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Losers and Big Losers

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

by ESAM AL-AMIN

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, fifty four 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 twelve-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.

On the other side of the dispute, the MB and its Islamist allies pressed ahead with their unilateral plans to mobilize the street, without any regard to the strategic implications for the country by driving it into a complete paralysis or plunging the nation in a civil strife. The MB and their Islamist supporters were convinced that the opposition would never be satisfied until the Islamists backed down or were defeated. And the Islamists simply fell into the trap. They called on their supporters to go to the streets in full force on December 11. Tens of thousands participated in the counter demonstration on that day as many speakers called for the establishment of an Islamic state and application of Shari’a law, easily heightening the tension in the country. This call was in sharp contrast to the constitution that they purportedly claimed to support, which called for a civil and democratic state. The dispute in this counter-demonstration was framed by the Islamists as a decisive battle to protect Egypt’s identity and to defend Islam from the liberal assaults. It was a gross mischaracterization of reality by the Islamist groups since the opposition, although deeply suspicious of political Islam, would not dare to question Egypt’s Islamic identity or heritage.

It’s the economy stupid! 

In their rush to discredit each other, both broad coalitions disregarded the cries and suffering of the average man or woman in the street. The economic situation in Egypt has deteriorated so much that poverty, unemployment, and crime have risen to unprecedented levels. As the ancient city lost its beauty and allure, thousands of street vendors have conquered and occupied downtown Cairo to the detriment of the existing shops and established businesses. Because of high unemployment and political turmoil the government has been unable to restore public order in many neighborhoods, affecting public safety and tourism, a major source of income and foreign exchange.

It is unclear why the MB was easily drawn by its detractors to engage in minor battles such as preserving the Islamic identity of Egypt. People across Egypt care more about bread and butter issues. Ultimately, Egyptians will judge Morsi and the MB on their performance, especially when it comes to restoring security, improving the standard of living, and stimulating economic growth.

Last October President Morsi stated that Egypt’s budget is about $94 billion with an unsustainable deficit of $25 billion or 11 percent of its $230 billion GDP (by contrast the ballooning $1.2 trillion US budget deficit is 8 percent of its GDP). Egypt’s expenditures are roughly spent equally on four main items: interest on its national debt, food and gas subsidies, and public employees’ salaries, while the last quarter of the budget is for the remaining government programs. In short, Egypt severely lacks any capacity to fix its deteriorating infrastructure, stimulate its economy, improve its services, or raise the salaries of its economically crushed six million government employees.

Although the FJP criticized the previous transitional government under the military rule for negotiating an IMF loan of $4.8 billion, Morsi’s government reversed course and has announced that it could not function without such a loan although it would only cover a small part of its annual deficit. As is typically the case, the IMF loan came with strings attached, as it demanded the removal of subsidies on fifty goods and by demanding the raising of income taxes. When the new taxes and removal of subsidies were announced on December 10, the president rescinded his own order within six hours, after realizing that he was handing his opponents a golden issue that could have revived the fading protests or could potentially influence the upcoming parliamentary elections.

But a revolutionary approach to Egypt’s chronic economic problems would be to not play the IMF card like Mubarak in order to plug the budget hole. Rather it would be to demand a long-term delay on paying the interest on Mubarak’s billions of dollars of debt accumulated over thirty years that consumes a quarter of Egypt’s annual budget. It also requires the president to talk frankly to his people asking for their understanding, patience, and shared sacrifices. It also entails the implementation of an aggressive program to return Egypt’s stolen wealth and resources, worth tens of billions of dollars, from Mubarak’s cronies and corrupt businessmen at home and abroad.

What’s in the constitution? 

Many critics of the new constitution charge that it was drafted by the Islamists and shoved down the throats of the secularists and liberals. They further claim that it was written behind closed doors with little participation or contribution from the general public. But both assertions are false.

