There is only one intact Egyptian institution capable of stopping a constitutional crisis that threatens to drive the nation into legal limbo and force its citizens to vote on a rushed constitution, and so far, the Egyptian military is showing no signs of getting involved.
Instead, Egyptian President Mohammed Morsi and the country’s judiciary are locked in a game of chicken: Either Morsi will back down from a controversial decree that exempted his decisions from judicial review, or the courts will let the decree, which nullifies their power, stand until the nation ratifies a hastily approved permanent constitution.
“The definition of constitutional crisis is that it is unclear who is in charge. That’s an invitation to the people with the guns,” said Noah Feldman, a law professor at Harvard University.
Egypt’s military was once considered the bulwark of state legitimacy and the face of Egyptian nationalism. But so far it’s steered clear of the biggest political crisis of Morsi’s four-month tenure, even as it’s considered the only organization capable of arbitrating the dispute. It remains unclear whether that means it has sided with the president, is waiting to see what happens, or has rejected intervening in a way that would amount to a coup d’etat against the nation’s first democratically elected president.
Egypt’s military has long been the key participant in major events here, from the nation’s independence in 1952 to its decision in 2011 not to crack down on demonstrators demanding the resignation of President Hosni Mubarak, something the military itself forced after 18 days of turmoil. Its actions, or lack thereof, will also likely shape the outcome of this latest crisis, analysts say.
“My guess is that if Morsi gets the constitution through the assembly, he is gambling that he could then say to the constitutional court, ‘I dare you to dissolve the assembly once it’s finished its work, and if you do, I might just put the constitution up for a vote anyway and render you completely irrelevant,’” Feldman said. “Part of a gamble like this is that the military would not intervene on behalf of the constitutional court. If it did that, you have a coup d’etat, with the court leading it.”
The weeklong battle, which began when Morsi decreed that the judiciary could no longer review decisions he’d made regarding the writing of the country’s constitution, has polarized the nation. Morsi said he gave himself the unprecedented power in the face of a court dominated by Mubarak appointees. But opponents argued that he essentially had declared himself a dictator who can ignore the concerns of the large minority of Egyptians who fear the Islamist domination of the constituent assembly drafting the constitution.
Hundreds of thousands have turned out for anti-Morsi demonstrations since the decree, but Morsi still enjoys the support of his base. Barring military intervention, it’s difficult to see how he won’t prevail, even as thousands of his opponents remain camped out in Tahrir Square, the epicenter of Egypt’s political ferment.
On Thursday, the constitutional assembly spent the day hastily working through the document’s 234 articles, hoping to have approved each before the nation’s constitutional court is scheduled to rule on Sunday. Once approved, the document is to be submitted to a referendum allowing Egyptian voters to approve or reject it.
In an hour-long pre-recorded interview with state television that aired Thursday, Morsi rejected suggestions that the nation was devolving toward violence. He said the measures he’d announced last week were “temporary” and denied that he had become a dictator.
“No elected president like myself can take a decision to oppress," he said.
Rather, he said, it was the judiciary that was improperly injecting itself into the writing of the constitution.
“We’re not used to democracy,” Morsi said.
At the root of the dispute is the possibility the constitutional court will declare that the constitutional assembly is illegal because it was appointed by a Parliament that the court ordered dissolved earlier this year.
Morsi’s opponents have called another rally for Friday in Tahrir Square, while the Muslim Brotherhood, the organization through which Morsi gained prominence before he became president, has called for protests at Cairo University on Saturday.
By then, the constitutional assembly should have approved its proposed constitution. On Thursday, Hussam al Gheriany, the speaker of the constitutional assembly, managed to get through half of proposed 234 articles in seven hours before recessing until Friday. One member, Mohyi el Deen, repeatedly pleaded for more time to discuss the articles but was told to sit down. Several members asked to discuss their views on the articles.
“We don’t have time” Gheriany repeatedly replied.
Questions already had been raised about the document’s legitimacy. Fifty-three of the assembly’s original 100 members have dropped out. Most of those were political liberals, secularists and Christians who protested that the constitutional assembly was dominated by Islamists. Thursday’s meeting began with the assembly replacing 38 of the withdrawn members with new members, most of whom were Islamists. That brought total membership to 85, but no explanation was offered for that number.
The document itself is likely to prove controversial. It gives women fewer rights than earlier versions and expands legislative power. It offers Egyptians a litany of freedoms and protections but is peppered with caveats, with 33 articles containing the limitation “according to the law,” a loophole that would allow Parliament or the courts to maneuver around such protections.
The proposed constitution also protects the military from government oversight of defense policy and the military budget. That, said Ashraf el Sherif, a political science lecturer at American University in Cairo, suggests that Morsi has won military loyalty by protecting its key interests.
“The military got what it wanted. Its massive economic empire is intact,” Sherif said. “They will not get involved. They have been co-opted.”