Obviously, Egypt’s version of the Constitutional Convention is not going as smoothly as everyone might have hoped. The plan was for a Constituent Assembly comprised of Islamists, Christians, and secular deputies to draft and vote on a consensus constitution sometime next January. Things haven’t worked out that way. Greatly outnumbered from the start, the Christians and secular deputies have all resigned in frustration. And, rather than wait till next year, the Assembly has just finished rushing though all 230 provisions of the constitution in a marathon, 16-hour session. The Assembly will present the document to President Morsi tomorrow, and he will then submit it to a national referendum. Why the rush? The Assembly and Morsi want to accomplish all this before the Supreme Constitutional Court has a chance to rule, perhaps as early as Sunday, on the legality of the constitution-drafting process. Meanwhile, pro- and anti-Morsi demonstrators are facing off on the streets of Egyptian cities. It all looks very unstable.
Given our own experience, observers in the US may see the struggle between Morsi and the SCC in terms of the rule of law: Morsi is just another strongman trying to stare down an independent judiciary. That’s true as far as it goes, but there’s an added issue people may miss. Article 2 of the draft constitution declares that Sharia is the principal source of legislation in Egypt. This is nothing new; the Mubarak-era constitution contained the same provision. Traditionally, the SCC has had authority to determine whether Egyptian laws comply with Sharia principles and, traditionally, it has adopted a flexible, non-fundamentalist approach to the question. In staring down the SCC now, Morsi and his allies in the Assembly may be laying down a marker for future conflicts with the SCC over Islamic law. The message seems to be this: power dynamics in Egypt have changed fundamentally, and the SCC had better get in line.