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Nov 30, 2012 | 19:32 GMT

6 mins read

Egypt's Brewing Constitutional Crisis

Egyptian President Mohammed Morsi in Cairo on Nov. 23
-/AFP/Getty Images

Egypt's Constituent Assembly approved a final draft of a new constitution early Nov. 30, days before the Supreme Constitutional Court is scheduled to hold hearings on the assembly's legality. President Mohammed Morsi is expected to ratify the constitution — a necessary step before sending it to a national referendum. Meanwhile, massive demonstrations both opposing and supporting Morsi and the Muslim Brotherhood are scheduled for Nov. 30 and Dec. 1.

Egypt is nearing a constitutional crisis. If a referendum on the new constitution occurs, the Muslim Brotherhood likely will secure enough support for the new constitution to be approved. But if Egypt's Supreme Court deems the Constituent Assembly invalid in the interim, it is unclear what would happen next.

Currently, there are three key centers of power in Egypt: the Brotherhood, the military and the judiciary (the judiciary dissolved the legislative branch in June). Each operates under considerable constraints that shape the balance of power among them. A resolution to the constitutional crisis will take time, and while the outcome is unknown, one of the consequences could be the advancement of the Brotherhood's ultimate goal of an Islamist-dominated Egypt. 

The Egyptian military's chief constraint is that it does not want to govern directly. It prefers to work behind the scenes, letting a civilian government be held responsible for a troubled economy, unemployment and myriad other economic, social and structural problems in the country. The military seeks to protect its own vested interests in the military-industrial complex and its control over the Suez Canal while retaining a deciding voice in national security affairs.

Moreover, the military needs to prevent any Egyptian government, especially an Islamist one, from threatening the peace treaty with Israel and placing Egyptian forces in a situation that would destabilize the country. Finally, the military is not a monolith and now likely contains many Brotherhood supporters, especially within the upper ranks.

The Brotherhood's Position

The Brotherhood dominated the parliament until June, when the Supreme Court declared the elections law under which parliamentary polls were held invalid. The Brotherhood needs to regain the lower house of parliament, but to do so it must complete the constitutional process and get a constitution approved by national referendum. Unable to operate through the parliament, the Islamist movement has pursued its agenda through the executive branch via Morsi. The Brotherhood also dominates the Constituent Assembly and the Shura Council (the upper house of parliament).

The Brotherhood's constraints are many but the most important is its need to cooperate with the military. It does not want to provoke a situation in which the military has to retake control of the government. Other constraints that shape the movement's strategic choices include a highly troubled economy that needs infusions of cash from external powers and a constituency whose expectations are high regarding what the Brotherhood will do to resolve chronic unemployment and other economic and social problems. 

The secular liberal political opposition is another constraint for the Brotherhood, albeit a weak one. The opposition movement is divided and includes youth movements that were at the forefront of the 2011 uprising, secular political parties that fared poorly in the last parliamentary elections and remnants of the Mubarak-era establishment. Though the opposition is showing a rare unity and ability to marshal protests, it is unclear whether it can sustain either. 

Feud with the Judiciary

The courts have been the most pressing constraint on the Brotherhood's efforts to entrench itself within the Egyptian civilian bureaucracy and judiciary — the last bastions of Mubarak-era opposition. Indeed, the courts have been the primary force curbing the movement and Morsi's power, with one exception: In August, the courts chose not to intervene when Morsi sacked the head of the Supreme Council of the Armed Forces, Field Marshal Mohamed Tantawi, and Armed Forces Chief of Staff Sami Anan and reshuffled the military to bring in a more Brotherhood-friendly leadership.

The current crisis in Egypt essentially is an attempt by the Brotherhood to escape some of these constraints. Morsi's Nov. 22 constitutional declaration granted him the power to issue laws and rulings that would not be subject to judicial reversal. The Brotherhood's campaign to pass the new constitution also will set up the movement to regain parliament, since elections must be held within 60 days of a new constitution gaining approval in a national referendum. The movement very likely will secure a majority in the next parliament.

The judiciary, meanwhile, has two key constraints. First, it is divided between those friendly to the Brotherhood and those opposed to it. Second, it cannot enforce laws and rulings. For that, it must rely on a second power — the government or security forces.

But so far, the military has been content to let the power struggle between the judiciary and the Brotherhood play out without directly intervening. The reason for this is simple: Ultimately, the military and the Brotherhood need each other. While they might distrust each other and be uncomfortable working together, the military does not want to rule directly and the Brotherhood cannot afford tensions with Israel or the United States. Thus, the Brotherhood requires the restraint the military places on it, and the military requires the Brotherhood to rule and take the blame for the economy and other issues.  

Coming Developments

The next few weeks will be decisive. A number of events over the coming days will show just how far the Brotherhood could go to neutralize the judiciary. Morsi could ratify the newly approved constitution as early as Dec. 1, setting the stage for a national referendum, which must be held within two weeks. But on Dec. 2, the Supreme Court will hold a hearing on the legality of the Constituent Assembly. (It is unclear whether the court will issue a ruling that day.) Two days later, a Cairo administrative court will hold a hearing on the legality of Morsi's Nov. 22 declaration and could reverse it.

The role of the military will also be revealed, as will the political opposition's ability to sustain its unity and the protests. (The opposition's ability seems weak at this stage.) So far, neither Morsi nor the Brotherhood has ignored previous court rulings, but both the Brotherhood and the judiciary seem more resolute this time. If neither side backs down, there will be a constitutional crisis that could trigger the military's involvement.

This is why the current crisis could have longer-term consequences for the balance of power between the Brotherhood and the military. The constitution will codify the powers and rights of the executive, legislative, judiciary and military. By failing to intervene and letting the Brotherhood push forward with a constitution largely written by the movement, the military runs the risk of seeing all other power centers in the country eventually fall sway to the Brotherhood's control.

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