Morsi’s Putsch: Battle lines are drawn—Details in draft constitution reveal Muslim Brotherhood’s strategy to seize all power in Egypt, as democrats defend the rule of law

Revised December 21, 2012

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On Sunday, the Muslim Brotherhood used Hitler’s “Brown Shirt” tactics in an attempt to intimidate the Constitutional Court, which was to render decisions on two important cases, one involving the legitimacy of the “constituent assembly” that has just approved a rushed draft constitution.

The judges of the Constitutional Court suspended their work, in view of what they described as blatant intimidation and threats to their safety from a contingent of Muslim Brotherhood supporters.

Later in the day, the Judges Club announced that the judges in the nation’s judiciary would not oversee the referendum Morsi has called for December 15. Without their participation, the results of the vote will lack any legitimacy.

Morsi and the Brotherhood have through their Putsch or coup d’etat destroyed any and all trust that they might have built up with the secular and democratic parties of the opposition. The two forces are now headed toward a showdown, with the outcome impossible to predict. Morsi shows signs of wanting to defuse the crisis, but the Muslim Brotherhood’s real strategy and willingness to use all illegitimate means to achieve power has been laid bare for all to see.

A word should be said about the Egyptian judiciary, which Morsi has summarily dismissed as judges appointed by Hosni Mubarak. In fact, the judiciary is notable for the very substantial degree of independence it has developed over the years, except in the most political of cases. All of the judges were appointed under Mubarak, to be sure, because there was no other way to become a judge in Egypt.

The Brotherhood should bear in mind the example of the President of the Supreme Court in Pakistan who, when dismissed by the government led a movement of judges who marched on Islamabad and ultimately forced a change in government and his reinstatement.

The full thrust of the draft constitution can be seen in Article 219, which adds to the general guidance by “the principles of sharia contained in Article 2 of the new draft (repeating the language of Article 2 of the 1971 constitution), the following:

Article 219
The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community.

Note also the following provisions:

Article 228
The High Elections Commission, existing at the time this Constitution comes into effect, shall undertake the full supervision of the first parliamentary elections. The funds of the Committee and of the High Presidential Elections Committee are transferred to the National Electoral Commission, as soon as the latter is formed.

Article 229
Procedures for the first parliamentary elections shall begin within 60 days of this Constitution coming into effect, the first legislative term held within 10 days from the date of announcing the final result of the elections.

In this House of Representatives, farmers and workers shall have a minimum of 50 percent representation.

A worker refers to anyone who is hired by another for a fee or salary. A farmer refers to anyone who has taken agriculture as a profession for a minimum of 10 years preceding parliamentary nomination.

The standards and regulations required for a candidate to be considered a farmer or a worker shall be determined by law.

Under Article 230, the upper house, or Shura Council, is given full legislative authority until a new lower house is elected and installed.

Article 230
The existing Shura Council shall assume full legislative authority until the new House of Representatives is formed. Full legislative authority will then be transferred to the House of Representatives, until the election of a new Shura Council, which shall occur within six months from the start of the House of Representatives’ session.

Of great significance is Article 233, which eliminates all but the ten longest-serving members of the Constitutional Court, sending the removed judges back to the positions they held before assuming their high posiitons. The provision states:

Article 233
The first Supreme Constitutional Court, once this Constitution is applied, shall be formed of its current President and the 10 longest-serving judges among its members. The remaining members shall return to the posts they occupied before joining the court.

Further, those tried in accordance with article 777, third paragraph, will have no right of appeal, according to Article 234, which provides:

Article 234
The provision concerning appeals on verdicts issued on crimes stated in the third part of Article 77 shall be valid starting a year after the Constitution has come into effect.

[Article 77 paragraph (3) provides:
“The law regulates the rules of appeal for felonies and offenses.”]

Finally, Morsi’s claim that his “constitutional decree” will be abrogated when the new constitution enters into force is belied by the text and legal legerdemain of Article 236, which stipulates:

Article 236
Constitutional declarations issued by the Supreme Council of the Armed Forces and by the President of the Republic from 11 February 2011 to the date of the adoption of this Constitution are hereby repealed, while their consequent effects shall remain valid and in force and may not in any way be appealed against.

All in all, there can be little doubt that the draft constitution, adopted in irregular fashion by the constituent assembly just before the Constitutional Court was to rule on whether it was legitimate and named in accordance with the law in force at the time it was appointed–which decisions were thwarted on Sunday by the use of Brown Shirt tactics–is aimed at consolidating the Putsch (coup d’etat) of Morsi and the Muslim brotherhood.

The draft establishes a much stricter form of sharia as the law of Egypt, provides means for manipulation of the first national assembly election results through limiting the membership to 50% workers and farmers, “as determined by law”, and removes the eight most junior members of the 19-member Constitional Court, replacing some of its key members through artful language that is highly deceptive in its simplicity.  Appeals against convictions of felonies and other crimes are suspended for one year, thereby violating fundamental international human rights obligations to which Egypt is a party.

Finally, in Article 236 the draft constitution maintains the effects of Morsi’s” constitutional decree” of November 22, notwithstanding the sophistry of saying the decree is abrogated while its effects continue in force.

This is the coup d’etat that the Muslim Brotherhood has launched against the advocates of a democratic revolution in Egypt.

The Muslim Brotherhood has now forfeited all claim to be trusted by the opposition, or to be viewed as a pro-democratic force.

The Trenchant Observer