Morsi acts like a tyrant but wants to save democracy
The Egyptian president’s controversial decree is really a bid to wrest power from the army, writes.
IS DEMOCRACY in Egypt over before it started? Sceptics abroad and protesters in Egypt think so after President Mohamed Morsi’s unilateral decree that his decisions are not subject to judicial review by the nation’s constitutional court.
The fears are exaggerated – this is not the scene in the movie where the democratically elected Islamic leader reveals himself as a religious dictator.
President Morsi overreached in his decree and explained it poorly. Yet he did it in the service of preserving electoral democracy. And he has reportedly taken a first step to repair the damage: agreeing to limit the scale of the decree to ‘‘sovereign matters’’, such as protecting the assembly now writing Egypt’s constitution.
The concerns of Egyptian and foreign secularists are understandable.
Democracy means more than just elections. Those elected by the people must adhere to constitutional procedures, not take the fact of their election as a mandate to govern without restraint. When Mr Morsi said he would not be bound by the decisions of the constitutional court because ‘‘God and the people’’ had chosen him, he sounded disturbingly like a fascist dictator.
Yet, despite appearances, Mr Morsi’s decree does not represent the ‘‘one man, one vote, one time’’ scenario many consider inevitable when an Islamist party comes to power through democracy. One must consider the full context of Egypt’s tumultuous, ongoing revolution – and the highly questionable role of Egypt’s constitutional court.
Under president Hosni Mubarak, the constitutional court enjoyed a good reputation for moderating dictatorial rule. Critics contended that it was little more than a rubber stamp for the
If sovereignty lies anywhere in such a period of post-revolutionary uncertainty, it is with the collective body chosen to make the new ground rules.
If the constituent assembly declared that it could not be dissolved by the constitutional court, it would have a credible constitutional argument as well as a powerful political one.
Many constitutional experts would say that a constituent assembly can do anything it wants, so long as it does not violate fundamental human rights. Certainly it would be within the power of the assembly to abolish the court in a final, ratified constitution. It follows, then, that the assembly should be able to protect itself against a usurping court.
Mr Morsi would have been wiser to issue a limited decree announcing that the assembly would remain in force and in office even if the courts tried to dissolve it. By appearing instead to place himself above the law, however, he undercut the very democratic ideal to which he should have appealed.
Having now agreed to limit the scope of his decree, he should also clarify that he is not claiming any inherent authority for the presidency, but is simply affirming the principle that the constitutional court cannot dissolve the constituent assembly. This would send a signal to supporters of democracy in Egypt and abroad that he wants to uphold the democratic process.
Right now, Mr Morsi has substantially weakened his domestic legitimacy, generating for the first time violent protests against him. Internationally, things are worse: Coming on the heels of his public support for Hamas, Mr Morsi has made himself look like a dictator in the making. Democracy is not yet dead in Egypt. But he must do more to demonstrate that he still believes in the system that brought him to office.
Noah Feldman is a law professor at Harvard University.