On the Margins of the Constitution

Tamir Moustafa, author of one of the best monographs on contemporary constitutional law and the judiciary in Egypt, The Struggle for Constitutional Power, published a new paper this week about the current political landscape and the soon-to-begin constituent assembly: “Drafting Egypt’s Constitution: Can a New Legal Framework Revive a Flawed Transition?” It does a good job of synthesizing a year’s events in this confusing and often demoralizing political transition. Some takeaway points:

— The Supreme Council of the Armed Forces is effectively the last wing of the former regime, which took advantage of the events of January and February 2011 to eliminate its rivals (in particular a coterie of businessmen led by Gamal Mubarak that had threatened its public sector industries with nationalization. See the new article in MERIP about how this competition was less ideological than previously assumed.) However, those events and the last year of political growth remained far outside its control. Therefore, the transition process has been chaotic. The SCAF has made and broken multiple promises about the form and schedule of the transfer of power to civilian institutions. Even now, it has declared a constitution must be ready before a new president is elected — but the first round of elections is in merely two months. This doesn’t leave a lot of room for contemplation. The SCAF has done everything possible to create acrimony between political forces leading up to the constituent assembly. In particular, Deputy Prime Minister ʿAli Al-Selmi issued a treatise with “supra-constitutional principles” that implied the new civil government should not have an Islamic legal reference — but that it should also have limited control over the military and its budget.

— Liberals and Islamists alike have rejected any form of limitation on or principles for the composition of the new constitution. Moustafa points out that liberals will likely not fight enshrining Islamic law in the constitution once again in order to have unity with the Islamists against military power (although the conservative Salafis may make a stand tostrengthen the previous language). These political forces may preserve many other aspects of the former state, including the strong-Presidential parliamentary system and centralized form of interior administration, in the interest of simplifying the transition process.

— The problems of hammering down the jurisprudence of Islamic law aside, the most important process of making the new constitution may be limiting its dependent clauses. This challenges the constitutional history of Egypt itself. The old constitution guaranteed basic freedoms of speech, assembly, etc. but only “according to the law.” Those four words not only make any subsequent restriction possible — in burning theaters or for “public safety” — they cede the supreme authority of the constitution to the year-by-year whims of the legislator. I don’t think there is anything sacred about constitutions (even the U.S. Constitution, which is in sore need of revision for the 21st century), but a good constitution needs as little ambiguity as possible to successfully hold together contentious political forces. Moustafa also recommends far more precise and unqualified language in the constitution guaranteeing institutional autonomy for the judiciary and limiting the duration and powers of constitutional emergencies. If the newly elected deputies across the political spectrum can force this type of language past the SCAF it truly will be a historical change in the constitutional history of Egypt.

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About ericschewe

PhD, History. This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Unported License.
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