It is true that a narrow majority of CCA members represented the Islamist parties along with independents that were sympathetic to their points of view. But since its inception, the CCA has been chaired by the nonpartisan Judge Husam Al-Ghariani (a long-time Mubarak critic and a well-known jurist who headed Egypt’s highest judicial body until his latest assignment in mid June). Al-Ghariani, who also heads Egypt’s Human Rights Commission, made sure that all views, whether Islamist, liberal, or leftist, were represented in the five sub-committees that either drafted the different articles or decided on its final wording. Even the secular parties do not dispute that they had substantial input in the final draft of the constitution and that the dispute only involves less than 20 articles out of its 236 articles.

According to Judge Ghariani, the CCA met 49 times for 240 hours, while its five sub-committees met 408 times for a total of 1622 hours. All of these meetings were publicly aired on television news channels. In addition, members of the CCA held eighty public hearings in Cairo and eighty more in the other twenty-six provinces across Egypt in order to explain the work of the CCA and receive input from the public. In addition, the CCA’s website received over 300 full constitutional drafts, over thirty five thousand amendments, and over a million comments. Ghariani further assured the nation that all these contributions were referred to and examined by the respective committees.

If one were to believe the secular opposition, the new constitution would create a theocracy like the Islamic Republic of Iran (regardless of whether Iran is actually a theocracy) or a dictatorship worse than Mubarak’s. Similarly, if one were to believe the Islamists and their supporters, the new document is the best constitution that has ever been drafted.

The truth is that the constitution does not even call for an Islamic state let alone a theocracy. As in every Egyptian constitution in the last half century, Article Two calls for the principles of Islamic Shari’a to be the main source of legislation. But this draft added article 219, which adopted an interpretation of Article Two drafted by Al-Azhar, the most renowned Islamic institution in Egypt for over a millennium. The new article was agreed upon by all Islamist and secular parties, including representatives of the Coptic Church in early October, before the latter groups withdrew a month later. In reality, the new article actually offers safeguards against conservative interpretations, contrary to any assertion by the secular opposition.

For example, left undefined, any minor or odd historical opinion in Islamic law if adopted by parliament would then become law unless it is declared unconstitutional by the SCC. But the only way it could be declared unconstitutional is to rely on article 219 that narrowly defines the definition of Islamic law as only the laws that are backed by complete proofs or historical consensus, which in fact comprise a limited set of precedents. Thus, most controversial opinions or precedents that irk many secular or liberal groups would be found unconstitutional. Once again the secular parties failed to understand the significance of Article 219, which actually exists for their protection against any overreach by the Salafis or any wild interpretations by extremist groups.

Article Three in the new constitution is actually unique in the history of Egypt’s constitutions since it enshrines the religious rights of Christians and Jews. It was an article written by the Christian churches, but willingly adopted by the Islamist parties in order to balance article two in the constitution.

Article Four was initially demanded by the secular groups fearing the interpretation of certain Islamic laws by the conservative Salafis. It required parliament to refer any legislation directly related to Islamic laws to be reviewed by Al-Azhar. It is noteworthy that during the debate on this article, the secular opposition demanded that the opinion of Al-Azhar be binding on the parliament. This would have in reality turned Egypt into a theocratic state since it would have obligated elected officials to be bound by non-elected religious scholars. Ironically, the Islamist parties insisted on having the opinion of Al-Azhar be non-binding, leaving the final decision in the hands of the elected parliament. In other words, the Islamist parties rejected the dominion of an unelected religious institution over an elected political and civilian body while the secularist demanded the opposite.

Furthermore, the new constitution enshrines many rights and protections unrivaled in many advanced democracies. For instance, it requires the state to charge a suspect within 12 hours of his arrest, offer an attorney within 24 hours, and present him before a judge facing official charges within one week. Otherwise, he must be released. It also allows the establishment of any political parties or media outlets with a simple registration form, without any approval process by the state. In addition, it bans all forms of torture while dropping its statute of limitations, and allows victims to bring their torturers directly before a judge if the state declines to prosecute. It even requires the judge to apply criminal sanctions if the accused are found guilty.

