe problems with Egypt’s government (which runs the malfunctioning rail system, and pays the absent crossing guards) and infrastructure. In the past, such an accident in the countryside might have gone unreported, but no longer. Also in the past, the concurrent Israeli bombing of Gaza during which children died might have driven the Asyut tragedy out of the news, but again, that is no longer true.
Elected by an extremely slender majority, Morsi has made almost no effort to reach out beyond his supporters and visibly be the president of all Egyptians. His assertion that he is not prejudiced against any Egyptian citizen was a peculiar way to be reassuring. He promised to choose vice presidents (he can have more than one) from among Egypt’s women and Copts, but in the end chose one conservative Muslim judge (as well as choosing the judge’s brother to be Minister of Justice). He did choose a wide array of advisers, but it is well known that he has never actually sought their advice. He has been very visible at mosques around the country for communal prayers, but has never visited a church, and refused to attend any of the ceremonies for the recent installation of a new Coptic pope. Nor has he visited clubs, cafes, or other places where ordinary Egyptians congregate. In a recent meeting attempting to iron out his conflict with the courts, he insisted the judges come to the presidential palace, although the custom has been for the president to recognize the judiciary by holding meetings at their headquarters. His wife attended the funeral a few days ago of a young man from Damanhur associated with the Muslim Brotherhood who was killed in street fighting. Morsi, however, neither attended nor sent a representative to the funeral of the Asyut school children. Singly, none of these matter, but they add up to a presidency which is widely seen to be extremely narrowly based on the Muslim Brotherhood, the Salafists, and their electoral constituencies. In ordinary times, this might not matter so much, but in the midst of ongoing and revolutionary disorder, it portends a leader and a party with plans to conquer the political and social realm, rather than to negotiate with it. Morsi sees himself as a revolutionary leader, but if that means the re-imposition of an authoritarian regime, many Egyptians do not want it.
In many ways, the story of the last year has been a struggle over the courts. A proposal by a member of the now-dissolved lower house to install new personnel in the Supreme Court and limit judicial review of laws passed by super-majorities was an inauspicious beginning to the chamber’s work, and no doubt alarmed members of the court. Morsi’s most recent constitutional declaration limiting judicial review and allowing him nearly untrammeled authority to “defend the revolution” is equally alarming. The response has been a political strike by members of the judiciary who have also declared that they will not oversee the upcoming referendum on the constitution.
Why this may lead to civil conflict is, therefore, not so obscure. President Morsi has not only alienated many Egyptians while also reinforcing his base. He has also now arrayed the judiciary against him. So, too, had Mubarak, but he had the police on his side. The other aspect of Morsi’s constitutional declaration threatens the police with further trials (and re-trials) for offenses committed during the early phase of the revolution, and they are almost certainly not very happy about that. The armed guardians of the law are no longer as eager as in the past to establish order, and may not necessarily come to Morsi’s aid. The Armed Forces, which refused a request by the Supreme Guide of the Muslim Brotherhood to safeguard the national headquarters, have made it clear that they will stand aside unless civil disorder again threatens the institutional existence of the State. Consequently, the Muslim Brotherhood and the Salafists may, as seems to have occurred in provincial cities, rely on their own paramilitary forces to fend off threats to their physical safety or even to prevent crowds from gathering nearby. Escalating violence could result and some leaders of the Muslim Brotherhood have hinted that they are barely restraining restive younger members. The recent call by Al-Nour Party spokesperson, Nader Bakkar for a Saturday demonstration in support of Morsi in Tahrir, where protesters are staging a sit-in in opposition to the president’s decisions, is inflammatory. Yusuf al-Qaradawi, a noted scholar and religious leader associated with the Muslim Brothers, probably well reflected their beliefs when he said that the current demonstrations against Morsi in Egypt are illegitimate, and announced that the opposition would be unable to bring significant numbers to the capital, daring them to try. A year ago that might have been true. Tuesday night, it proved not to be.
Remnants of the old regime, including its security agents, a westernized minority, and outside agitators, have destabilized the attempts of President Morsi and his allies, who continue to argue legitimacy through electoral success, to write a constitution. In response to claims that Morsi is somehow like Abraham Lincoln, saving the union might be more plausible if his opponents were in the streets demanding the moral equivalent of slavery. They are not. The Morsi presidency has divided the country, but it has succeeded in uniting the opposition. A test of strength is probably inevitable, but it will not be pleasant, and it may prove to be cruel.
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