Feldman: Rushed constitutional changes may finish democracy in Egypt

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Photo credit: AP | Egyptian protesters attend an opposition rally in Tahrir Square in Cairo, Egypt. 

Egypt's constitutional crisis is getting graver by the hour.

Faced with major protests to President Mohamed Morsi's decree placing himself above the law, the Muslim Brotherhood party is today trying to cram a draft constitution through the constitutional assembly in a single marathon session. A shotgun constitution is a terrible way to produce popular legitimacy and effective democracy.

Morsi's actions didn't come out of nowhere. Fearing that the nation's pro-army constitutional court would dissolve the assembly writing the new document, he issued a decree last week that put his actions above judicial review. This overreach smacked of dictatorship, and hundreds of thousands of protesters filled Cairo's Tahrir Square to object. A little-noticed feature of the decree, however, states that Morsi's special powers would expire when the new constitution was ratified.

Now, by getting the constitution in place fast, Morsi and the Brotherhood hope to show the protesters and the world that they don't seek to subvert democracy but to sustain it. Once the draft is approved, they say, it can be submitted to a public referendum, and Morsi's new powers will immediately sunset. In essence, they are telling their opponents that if they don't like the presidential decree, they can end it by voting for the constitution.

At the same time, the fast drafting is also meant to send a message to the constitutional court, which is expected to rule this weekend on whether to dissolve the assembly. Morsi and the Muslim Brotherhood are daring the court to invalidate a body that has already done its work and produced its draft.

No Deliberation Although Morsi's approach has potential strategic benefits for him, it is terrible for Egypt. Constitutional drafting must allow for deliberation if the resulting document is to have legitimacy with the public. The draft now being pushed through the assembly, provision by provision, has been created almost solely by the Muslim Brotherhood. And many of the secular members of the assembly have walked out in protest of the Brotherhood's domination of the group.

Truth be told, the draft is not much more focused on Islam than was the 1971 constitution that fell victim to the Arab Spring revolution -- that original constitution already called Shariah the principal source of law. But there are still valid objections to provisions that call for indeterminate special status for women and for a strong security cabinet headed by the president.

These concerns could probably be resolved, given time for debate. Discussion would in turn produce buy-in from at least some skeptics. The public would also have a chance to learn about salient issues and disagreements on the draft, which would allow people to cast informed ballots in the ratification referendum, which is supposed to occur within 15 days of passage.

Such debate would admittedly be made more difficult by the withdrawal of the assembly's secularists. They made a major mistake by walking away, just as Iraq's Sunnis did when they boycotted their constitutional process. The secularists haven't resigned, and so it's possible that they could be induced to engage again -- as secularists have in the comparatively smoother constitutional process unfolding now in Tunisia. That, of course, requires slowing things down immediately.

What's more, rapid assembly approval makes this proposal look a lot like the constitution that the army itself pushed through last year, which was produced largely in private, never subjected to meaningful deliberation, and ratified by an uninformed public that presumably thought any change from the old ways must be good. More should be expected from an assembly that was democratically chosen.

Brotherhood Bullying In practical terms, speeding up the constitution is unlikely to calm the anti-Morsi protests. Many angry Egyptians are skeptical of the Muslim Brotherhood's commitment to democracy. It seems unlikely that their concerns will be assuaged by a constitutional process conducted under Brotherhood bullying.

Morsi should take a deep breath and ask the constitutional assembly to pause. If he doesn't, and the assembly finishes its drafting work, then tighten your seat belts. Secularists plan an enormous protest tomorrow in Tahrir Square. The Brotherhood is calling for its own million-man protest the next day in the same place. And the court may well rule on dissolving the constitutional assembly the day after that. Democracy in the Arab world's most influential nation hangs in the balance.

Noah Feldman, a law professor at Harvard University, is a Bloomberg View columnist.