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Egypt's Constitution, the Opposition, and the Dialogue of the Deaf

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Headlined to H4 12/14/12

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Cross-posted from CounterPunch

Losers and Big Losers



December 8 was the day President Muhammad Morsi had chosen two nights earlier during his address to the nation. In his speech, he called for an open dialogue with the opposition and other political parties as they tackled the political crisis engulfing the country since he issued his controversial constitutional declaration of November 22.

With the exception of Al-Ghad Party, all leaders of the National Salvation Front (NSF), the main opposition coalition that includes most secular parties, refused to attend the meeting with the president, insisting first on the annulment of the constitutional declaration and the cancellation of the referendum scheduled for December 15. The NSF's main leaders, including former presidential candidates Amr Moussa, Hamdein Sabbahi, and Dr. Mohammad ElBaradei, not only boycotted the gathering but also issued a stern warning that if the president did not accede to their demands they would escalate their protests by calling for general strikes and civil disobedience.

Other revolutionary youth groups such as the April 6 Movement also refused to attend the meeting, charging that it was a ploy by the besieged president in his attempt to placate the opposition. Former presidential candidate and moderate Islamist Dr. Abdelmoneim Abol Fotouh, of the Strong Egypt Party, also boycotted the meeting on the grounds that the president had not demonstrated seriousness in trying to resolve the political dispute.

A missed opportunity: A dialogue with oneself

By the afternoon of December 8, 54 prominent individuals showed up to meet with Morsi and his top lieutenants. Most of the participants were senior representatives of Islamist parties such as the Muslim Brotherhood's affiliated Freedom and Justice Party (FJP), which Morsi headed before becoming president, the Salafist Al-Noor Party, Al-Wasat, Al-Asala, and other smaller Islamist parties. Dr. Ayman Noor of Al-Ghad Party also participated but his was the only secular party in attendance. In addition, many constitutional scholars such as Dr. Ahmad Kamal Abol Magd, Dr. Tharwat Badawi, Dr. Gamal Gibreel and Dr. Muhammad Salim Al-Awwa took part in the meeting that also included other renowned intellectuals such as author and columnist Fahmy Howaidy and political scientist Dr. Manar El-Shorbagy.

After a 12-hour marathon meeting, the participants held a press conference announcing a new constitutional decree by the president that annulled the infamous Nov. 22 declaration. On its face, it was a major concession to the opposition since this was its principal demand ever since the previous decree had been issued. Although the new declaration voided the previous one, it also preserved some of its direct consequences, primarily the sacking of the former general prosecutor.

Morsi's main motivation for issuing the first decree was to place his decisions outside any judicial review in order to prevent the Supreme Constitutional Court (SCC) from dissolving the Constitutional Constituent Assembly (CCA), charged with drafting the new constitution, and Majlis Al-Shura (the upper house of parliament, dominated by the FJP and Al-Noor Party). But when the CCA concluded its work on November 30 followed by the presidential announcement of holding a general referendum on December 15, there was no more danger of the SCC  dissolving the CCA. If the court were to eventually dissolve the Majlis Al-Shura, the FJP calculated that it would likely win any new Shura elections over its divided rivals.

So in Morsi's judgment, replacing the constitutional declaration was a desirable outcome since he would appear to have given a concession to the opposition without endangering the work product of the CCA. But perhaps a more important reason for backing down was the strong negative reaction of Egypt's judges, an overwhelming number of whom were on strike because of his earlier decree. Most judges also threatened that unless Morsi rescinded that decree they would not supervise the referendum as stipulated in law, which in turn would have doomed it and delayed the passing of the constitution. In short, it was a smart political move by Morsi to issue the new decree by appearing conciliatory, getting the referendum on the agenda, and gaining back most of the judges.

According to the participants in the meeting, most of their time was spent discussing ways to cancel or postpone the constitutional referendum, the other main demand of the opposition. Ultimately, the constitutional scholars in attendance concluded that the president could not delay the referendum on technical legal grounds. The March 2011 public referendum that passed with 77 percent of the vote stated that once the CCA concluded its work the public must vote on it within fifteen days. Hence, the legal scholars reasoned that any cancellation or postponement could only occur by holding another public referendum. But what no one argued was the fact that the president had earlier contravened the same public referendum unilaterally in his first decree when he extended the time frame of the CCA from six to eight months. These same scholars failed to point out that such an extension could not have occurred by a presidential decree but would have required a public referendum.

