By: Esam Al-Amin. This article was first published on Counterpunch.
Ever since the fall of former dictator Hosni Mubarak on that fateful day in February 2011, Egyptian society and its political factions have been sharply divided. On one side is the Islamic parties led by the Muslim Brotherhood (MB) but also includes the more conservative Salafi groups as well as other smaller moderate ones such as Al-Wasat Party. On the other is a myriad of secular groups that includes many liberal, leftist, as well as youth revolutionary groups such as the April 6 movement.
There is no doubt that the unity displayed during the eighteen revolutionary days that ousted Mubarak had soon after dissipated when Egyptians went to the polls five weeks later and voted to hold parliamentary elections before writing a new constitution. The Islamic parties, which supported this referendum, won it with over seventy-seven percent of the electorate as Egyptians voted in unprecedented numbers.
The Islamic political parties reasoned that a new constitution must be written by an elected body that represents the will of the Egyptian people while the secular parties, realizing that they would be overwhelmingly outnumbered at the ballot box, argued that a new constitution must be written by representatives of all political stripes outside any claim of a popular mandate even if legitimized through elections.
Hence, throughout the tumultuous transitional period supervised by the Egyptian military that lasted over sixteen months, the gulf and mistrust between the two sides have continued to widen. Basically, there have been four main active blocs in the Egyptian political theatre, with each maneuvering to obtain or maintain an advantage over the others. They are namely: the Islamists, the secularists, the revolutionary youth, and the remnants of the old regime. Each group determined its objectives according to its general political overview or narrow interests, and tried to establish its own transient coalition with the others in order to accomplish its goals. The wild card during this political wrangling was the military, which had its own agenda and was able to play these various forces against each other.
But what were the objectives of all these players?
Feeling empowered by their vast support in the streets, the Islamists wanted to hold elections as soon as possible in order to set the agenda and dominate the discussion on the writing of the new constitution and the future direction of the country. They argued that the principles of democracy dictate no less than holding elections at all levels to embody the will of the people. Early on the Islamists established a tacit understanding with the military in order to establish a smooth transition through popular elections. In return, the military hoped to maintain stability and order while figuring out the new political landscape.
On the other hand, the secular factions, which include many traditional liberals, leftists, nationalists, and some revolutionary youth groups, as well as the Coptic Christian community, feared a possible crushing defeat at the polls since they were hopelessly divided and terribly disorganized. So their main tactic during that period was to frustrate the agenda of the Islamists while trying to impose certain constitutional principles without debate by having the military council issue several decrees and appointing several committees dominated by many of them but only to see them fail or wither away.
The main agenda of many revolutionary youth groups such as the April 6 movement, the Ultras (non-affiliated youth groups willing to confront authority), or the Egyptian Current, was to press for the revolutionary demands such as purging the Egyptian institutions from the elements of the old regime, especially in the security apparatus, the police, the media, the judiciary, as well as exposing and isolating the corrupt politicians. Throughout the transitional period they applied full pressure and maintained continuous presence in the streets in order to force the military council and its appointed government to hold trials against senior members of the Mubarak regime and those responsible for the almost 1000 people killed during the early days of the revolution. But in many instances the revolutionary youth in the streets felt betrayed by the Islamists as often times their demands and actions were met with either lip service or disdain.
Meanwhile, the remnants of the old regime, called the fulool (Arabic for remnants) stayed in the background waiting for the right moment to regroup and launch a counterrevolution. The fulool included not only many pro-Mubarak politicians from the old regime but also many corrupt businessmen and oligarchs. They knew that if a new order was allowed to be established they would lose their ill-gotten wealth and possibly face imprisonment as many prominent senior officials of the former regime had to contend with.
But the military, which control as much as thirty percent of Egypt’s economy and has been autonomous with little governmental oversight or accountability for decades, was determined to maintain this status-quo and as much of its privileges as possible. It also did not want any politicians or political groups to interfere in, let alone control, its decision-making process, especially in its internal financial conglomerates or national security affairs. So for the entire transitional period the military council pitted these groups against each other, with each group calculating and selfishly protecting its own short-term interests regardless of the overall consequences on the main objectives of the popular revolution.
With this as the backdrop the Egyptian people went to the polls seven times during this period: voting on the constitutional referendum in March 2011, four times to elect both chambers of parliament between November 2011 and January 2012, and two times to elect a president in May and June 2012.
