Morsi the Trickster’s Latest Trick–Repeal of the Constitutional Decree of November 22

Instead of acting like a statesman eager to regain the trust of the nation, the president gives more of the appearance of a small-minded merchant tenaciously trying to trick buyers at the bazaar.

Egypt’s President Mohamed Morsi and the Muslim Brotherhood made a tremendous miscalculation immediately after Morsi played a constructive role in the establishment of a cease-fire between Hamas and Israel in Gaza.

Perhaps the success went to Morsi’s head. Perhaps they read Hillary Clinton’s praise as unconditional support.

Whatever happened, Morsi was emboldened to launch a coup d’etat on November 22, 2012, when he issued his “constitutional decree” giving himself full powers, eliminating judicial review of his actions, and “solving” serious problems which he and the Brotherhood faced in the transition to democracy.

The first problem he sought to “solve” was the fact that the constitutional court was on the verge of issuing a decision on the constitutionality of the elections to the constituent assembly. The assembly had appointed a drafting committee heavily stacked with Islamist members, and was finishing a draft constitution which effectively enshrined a stricter version of sharia than that established by the language found in Article 2 of the 1971 constitution (which was also repeated in the new draft).

To avoid the court reaching a decision, the November 22 “constitutional decree” eliminated judicial review of the government’s actions, and placed dictatorial powers in Morsi’s hands.

A second measure to avoid the Court’s reaching a decision was the rushed approval by the constitutent assembly of the draft constitution, in a marathon, all-night session boycotted by the opposition. Opposition members of the drafting committee had withdrawn some time before when their concerns were not listened to or addressed in the draft text. The draft constitution was issued, and as provided in the law a referendum was called for December 15 to approve or disapprove it.

But this was not enough.

To make sure that the constitutional court would not reach a decision–even physically–despite the fact that Morsi’s decree had already deprived it of the power of judicial review, the Muslim Brotherhood sent demonstrators who surrounded the Court building, intimidated the justices, and made it impossible for the Court to meet and reach a decision on the constitutionality of the elections of the constituent assembly. In doing so, the Brotherhood resorted to the “Brown Shirt” tactics used by Adolf Hitler’s thugs in his rise to power in Germany. Judges reported that they had received death threats on their telephones.

The draft constitution which was rushed to completion itself contains numerous provisions which violate basic principles of human rights and the separation of powers. It also has special provisions, such as the one that removes eight of the 19 members of the Court, sending them back to the jobs they held before taking their positions on the court.

The opposition did not accept Morsi’s coup d’etat. Demonstrations ensued, with those on Thursday, December 6 resulting in the deaths of seven people.

Throughout this process, Morsi proved utterly unyielding in his determination to by-pass the constitutional court and its potential decision, and to impose the draft constitution approved by the constituent assembly in the absence of its opposition members.

Now, the armed forces have spoken and expressed their intent to uphold the democratic principles of the revolution.

Morsi, in response, has come up with yet another “trick” concession, that is, a concession which appears to be a concession but which really isn’t because it does not affect his achieving the results he was driving for from the beginning of his coup d’etat.

He says he will revoke the constitutional decree of November 22. But the concession is meaningless, because he has already prevented the constitutional court from reaching a decision. If the constituent assembly was elected by unconstitutional means, the constitution which they drafted is similarly tainted. But Morsi has kept the court from reaching a decision.

In fact, the draft constitution contains a provision which purports to repeal the November 22 decree, but then goes on–with great legal sophistry–to say that none of the decree’s effects shall be changed or subject to judicial review.

Indeed, it is not clear whether Morsi’s latest “concession” goes beyond what is already contained in this article.

The trick is that President Morsi is trying to appear as if he is granting a concession, when in fact he is clinging to the fruits of his illegal coup d’etat. Instead of acting like a statesman eager to regain the trust of the nation, the president gives more of the appearance of a small-minded merchant tenaciously trying to trick buyers at the bazaar.

With  his control of the electoral machinery, moreover, it is far from clear that any referendum on December 15 could be fairly held, with the votes fairly counted. Morsi has lost the trust of a very large portion of the Egyptian people.

Furthermore, there is obviously too little time for the provisions of the draft constitution to be publicly analyzed and debated. Consequently, holding the referendum under such circumstances, in terms of constitutional logic, defeats the very purpose of the vote.

Any vote on a draft constitution written under these illegitimate circumstances would be illegitimate, and meaningless.

What is required now is for Morsi to back things up to the status quo ante, back to where they were before the decree of November 22. That means that the constitutional court must be allowed to reach and issue its decision.

It also means that the Attorney General, dismissed by that decree, must be reinstated.

It means further that the rushed process of shoving a draft constitution down the throats of all opposition and independent groups in the country needs to be undone. Instead, an inclusive process must be established to draft a serious and modern constitution, based on the maximum degree of consensus that can be developed.

Morsi’s latest concession is nothing but a trick, designed to give him the fruits of his illegitimate actions–including the use of thugs and death threats to prevent the constitutional court from reaching a decision on the legitimacy of the constituent assembly–while appearing to compromise.

A further question is the extent to which Morsi has been following the advice of his government ministers and advisors, or rather the guidance of the supreme guide or a faction of the Muslim Brotherhood. This issue must also be addressed and resolved, as such actions are clearly inconsistent with the basic constitutional principles of any democracy. Moreover, the question of whether Morsi can really lead Egypt, after launching a coup d’etat, is on everyone’s mind. Ultimately, if his intransigence continues, this could become a question that the military may have to resolve.

If the opposition and Morsi cannot reach agreement on cancellation of the referendum and a restart of the drafting proces for a new constitution, they should be joined by members of the armed forces to establish a process that ensures that the constitution that is drafted is fully developed, protects fundamental rights, contains modern provisions on the separation of powers and the independence of the judiciary, and is adequate to the challege of guiding Egypt’s democracy in the 21st century.

The Trenchant Observer