In addition, the drafters of the constitution included many articles that enshrined many political rights and added economic protections. It is difficult to see how the new economic promises will be paid for if the referendum passes. For example, the constitution guarantees a minimum wage and pension. If applied immediately as stipulated in the constitution, many public employees, workers, and pensioners would see their salaries double or even quadruple. How would that impact the weak Egyptian economy that is at the brink of collapse? Where will the state bring the extra money to cover the new increases in salaries when it is already struggling with 27 percent deficit of its budget (or 11 percent deficit of GDP)? How would the new sudden increases affect the inflation rate, which is already exceeding ten percent annually? Who would enforce the minimum wage standard with the weak existing government institutions?

Commendably, the new constitution guarantees all Egyptians access to free and quality health care as well as free education even at the university level. If implemented immediately, the Egyptian budget for education and health care would have to be increased by four to six times to fulfill these grand promises. In addition, the new constitution guarantees a monthly stipend to the unemployed (over 4 million), senior citizens (over 3.5 million), widows, divorced mothers, homemakers (countless millions), and the poor (over 20 million people are considered poor as poverty is defined in Egypt at $512 per year per person). These idealistic but unrealistic promises of the welfare state are not even matched in any Scandinavian country. If a quarter of these promises were to be fulfilled at the minimum wage established by the courts ($200 per month), Egypt would then need to increase its budget by $24 billion (or a deficit of another 10 percent of its GDP). Utterly impossible.

It is amazing that no one in the political arena is debating the devastating impact on the budget once the constitution passes. If the government was obligated constitutionally to fulfill these lofty promises as asserted by the drafters of the constitution, where is the money going to come from? And if it cannot afford them, why then give these assurances to the people only to have their hopes dashed? It was completely irresponsible of Morsi to accept such a document without thinking through its overall economic implications. After all, it is the president who is in charge of protecting and implementing the constitution.

Although there are many articles that can be improved in the new draft, there are several major flaws in the constitution that amazingly both the supporters and opponents of the constitution have ignored. With the exception of the Dr. Abol Fotouh’s Strong Egypt Party and some youth activists, very few have challenged the role of the military in the new constitution. For the first time ever, the military would be afforded a constitutionally sanctioned special status in a supposedly democratic state run by civilians. It is clear that the political civilian leadership in the country, led by the FJP but also with the concurrence of most of the other parties including secular ones, has struck a bargain with the military and acceded to their demands. It appears that in return for its non-interference in the political process, the military has largely maintained its autonomy and privileges with very limited civilian oversight. For the first time ever, the Egyptian constitution now mandates that the Defense Minister be appointed from among its ranks, a condition that did not even exist during the last six decades when military officers actually ruled Egypt. The military also would dominate the body in charge of defense and national security policies.

Astonishingly, another major weakness of the constitution is the very system of government it embraces. The Islamists boast that the constitution reduces the power of the presidency while the secular parties complain that it gives it dictatorial powers even in its diminished capacity. The new draft adopts neither a parliamentary system where the majority party dominates, nor a presidential one. It embraces what is referred to as a mixed or hybrid system, or what is sometimes called the pseudo-presidential system. The advocates assert that this system is similar to France, yet they fail to consider the historical evolution of the French system and the flaws inherent in their new design.

Historically, the system of government in France’s fifth republic was an improvement over its third and fourth republics, which were basically parliamentary systems led by a prime minister. Generally, parliamentary systems suffer from instability because of shaky alliances formed to establish a majority government. In addition, when the majority party or coalition forms the government, the supervisory or oversight role of the parliament over the government diminishes and becomes much weaker as the majority party has little incentive to hold itself accountable.

Furthermore, the French president who appoints the prime minister, typically from the majority party in parliament, has historically retained the ability to freely choose his prime minister and fire him at will. Despite these protections, the French government was historically at its lowest performance levels, politically and economically, when the French president and prime minister were from different parties. Such periods are referred to as co-habitation. To reduce the possibility of this scenario, the French voted in 2002 to cut the term of their president from seven to five years so that they could run presidential and parliamentary elections within the same year. They reasoned that holding the elections during the same time span would lessen the possibility of co-habitation.