More Egyptians went to the polls during this period than in any election in the past six decades. During the Mubarak regime the electorate had never exceeded 6 million, or less than 15 percent of eligible voters. But during the 16 months transitional period, over 62 percent of Egyptians went to the polls as 18 million Egyptians voted in the referendum, 30 million in the parliamentary elections, and 26 million in the presidential elections. Not surprisingly, in every one of these elections, the Islamist position or candidates won (77 percent in the referendum and 73 percent of parliament.)
In the presidential elections, despite the polarization that engulfed the country, the overt support of the military council, the Egyptian bureaucracy, the Supreme Constitutional Court (SCC), and the Elections Committee to the fulool candidate, as well as the massive propaganda machinery campaign against Dr. Muhammad Morsi; the Muslim Brotherhood candidate, still won though barely with 52 percent of the vote. It is important to note that both the Elections Commission and SCC were Mubarak’s appointees who also oversaw and overlooked many fraudulent elections during the Mubarak era, most notably the 2005 and 2010 rigged elections. Although it took over a week for the commission to announce the results, Morsi took office on June 30, 2012 in a polarized atmosphere. Despite the presence of the military council as the real power behind the thrown, people still had great expectations for the new president.
The mistrust widens
In March 2012, the Islamically dominated parliament appointed the Constitutional Constituent Assembly (CCA) - charged with writing the new constitution- in a heavy-handed way that intensified the mistrust between the two sides. But soon thereafter the Mubarak-era SCC issued a decree that disbanded the body, arguing that members of parliament could not serve on the CCA at the same time even though the popular referendum left it to the parliament to decide who might serve.
After months of intense debates and meetings, the political groups agreed in May to set the criteria for choosing the members of the reconstituted CCA. Even though they were outnumbered three to one in parliament, the secular groups insisted that the composition of the new constitution writing committee be one to one between the Islamists and secularists. Eventually the Islamists agreed to this stipulation in order to defuse the crisis.
Soon after both chambers of parliament appointed a 100-member committee to write the constitution (with an additional 50 alternates), as half were selected by the Islamic parties and the other half selected by the so-called civic forces comprising all secular and civil society groups. According to the March 2011 referendum, the CCA had six months to write the new constitution. It was further agreed between the groups that any article in the constitution must have the support of at least 67 out of the 100 members. But failing to achieve this number the CCA would have to suspend the vote for two days, before revoting on the disputed article. In the second vote it must receive at least 57 votes before it is approved.
However, in early June the SCC disbanded the lower house of parliament reasoning that the election laws were favoring the parties’ lists over independents even though they were the same laws proposed by the secular parties last year and approved by the military council and their senior legal advisors including judges on the SCC. A few days later the military council issued a constitutional decree that stripped the future president of most of his authorities and delegated to itself massive legislative and sovereign powers, including making all senior appointments. Despite this clear power grab by the military shortly before handing power to a civilian president, the SCC refused to criticize, let alone intervene or overturn the military council’s decree.
Within two weeks of taking office the new president issued a presidential decree that restored the dissolved elected parliament in the hope to activate the legislative branch elected by the people. But his decision was immediately overturned by the SCC, which rested all legislative power in the hands of the nineteen senior military officers comprising the military council that had been ruling Egypt since the fall of Mubarak. Reluctantly Morsi backed down and vowed to respect the SCC judicial ruling. During this incident he appeared to his detractors as indecisive, inexperienced, and weak.
In early August several soldiers in the Sinai at the border with Gaza lost their lives in a vicious attack by an undetermined militant group. Soon after, President Morsi took advantage of the opening and dismissed several senior security officers. Within days he followed this bold decision by cancelling the military council’s decree that stripped him of his powers and retired most senior military officers in the ruling council while also appointing new officers. Because the overwhelming majority of Egyptians supported these momentous decrees, many Egyptian political parties supported these swift decisions even though many Mubarak-appointed judges and other remnants of the old regime noisily objected, but they were ignored. As a consequence, Morsi was promptly reassessed and many political functionaries, friends and foes alike, considered him a skilled politician who was able to outsmart and sideline the military almost cost-free.
But in the few months that he has been in office, the new president would often times show frustrations (as he acknowledged in one of his frequent speeches) because of the massively corrupt Egyptian bureaucracy, which is replete with remnants of the Mubarak era especially in the pro-fulool security apparatus and intelligence services, with midlevel management in many governmental agencies and local councils, as well as within the corrupt business class (all these entities are collectively referred to in the Egyptian media as the proponents of the deep state). These powerful forces have not only been hostile to the objectives of the revolution but they have also supported all attempts to frustrate them and present Egypt as a failed state under the new regime. So many of the campaign pledges that Morsi promised his people in his first 100 days of governing were not fulfilled. Undoubtedly, these failings added to the exasperation of average Egyptians as they struggled in their daily lives with the poor economic conditions and deterioration of government services throughout the country.
