President Morsi may have emerged victorious after negotiating a truce between Hamas and the Israeli government following the assault in Gaza, but the tone at home is not one of celebratory ululations. A few days earlier, a peaceful protest began in downtown Cairo in memory of the young people who fell victim to the military and Ministry of Interior assault a year earlier during the uprising, known as the Mohamed Mahmoud events. This time around, over one hundred young people have been injured in the same place where their friends and family fell victim last year. 

Meanwhile, the constituent assembly tasked with drawing up Egypt’s new constitution stood on shaky ground - more so than ever before. The Coptic Christian churches representing the country’s largest non-Muslim religious minority had withdrawn from the constituent assembly in protest against the highly exclusionary process of drawing up the constitution and its many discriminatory articles. Soon to follow suit were the journalists’ syndicate, representatives from the judiciary and key political figures. Many opposition figures warned that the 67% Islamist bloc in the constituent assembly was likely to rule by majoritarian fiat, not consensual politics.

Against this backdrop of internal political turbulence and external endorsement by the US, President Morsi issued a constitutional declaration on Thursday 22 November.

The first article of the constitutional declaration announced the intention to “reopen the investigations and prosecutions in the cases of the murder, the attempted murder and the wounding of protesters as well as the crimes of terror committed against the revolutionaries by anyone who held a political or executive position under the former regime, according to the Law of the Protection of the Revolution and other laws.” Interestingly, no reference was made here to prosecuting the Supreme Council on Armed Forces ( SCAF), under whose leadership peaceful protestors were killed in Muqattam, Maspiro, Mohamed Mahmoud Street and in front of the Cabinet in 2011-2012. This seeming impunity awarded to SCAF only serves to confirm suspicions that at the time of the ousting of President Mubarak, an informal political settlement was reached between the army and the Muslim Brotherhood involving the facilitation of the Brotherhood to political power in return for a “safe exit” for the army generals.

The second article declares “Previous constitutional declarations, laws and decrees made by the president since he took office on 30 June 2012, until the constitution is approved and a new People’s Assembly [lower house of parliament] is elected, are final and binding and cannot be appealed in any way by any entity. Nor shall they be suspended or cancelled, and all lawsuits related to them and brought before any judicial body against these decisions are annulled.” In effect this centralizes power in the hands of the President in an absolutist way, rendering him unaccountable and putting him above the rule of the judiciary. Even Mubarak at the apex of his power had to concede to the Supreme Constitutional Court, one of the few state institutions that had retained a measure of integrity and autonomy from the executive powers in the country, historically and in contemporary times.

The third article gives the President the right to appoint the Prosecutor General and the right to change him immediately. This is an element of Morsi’s constitutional declaration that is welcomed by most because of the current Prosecutor General’s history of supporting the Mubarak regime. However, to accept the notion that the President should have the right to fire and hire at will only serves to undermine the rule of law.

The fourth article extends the period in which the Constituent Assembly must complete the constitution by another two months while the fifth article reads: “No judicial body can dissolve the Shura Council [upper house of parliament] or the Constituent Assembly.” The Supreme Constitutional Court (SCC) had already deemed the Islamist majority upper and lower houses of parliament unconstitutional on the basis of the illegality of the electoral law (on the basis of technicalities to do with the parties allocating candidates for independent seats). 

The SCC had previously ruled the first constituent assembly unconstitutional on the premise of its non-inclusiveness and was due to rule on the current constituent assembly at the end of the November. By usurping the judiciary’s power to adjudicate on the legality of procedures, systems and policies, President Morsi is effectively eliminating the only remaining bastion of the state empowered to exercise a check on the executive powers currently in the hands of the Muslim Brotherhood.   

What we are witnessing today is a direct relationship between the declining legitimacy of the Muslim Brotherhood-led government in the eyes of many of the country’s non-Islamist political factions and the increasing expansion and consolidation of power in the hands of President Morsi.

The legitimacy of the Constituent Assembly, led by a 67% Islamist majority, was already in question because of the increasing withdrawal of several political elements and factions in Egypt. The legitimacy of the regime was also called into question when brute force was used by the Ministry of Interior against the protestors, reviving in people’s memory Mubarak’s security crackdown on dissidents. There is a cruel irony in the fact  that while the regime is using violence to eliminate revolutionary youths in downtown Cairo, the President is defending his latest constitutional declaration on the basis of defending the demands of the 25 of January revolution, just like SCAF when they represented themselves as the guardians of the Egyptian revolution (see Morsi’s speech).

According to article six of Morsi’s constitutional declaration, “The President may take the necessary actions and measures to protect the country and the goals of the revolution”- in other words, the draconian emergency law (which gave the Ministry of Interior the right to arrest citizens without charge) may return in one form or another. The measure was justified, much like during Mubarak’s reign, on the basis of its necessity for securing “stability” by resorting to violence.

Ironically, President Morsi, who was sworn into office before the Supreme Constitutional Court, is encroaching upon the prerogatives of one of the key institutions of a functional state: the judiciary. Authoritarian rule is being window dressed as “defending revolutionary principles” and “democracy” as expressed in his speech to the Islamist audience gathered to hear him in one of Cairo’s squares (El Ettahadeya) on 23 November. Something else is happening beneath the surface that gives this dictatorship its Islamic character. The Muslim Brotherhood have presented this struggle as one between those in favour of Islam and upholding Muslim rule versus the secularists who are against God’s Shariah and traitors to their religion. Consequently, most of the Islamist political forces such as the Wasat Party, the Salafis and the Gam’at Islamiyya have joined in the chorus of President Morsi’s defence. During the Muslim Brotherhood led protests in favour of Morsi’s edicts, the slogans included “The people want to cleanse the judiciary, the people want the implementation of God’s Laws (Shar’ Allah). The implementation of the Shariah would entail the replacement of many of the country’s non-Islamist judges with appointees who are graduates from Shariah faculty at Al-Azhar University and Islamic studies departments from Egyptian universities. What we are witnessing is an overhaul of the judiciary, and an encroachment on the judiciary’s independence by the executive in the proposed constitution and in Morsi’s edicts, which consolidate Islamist power from above while deepening power from below by mobilizing the masses to rise in defence of Islam .     

Is Egypt on the road to an Islamist dictatorship or is the process still reversible?