Indeed this lesson was learned the hard way in Iran. In the aftermath of its 1979 Islamic revolution, the country also adopted the hybrid French system of sharing executive powers between the president and his prime minister, who was also appointed from the majority party in parliament. Over the years, the system proved to be dysfunctional even when the president and the prime minister were from the same party. In 1989, the Iranians amended their constitution and abolished the position of prime minister.

In the new Egyptian constitution, the president essentially cedes all economic and domestic policies to his prime minister, who is empowered to appoint the cabinet with the exception of a few portfolios, such as foreign and defense ministers. The main responsibility of the president in this constitution is to oversee the areas of national security, foreign affairs, and defense. Since the military is basically entrusted with most defense policies, the major responsibility of Egypt’s president in the new constitution is essentially to run foreign affairs with indirect input on other national matters.

Furthermore, the term of the president is four years while the term of the parliament is five years. So presidential and parliamentary elections would only align once every two decades. Therefore, it is not implausible that once Egyptian democracy takes root and becomes more vibrant and competitive, the president might oftentimes come from a different party than that representing the majority of the parliament, leading to unhealthy rivalry or even paralysis.

Most assuredly it will be a crude awakening to the Egyptian electorate to realize that when they elected their president he did not have enough power to implement any of his domestic agenda or platform that he advocated and received a popular mandate to carry out, especially if the majority party represents a different ideology or advocates an opposing platform.

Moreover, the constitution offers a convoluted way of choosing the prime minister. Initially, the president is allowed to nominate a prime minister. But if rejected by parliament, the president is then obligated to nominate a candidate from the majority party. If rejected again, then the majority party can impose its own candidate on the president. In short, the new constitution creates a much weakened and frustrated presidency where a popularly-elected president is superseded in domestic affairs by a prime minister who was in all likelihood selected by the bosses of the majority party.

It is unfortunate that the FJP officials, who believe that they would retain their status as the majority party in the foreseeable future have opted for their short term political gain over the efficient functioning of governance. The proper way to deal with the previous model of the imperial presidency was not to strip it from its effective executive power to run the government, but to strengthen the other branches of government, namely the legislative and the judiciary, and to design a system of effective checks and balances.

Another flaw in the draft is that it allows the president to dissolve parliament even though both are popularly elected. This unnecessary power given to the president violates the concept of separation of powers hailed in the constitution. The president also has limited powers in appointing many senior officials and no authority in selecting any judge or prosecutor. In most cases, there are autonomous government institutions that nominate and elect these officials and impose them on the president. His role is basically reduced to simply signing their appointment letters like any government bureaucrat. So it seems that the nascent Egyptian democracy may require considerable time before it adjusts and calibrates its system of government.

Egypt did not become the center of the Arab world in the past century because of its sizable population, central location, or great wealth. The primary reason for Egypt’s dominance in the Arab World, and indeed across the southern hemisphere for many decades, was its intellectual prowess, diverse and vibrant culture, and dynamic society in all fields of human civilization and development, including scholarship, innovation, education, the sciences, the arts, literature, cinema, and the theatre.

During the decolonization period and even throughout the Nasser and Sadat dictatorship eras, Egypt produced giants in all realms of intellectual activities. But remarkably, today’s Egypt is extremely poor, not just in material resources, but in producing intellectual leaders and pillars able to upheave the spirit of the country and guide it towards its ultimate glorious destination at the altar of history. Egypt deserves a much better political class than today’s petty players who battle for small and momentary political gains. The nation needs to discard its bickering elites and create new generations capable of realizing its great potential to lift up not only its people, or even the Arabs, but to be a shining example to the entire world of how a true, just, and harmonious society emerges from decades of repression, corruption, and despair.

Esam Al-Amin can be contacted at alamin1919@gmail.com