In October, many Mubarak underlings were again found not guilty of killing or attacking any of the protesters during the early days of the revolution. Immediately the families of the killed and wounded were outraged and took to the streets. With the exception of Mubarak, dozens of trials ended up in no convictions to any security officer or political official. It became clear that the real problem was with the Prosecutor General, a corrupt Mubarak appointee, who critics charged that he either hid the damning evidence or did not present it in these show political trials. When Morsi tried to dismiss him soon after, many senior pro-Mubarak judges slammed the president hard and rose to the defense of the Prosecutor General charging that the president could not legally dismiss him. Within two days Morsi backed down and the Prosecutor was reinstated.
Meanwhile, the gulf between the Islamic and secular forces in the constitutional writing assembly widened. The secularists accused the Islamists of trying to impose a religious state while the Islamists denied the charges and insisted that the new constitution embraced a modern and democratic state with expanded personal freedoms and protections of women and minorities. Any objective or even perfunctory reading of the draft of the new constitution would easily conclude that it is far from any notion of a religious state, and that the basic principles of a modern, democratic, and civil state were enshrined in it. In its comprehensive draft of 234 articles, the reference to Islamic law is only mentioned in articles 2 and 219. All sides (including all Christian Churches) have accepted to maintain verbatim the second article, which has existed since the 1971 Sadat-era constitution. Article 2 states that the principles of Islamic law are the main source of legislation.
The major difference between the two factions though was in the interpretation of this clause. The conservative Salafis wanted a more precise and narrow definition while the secularists wanted no such explanation. Eventually the compromise brokered by the Grand Imam of Al-Azhar, the largest Islamic Institution in the Sunni world, was to have a one line expansive explanation about the meaning of the principles of Islamic law (probably with little practical consequence) added at the end of the constitution as Article 219.
December 12 was the deadline for ending the process of writing the draft of the new constitution. As this date approached many new demands by the secular groups resurfaced especially on this new definition of the principles of Islamic law as well as other demands that addressed the different roles of state institutions such as the judiciary and the military. Morsi and the Imam of Al-Azhar tried to mediate but to no avail. Even though the differences did not seem to be unbridgeable, yet dozens of secular members of the CCA withdrew citing irreconcilable differences. However, striking claims of imposing a religious state were made although no details were offered. The list of the members that withdrew from the assembly includes former presidential candidate Amr Mousa, and heads of major political parties and public figures including the liberal Al-Wafd led by Al-Sayyed Badawi and Al-Ghad led by Ayman Nour. Soon after representatives of the Christian Churches as well as some youth groups including the April 6 movement followed suit and withdrew.
The tactic was unmistakable. If the CCA could not pass a draft by December 12 it would have to be disbanded and the president would then have to appoint a new 100 members to start the process anew. The secular forces hoped that they could apply tremendous pressure on Morsi to either increase their representation in the new formation or totally refuse to participate, blame the president and his political faction, and keep the country in total chaos.
Furthermore, the secular groups thought that they had another ace at their disposal. The SCC was going to decide by December 2 the constitutionality of the composition of the current CCA and the second chamber of parliament. Many sources close to Morsi leaked that the president was told by an insider to the SCC deliberations that the constitutional court was going to dissolve both institutions by early December, a severe blow to the MB and their Islamic allies, and a huge advantage to the secular factions in their efforts to reconstitute a new CCA.
A new sweeping presidential constitutional decree
Morsi reasoned that he was facing a real constitutional crisis. The new institutions of the state were being dismantled one after another through the politicized rulings of the Mubarak-era court. First, the lower chamber in parliament and the first CCA, then the upper chamber and the second constitutional writing committee were soon to follow suit. When Morsi tried to restore parliament early in his tenure in order to give up legislative powers he was overturned. Now the court was on the verge of dissolving the only two other legitimate institutions remaining in the country. If that were to happen he would be the last legitimate institution left and might soon be overwhelmed. He would not only be in charge of executive and legislative branches but also in charge of appointing a new 100-member committee to write the constitution, which could easily isolate him, further polarize the country, and create more instability.
