The deeply emotional matter of Article 2, defining the relationship between Islam and Egyptian law, remains essentially unchanged from Egypt’s old constitution. The new charter says that the legal code stems from “the principles of Islamic law,” wording that is broad enough to allow for individual rights and freedoms. This is a disappointment to some liberals — who had hoped to leave the article out altogether — while also being less than what the ultraconservative Salafists who backed Morsi wanted. They had sought to codify strict moral codes and allow religious scholars to trump legal ones.
The charter contains 234 articles, which were being voted on one by one. If it passes, which appeared likely early Friday, the constitution would go to Morsi’s office. In theory, Morsi would then have 15 days to call for a public referendum on the document.
In reality, however, the messy process by which the vote came about — including walkouts by secular liberals and Christians in recent weeks, a judicial threat to dissolve the assembly altogether, and the decree Morsi issued last week giving himself near-absolute powers to push the constitution forward — has virtually guaranteed that the legitimacy of Egypt’s new charter will be questioned in the courts and in the chaotic streets of Cairo.
“This will be a constitution born in all kinds of controversy — political, legal and dueling confrontations on the streets,” said Nathan Brown, a Middle East scholar at George Washington University. “At this point, things seem to be escalating in all ways, and there are no real attempts to contain them. It raises concern about the stability of the political system.”
In a prerecorded interview that aired during voting Thursday night, Morsi — who compared the complexity of the world to a bowl of spaghetti in a recent interview with Time magazine — embraced the chaos. “The scene before me is very healthy and very positive,” he said.
Already this week, tens of thousands of protesters have hit the streets calling for Morsi’s ouster, fearful that he is on the path to become an Islamist version of Hosni Mubarak, Egypt’s longtime autocratic ruler, who was ousted nearly two years ago.
As the voting on the constitution continued Thursday night, there were protests against Morsi outside the presidential palace and a small protest supporting Morsi in Giza on the outskirts of Cairo. Larger demonstrations are expected Friday.
After calling off protests earlier this week, Morsi’s Islamist supporters in the Muslim Brotherhood and the Salafist Nour party have called for their own demonstrations Saturday.
Liberals, Islamists spar
Much like Egypt is at the moment, the new charter is a fairly vague jumble of old and new, the secular and the Islamist, a sometimes contradictory set of ideas that remain open to interpretation and seems to completely satisfy no one.
Compromises between the authoritarian Egypt of Mubarak, the revolutionary Egypt that ousted him and the newly elected Islamist government that replaced him are sprinkled throughout. Article 43, for instance, guarantees freedom of expression, while Article 44 forbids insulting any prophets. Article 50 preserves the right to assembly but requires “notification” of such gatherings. The constitution imposes presidential term limits, marking a clear shift away from the era of Mubarak, who ruled for 30 years. But other checks on presidential power remain ill-defined.
As the voting began Thursday, liberal activists began blogging and tweeting their objections and political Islamists their retorts, reflecting the deepening polarization of Egypt’s political classes.
“This constitution that is being written a few steps away from tear gas and bullets and under the protection of the interior ministry and the legitimacy of the Brotherhood and dictatorial immunity does not and will not represent me,” wrote Rasha Azb, a prominent activist.
Neder Bakar, a spokesman for the Nour party who is a member of the constitution-writing assembly, said the new constitution represents solid progress compared with the Mubarak days.
“This constitution has diminished the authorities of the president to a bare minimum,” he said. “The issues related to human rights in this constitution cannot be compared to previous constitutions.”
Morsi vs. the judiciary
Morsi has been locked in a power struggle with the country’s Mubarak-era judiciary since the moment he was elected this summer, when the country’s highest court dissolved the democratically elected, Islamist-dominated parliament that backed him. That same court was expected to dissolve the constitution-writing assembly Sunday, when it was to hear cases stemming from the walkout of its liberal, secular and Christian members, prompting a rush for the body to complete its work.
Morsi’s supporters have cast his decree, which places nearly all his actions beyond judicial review, as a short-term measure needed to protect Egypt’s democratic transition from the judiciary. In the interview that aired Thursday, Morsi reiterated his position that his decree was temporary and that he would relinquish his new powers once Egypt has a new constitution in place.
But getting to that point will involve the judiciary that Morsi is flouting. Once the assembly approves the new constitution, it is supposed to be put to a popular referendum, a process that is overseen by courts that are currently on strike.
“So,” said Brown, the GWU scholar, “will they be able to fulfill the legal requirements of the referendum?”
In the interview, Morsi appeared confident, pointing his finger and shouting, “If someone tries to prolong the transitional phase, I will not permit them to do that!”
And if Egyptians vote down the new constitution, he said, “we will start all over again.”
Hassieb is a special correspondent.