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Morsi’s Constitutional Declaration

The most powerful postrevolutionary political actors in Egypt accepted a pragmatic option: they rejected radicalism and endorsed procedural democracy. In November 2012, when Morsi moved to insulate his decisions and the content of the 2012 constitution from judicial review, he was following the pragmatic course. Proponents of a liberal constitution objected, but their aims were not achievable without further political strife.

Most commentary points to Morsi’s November 2012 declaration as the final blow to the Muslim Brotherhood’s relationship with the liberal and radical revolutionaries, effectively setting in motion the events that led to the July 2013 coup. Morsi was hardly the first Egyptian politician to issue such a decree. The military had used constitutional declarations regularly throughout the transition process in order to ensure that a formal legal order would remain in place. Morsi’s goal was not outlandish either. He intended to prevent the judiciary from interfering with the constitutional drafting process so that a text could be completed in accordance with the provisions of the transitional road map, which had been approved by the March 2011 referendum. The radicals, however, interpreted Morsi’s decree as an intolerable assault on democracy, which confirmed their suspicions that Morsi and the Muslim Brotherhood were attempting to create a new kind of authoritarian state.10

Yet, the real issue was the makeup of the constituent assembly and the substance of the constitution it would draft. The parties eventually arrived at a deal, including the semi-presidential structure of the state (with executive power shared by a prime minister and a popularly elected president), but the role of religion remained a point of contention. Because parliament had selected the members of the constituent assembly, and because Islamists had won the majority of seats in parliament, Islamists dominated the constituent assembly. Liberals argued, not unreasonably, that those parliamentary elections exaggerated Islamists’ longterm political strength. Liberals also thought that the draft sacrificed or limited too many personal rights and freedoms in the name of religion, morality, and family values. They argued that the constitution would not be legitimate unless it was a consensual document capable of gaining acceptance by all significant social groups in Egypt.11

The individual-rights provisions of the constitution were clearly deficient from the perspective of international human rights law. In particular, the attempt to limit personal rights in the name of respect for traditional religious values does not comport with wider commitments to liberty. Liberal dissidents, however, never faced up to the reality that Egypt is divided on these personal rights. Should the state underwrite freedom of expression even if that enables blasphemy and apostasy? Should gender equality override religious rules, Christian or Muslim, particularly in the context of family law? Given that so many Egyptians disagree with the liberal position on these matters, it is difficult to understand what the demand for a consensual constitution recognizing personal rights could have meant in practical terms. The argument that the constituent assembly unreasonably exaggerated the strength of Islamist parties was plausible, but even granting this point, any democratic process would have placed a significant block of Islamists in the constituent assembly. As a result, there was no democratic path for liberals to establish a constitution that secured the personal rights and freedoms they sought.

By the time Morsi issued his November 2012 declaration, constitutional deliberations had effectively ground to a halt. From Morsi’s perspective, the declaration was the only means available to prevent the Supreme Constitutional Court from dissolving the constituent assembly. He had reasonable grounds to worry that the court was prepared to intervene. A case demanding dissolution was pending, and the court had already issued two rulings that interfered in the democratic transition: the first disbanding Egypt’s first freely elected parliament since 1952, the second overturning a law that attempted to bar old-regime elements, such as Shafiq, from running for the presidency. The dissidents’ boycott of the constituent assembly’s deliberations was a not-so-subtle sign to the court that, as far as they were concerned, its intervention would be welcome. In light of the court’s opposition and the fast-approaching deadline for completion of the draft constitution, Morsi felt he had no choice but to cut the court out.

There is little doubt that Morsi, as the democratically elected president, was the more legitimate arbiter of this dispute. The court is not democratically accountable, and the draft constitution could not come into effect unless it won approval in a popular referendum. While one might disagree with Morsi’s methods, it is reasonable to conclude that he acted in accordance with his responsibilities as the only democratically accountable official in the country. To describe his actions as a “naked power grab,” as ElBaradei suggested at the time,12 requires a presumption of bad faith inconsistent with democratic commitments. The radicals’ violent opposition to the November declaration would only have been justified if the constitution Morsi acted to protect failed to promote a pluralistic and inclusive political system. This was not the case: the 2012 constitution provided a more open political system than had prevailed prior to the revolution. It increased formal pol itical rights, reduced the power of the president, and increased the power of the prime minister and parliament.13

These were meaningful changes. For the first time, anyone could form a political party or publish in print without the prospect of government censorship. By contrast, during the Mubarak era, the formation of political parties required the state’s approval, thereby ensuring that no party capable of challenging the ruling National Democratic Party could develop. Under the new constitution, the president would also be limited to serving two terms, would face stricter rules on declaring states of emergency, and would no longer be able to dismiss the prime minister. Parliament was newly empowered to withdraw confidence from the government, and the president would be required to select the prime minister from the largest party in parliament.

The new constitution also boosted the capacity of the political branches by leaving open the content of many rights. Limitations on personal rights could only become operational upon the passage of positive law. The same was true of the provision contemplating military trials for civilians: Egypt’s future governments had the power to reduce the jurisdiction of military courts or to eliminate it through legislation. And though the constitution did not recognize a universal right to religious exercise—protection is limited to followers of the three Abraha- mic religions—it did not prevent the state from doing so in the future by statute.

This structure reduced the influence of the courts—in particular the Supreme Constitutional Court—by vesting the power to define rights in the political branches. This was a reasonable constitutional strategy in a society characterized by sharp division on fundamental personal rights. Indeed, from a Rawlsian perspective, we would expect such a society to adopt a constitution that guarantees only those political rights necessary for democratic participation in lawmaking. The 2012 constitution appeared to accomplish that, leaving the more contentious issues of individual rights to future deliberation. Unlike constitutions of nearby states, such as Morocco, the 2012 constitution did not entrench any provisions, including those on the role of Islam, as supra-constitutional norms impervious to amendment.14 Nor did it place any substantive, ideological limitations on the formation of secular political parties, provided that they were not organized on a discriminatory basis. It did not impose religious piety or a theological test as condition for public office. This ensured that the constitution would not privilege the Muslim Brotherhood, other Islamist parties, or even the role of Islam itself above other provisions of the constitution.

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