On November 22 Morsi preempted the SCC decision by issuing his own constitutional decree. It included six articles. In two clauses the president changed the tenure of the Prosecutor General from life appointment to a four-year term effective immediately. He then appointed a new Prosecutor who is known to have been very critical of the Mubarak regime. In another article, he cancelled all the not-guilty verdicts against the Mubarak officials in their trials of killing and wounding the protesters and ordered new trials. A fact-finding committee was appointed and empowered to gather evidence against them. In all likelihood, had the president only issued these two articles most political groups (with the exception of the fulools) would have welcomed them. But he went further.
Fearing the approach of the December 2 court ruling, he issued an article that barred any judicial review of the second chamber of parliament by the SCC. While Morsi argued that he was trying to maintain stability and keep legislative authority in the hands of an elected body, his critics charged that he was simply aiming for political advantage in order to protect his party and their allies in this body as the MB had acquired almost 60 percent of the seats while the conservative Salafis garnered 25 percent in the elections last January. This was probably unnecessary since parliamentary elections were anyway scheduled for the lower chamber within two months after the new constitution goes into effect, most likely by next spring.
Furthermore, fearing the December 12 deadline on the CCA Morsi extended its mandate for two months in order to force the secular forces to go back and negotiate with the Islamists on the disputed articles. He then banned any judicial review by the SCC on the constitutionality of the composition of the CCA. Fearing that the SCC would overturn this constitutional decree, he simply overreached by also banning any judicial review not only to this decree but also to all his decisions until a constitution is passed and a parliament is elected. He then empowered himself to do what is necessary if he felt the state was threatened. It is not clear what such article entails in practice since he ruled out declaring a state of emergency.
Many constitutional experts argued that this overreach was also unnecessary since by definition a constitutional decree is unreviewable. When the Supreme Judiciary Council (though different from the SCC, it comprises the most senior judges that oversee all lower courts,) met with Morsi soon after, he explained that his decree will only apply to the sovereign decisions (such as not dissolving the CCA) but that any administrative decision is not protected and will be subject to the review by the courts.
But this interpretation was not acceptable to the secular forces. It was a golden opportunity for them to bring all groups, including the pro-Mubarak fulool. All were only united together in their hostility to the Islamists, in order to weaken and defeat their political opponents. Soon most liberal, leftist, nationalist, and secular political groups declared that a new revolution was on the horizon and called for major protests in Tahrir Square. Hundreds of thousands took to the streets throughout the week and demanded the fall of the “Brotherhood Dictatorship” recalling the early chants of the January 25 revolution.
Soon a new coalition called the National Salvation Front (NSF) was established that included most of the major secular figures including former presidential candidates Amr Mousa, Nasserite Hamdein Sabahi, and the fulool candidate Ahmad Shafiq (who has fled to the UAE since his defeat fearing arrest for pending financial corruption charges). These candidates came as fifth, third and second, respectively in the first round of the presidential elections. The NSF also includes most other secular parties including Al-Dustoor Party led by Dr. Mohammad ElBaradei, the former head of the IAEA, the traditional Wafd Party, as well as other youth and Coptic groups.
The NSF and their allies use hyperbola language as they charged Morsi with grabbing sweeping powers that were worse than those taken on by Mubarak or the military council. In an interview with a German magazine, ElBaradei even asked the military to take over and intervene if Morsi does not back down, and publicly called for foreign powers to threaten Morsi with economic sanctions unless he cancels his decree.
Dr. Abdelmoneim Abol Fotouh, the liberal and Islamist presidential candidate that came fourth in the elections was more restrained in his criticism. He supported parts of the presidential decree that ousted the General Prosecutor and called for new trials for members of the old regime. He also supported the time extension of the CCA. But he rejected the other provisions of protecting all presidential decisions from judicial review reasoning that they were unnecessary and provocative.
Since the MB came to power through the parliamentary elections and the presidency, many regional and international powers especially those who were very close to Mubarak such as Saudi Arabia, the United Arab Emirates, and Israel, became very nervous. Other international powers including the US and many European countries are apprehensive about the showdown in Egypt and wait for the dust to settle. But since last spring the two behind-the-scene hostile Arab Gulf countries have invested heavily in defeating the MB candidate, first by financing the candidacy of Shafiq to the tune of $200 million, and more recently by funding the activities of the secular opposition. According to sources close to Morsi and the MB, Saudi Arabia and the UAE have provided over $100 million in the past two months to his secular rivals in order to destabilize Egypt and build up the opposition to Morsi’s rule. These efforts according to these sources are directly overseen by Prince Bandar Bin Sultan, the head of Saudi intelligence, and Mohammad Ben Zayed, the Crown Prince of Abu Dhabi in the UAE, both considered sworn enemies of the MB.