Nevertheless, this was the predicament of the opposition. They were always one step behind, and continued to lose momentum because they overplayed their hand. When the president, in his first decree extended the mandate of the CCA by two months past its December 12 deadline, the NSF objected and asked for the CCA to be dissolved. The direct result was for the CCA to speed up its work and finish the draft two weeks ahead of its December deadline. When the president called for a dialogue and a meeting with the opposition as he placed all items on the agenda, the NSF boycotted the meeting and missed the opportunity to force the postponement of the referendum, as, in their absence, the other side was able to dismiss this request on technical grounds. And when it became inevitable that the referendum was going to take place as thousands of judges agreed to supervise it after the annulment of the first decree, the NSF then asked for dialogue with the president to resolve the dispute. Always late, with little or no achievements to show for the opposition's obstinate positions.

The December 8 decree also set in motion a process of choosing a new CCA in case the new constitution was voted down. It stipulated that within three months the Egyptian electorate would select a new one hundred-member committee to draft the constitution. Clearly, if the recent past is any indication, the secular opposition would again be outvoted by the Islamist parties at the ballot box. If the opposition had 50 or 45 percent in this CCA, they would more likely fare much worse if the new CCA composition were to be determined through elections. Another grave miscalculation by the opposition.

One of the outcomes of the "dialogue" meeting was for the president to throw a carrot to the opposition in order to mollify them and lessen their hostility towards the draft.  He promised to submit any amendment by any opposition party to any article in the constitution to the new parliament once elected. It was another ruse since according to the new constitution, twenty percent of parliament members (or the president) could submit an amendment. But for the amendment to be even discussed, it needed a majority of support in both chambers, and for it to pass it required a super majority of two-thirds in both chambers, a tall order in any parliament dominated by the Islamists.

The opposition is split 

The immediate reaction to the new declaration was euphoria by the president's supporters, and despair by the opposition. The main leaders of the opposition, Moussa, Sabbahi, and ElBaradei were defiant and continued to demand the cancellation of the referendum. But Ayman Noor and Essayed Badawi of the liberal Al-Ghad and Wafd Parties, respectively, accepted the call for dialogue and announced that they would participate in the referendum and recommend a no vote to their constituents. Similarly, the Strong Egypt Party and the April 6 Movement announced their participation with a strong appeal of a no vote by citing some problematic articles, especially those related to the role of the military, clauses linked to civil freedoms and protections, as well as social justice issues.

After it became clear through public opinion polls and the participation of enough judges to supervise the referendum, even the NSF call for its cancellation had fizzled, as the main opposition group asked its supporters to go to the polls and cast a no vote. Meanwhile, thousands of supporters of the MB continued to besiege the SCC building for a second week, fearing that it might rule the CCA's composition as unconstitutional in the intervening time between the new decree and the referendum. Simultaneously, thousands of opposition supporters camped around the presidential palace calling for the impeachment of the president and an end to MB rule.

Losers but no winners 

For the past three weeks, Egypt has been in turmoil. Its political structure has fractured almost fatally. The political order has become a zero-sum game. During the beginning of the crisis, the opposition thought that they had Morsi and his MB supporters on the ropes. They exploited the decree overreach by the president in order to bring him down. They refused to compromise, negotiate, or even meet. Their opposition was never about the decree or the constitution. One of their leaders, Dr. Osama Al-Ghazali Harb, even stated in a moment of candor during a December 10 press conference, that the demonstrations were about bringing down the rule of Morsi and the MB. Sabbahi and ElBaradei also said as much during their speeches throughout the crisis as they declared that the president had lost his legitimacy. In a last ditch effort to stop the momentum of the referendum, the opposition called for a massive demonstration in front of the presidential palace on December 11. Although there were thousands of angry protesters, the numbers were much smaller than they had been in previous demonstrations. But this protest framed the issue as an opposition to dictatorship, an enormous mischaracterization of reality. Morsi who has been in power for less than six months has hardly been successful in controlling the levers of power in the country including the army, the security forces, the economy, the media, or the state bureaucracy.

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Esam Al-Amin is a regular contributor for a number of websites.
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