Egypt's constitution-drafting committee put the document to a vote today in a surprise move that the president's allies say hastens Egypt's democratic transition, but which opponents claim undermines its legitimacy.
The move by the constitution-writing committee shocked many Egyptians because President Mohamed Morsi issued a decree only last week that protected the committee from possible court-ordered dissolution and gave it two more months to finish the document.
His decree also made his own decisions immune from judicial review, removing most checks on his power. He and his allies have only doubled down on their stance as they confront strong opposition from the judiciary.
Dominated by allies of the president, the constituent assembly, which rushed to make last-minute amendments yesterday, is virtually guaranteed to have enough votes to pass the constitution today. But pushing through a controversial document drafted by a committee from which most non-Islamists resigned in protest over the past couple months will deepen the polarization that has crippled Egypt's politics and undermine the legitimacy of the new constitution.
"It is not unusual for constitutions to be written under contentious circumstances," says Nathan Brown, a political science professor at George Washington University and an expert on Egypt's judicial system. "But it is hard to think of one which has been so obviously shoved down the throats of all non-Islamist political forces, and over the metaphorical dead bodies of a large number of judicial organizations as well."
While imperfect or contested constitutions often become workable documents, "This is going to be seen by its opponents as born in such grievous sin that I cannot imagine any kind of legitimate political system arising out of it anytime soon," he says. "It may be a workable one … But it's one in which large portions of the political spectrum will feel politically excluded."
Delay for a stable democracy?
Hours after voting was scheduled to start, an Egyptian newspaper published what it claimed was a copy of the final draft to be voted on today, giving Egyptians the first chance to read what is likely to become their next constitution. The assembly finally began voting on the document in the afternoon, in a process that will take hours as the committee votes separately on each of the 234 articles.
Officials in the Muslim Brotherhood and its political wing the Freedom and Justice Party, which Morsi headed before he ran for president, indicated that they made the surprise move of rushing the constitution through because they feared a counterattack by Egypt's judiciary. Such a move would possibly delegitimize the constitution drafting process, seek to strip Morsi of some of his power, and delay Egypt's transition to a stable democracy with a constitution and elected parliament in place.
Egypt's Supreme Constitutional Court announced yesterday it would go ahead with a Dec. 2 hearing of a case that sought to disband the constituent assembly. This is the second iteration of the body; the first was dissolved by a court after secular and liberal members complained it was dominated by Islamists – one of the same complaints they have today. Egypt's top appeals court also joined lower courts in Egypt in a strike, giving a powerful boost to the judiciary's revolt against Morsi's decree sidestepping their authority.
Shadi Hamid, director of research at the Brookings Doha Center, says the FJP and Muslim Brotherhood leaders also believed that the a court was preparing to rule against another constitutional decree that President Morsi made in August that put legislative power, claimed by the military after the elected parliament was dissolved, in his own hands. An attempt to reverse that decree would bring the military back into a direct political role. Their decision indicates the president and his allies still fear the judiciary, despite Morsi's decree sidelining them.
"They really have this sense of urgency," Dr. Hamid said of the FJP and Muslim Brotherhood leaders. "That's why they're not wavering. Because they feel that even if the cost is high, it's worth it – this is the best of the set of non-ideal options. They feel that if the court gets its way, Egypt's transition will effectively be over. If they have to become authoritarian for a few months, that's needed to accomplish their ends."
A dictator, or a flawed constitution?
On the other hand, pushing through the constitution is also a way for Morsi and his allies to overcome popular protests against the president's power grab. Tens of thousands of Egyptians protested the president's decisions in Tahrir Square in the past week, and opposition groups have called for more protests tomorrow. But Morsi, who was elected by a razor-thin margin over a candidate considered a holdover from the Mubarak regime, and his allies believe the protesters represent a small fraction of Egyptians, and that the vast majority support him.
If the constitution passes in a national referendum, it backs up that position and weakens the opposition.
"They want a referendum as soon as possible because they feel that once they can claim a majority on the referendum, that will cool down a lot of the opposition and they can claim they have a popular mandate," says Hamid.
Most analysts say the constitutional referendum is likely to pass because Egyptians' fatigue with political wrangling and instability outweighs any opposition to the constitution, and because Morsi's opponents have little time to mobilize a vote against the measure.
FJP leaders have suggested the referendum might be held in two weeks, though it is unclear how they will manage the judicial supervision usually required by law with the judiciary opposed to the president and much of it on strike.
Morsi's supporters point out that a quick constitutional referendum means a quick end to the president's exceptional powers, since his constitutional decree will expire once a new constitution is in place and a new parliament elected. The president's opponents portray this as a catch-22: a choice between a dictator, or a flawed constitution.
'A real question of legitimacy'
Most secular and Christian members resigned from the constitutional committee over recent months. They said the Islamists who led the assembly ignored their suggestions and were writing a document that threatened minority and women's rights and opened the door for Islamists to impose their vision of Islamic law on the country.
Heba Morayef, Egypt director for Human Rights Watch, says that previous drafts of the constitution made public prompted "very serious rights concerns."
"This is a constitution that will undermine human rights to expression, to freedom of religion, that provides very weak protection for child rights, in many surreal ways that refused to criminalize human trafficking," she says.
Others have concerns about the balance of powers outlined in the previous drafts, which kept the majority of power within the presidency. After decades under authoritarian presidents, many wanted the new charter to shift more authority to the parliament.
But many of the complaints about the constitution relate more to the way it was drafted rather than the document itself.
"You can't ram a constitution down the throats of the opposition, because then there's a real question of legitimacy, and if you have a significant part of the population that doesn't feel that it has a stake in the new constitutional order, or that its views weren't taken into consideration, that can cast doubt on the foundations of the political system," says Hamid. "And then you have people who have an incentive to play spoiler."