Feeling empowered by the overreach of Morsi and the support of many oligarchical and fulool-affiliated media outlets in Egypt and the region, the secular factions have raised the stakes by demanding that Morsi not only cancel his decree but also dissolve the CCA before they would engage in any dialogue as he requested. Meanwhile, many judges announced that they would suspend their courts until the president backs down. To maintain the pressure, the secular parties and their supporters occupied Tahrir Square and vowed to stay there until their demands are met. The NSF announced that if Morsi does not soon accede to their ultimatums they would call for general strikes across Egypt.
Meanwhile, the MB and their allies have called for demonstrations to support Morsi. Within a week of Morsi’s declaration many buildings belonging to the MB and their affiliated political party were torched. One of their youth members was even killed while hundreds were injured in clashes across Egypt. Fearing the escalation of violence, the MB called off a major demonstration in the middle of the week. But two days later it announced that it will hold massive demonstrations on Saturday December 1 across Egypt and at Cairo University to avoid any clashes with the anti-Morsi demonstrators in Tahrir Square.
But what could be the likely scenarios in this showdown?
The strategy of the secular forces and their fulool allies is very simple: continue the pressure through protests and media campaigns in order to maintain public and political pressure. They also plan to escalate the confrontations by calling for general strikes including civil disobedience and asking government employees to stop working in order to bring the country to a halt. Their objective is not only for Morsi to cancel his decree but also to humiliate him and dissolve the CCA. Once these objectives are achieved they hope to be in a position to influence the new constitution and be on an equal footing with the Islamic groups in the next elections. They also hope to call for new presidential elections as well once the new constitution is drafted.
In its typical snobbish and dismissive fashion, the MB believes it holds the upper hand in its confrontation with the secular forces. The Islamic parties intend to display an impressive show of popular support in their upcoming demonstration in order to dwarf the numbers of the secular forces. They vow to mobilize several million people on Saturday in an enormous show of popular support. But it is doubtful that the opposing secular factions would be cowed as a result though their noise could be toned down a notch.
Yet Morsi has so far steadfastly and stubbornly refused to back down. He sees this confrontation as the defining moment of making or breaking his presidency. But unsurprisingly, the expanding mobilization effort by the opposition has backfired as the CCA has not been slowed by the withdrawals but has in fact sped up its work in finishing the drafting of the constitution. Although the president extended its mandate for an extra two more months in order to reach consensus, the CCA met on Thursday, November 29, in a marathon session. Twenty-six of its members who belonged to the opposition did not show up. They were swiftly replaced by eleven new alternate members for a final tally of eighty-five members. The CCA then passed the 234 articles of the new constitution. Most provisions passed by 80 or more votes. The chairman of the CCA, former head of the Supreme Judicial Council Hussam Al-Ghariani, vowed to submit the new constitution to Morsi within two days, almost ten weeks ahead of its new deadline.
Once it is received, Morsi will call for a popular referendum to vote on the new constitution within few weeks. Since the last article in the constitution calls for all decrees issued during the transitional period (five by the military council and two by Morsi) to be null and void, it is likely that Morsi would argue to the Egyptian public to vote for the constitution in order to also end the constitutional crisis. If this happens it would vindicate Morsi’s decision and demonstrate for the eighth time in two years that the Islamists were able to defeat the secularists at the polls. The overreaction to the presidential decree by the secular factions may have in fact accelerated the passing of the constitution that the secular groups hated so much. Furthermore, the new constitution calls for the president to serve his full four-year term (which the secularists sternly oppose) as well as for new parliamentary elections to take place within sixty days.
But whether the judiciary, which is almost on strike, would agree to oversee the referendum vote on the new constitution before Morsi cancels his decree is an open question. Another wild card is whether the overly political Supreme Constitutional Court would keep its silence during this time or issue another ruling that challenges Morsi’s decree or even questions his legitimacy, which will further muddy the waters.
Another wild card is the possible eruption of violence. If many Egyptians were to lose their lives in the ensuing demonstrations or in clashes between the rival parties or with the police, no one could predict how the Egyptian public would react as tensions between the sides are at fever pitch. Yet many Egyptians hope that cooler heads will prevail and that the most difficult test for Egyptian political groups since the fall of Mubarak will prove that Egypt’s democracy has matured, is resilient, and would indeed endure.