As the fundamental document establishing a framework for governance, the new Egyptian constitution will have a lasting effect on the country’s law, politics, and society for years to come. However, Egypt’s transition is shaping up to be a case study in how not to initiate a constitution-writing process, writes Tamir Moustafa, author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt.
If Egypt is to emerge with a stable constitutional order that protects basic rights, it will be in spite of the mismanaged transition dictated by the ruling Supreme Council of the Armed Forces (SCAF), he contends in the first contribution to a new series from the Brookings Doha Center-Stanford Project on Arab Transitions.
Acting in a unilateral and opaque manner, SCAF has continually changed the rules of political transition to suit its own evolving interests. Having proposed a series of amendments to Egypt’s 1971 constitution, in which the public’s only input was a simple up-down vote, SCAF overrode the national referendum with its Constitutional Declaration of March 2011. It then attempted to impose guidelines for the drafting of the constitution that would preserve its interests – through the infamous “Selmi document” – before bowing to popular pressure. The framework guiding the constitution drafting process remains mired in uncertainty a full year after the fall of President Hosni Mubarak.
These shortcomings now threaten to engender substantive weaknesses in the new constitutional text itself. The Constituent Assembly should therefore work to strengthen the procedural legitimacy of the document by fostering meaningful engagement with Egypt’s various political trends.
This paper identifies the most important issues to be tackled by the Constituent Assembly and offers the following recommendations for addressing them:
Islamic law and liberal rights: Article two of the previous constitution, declaring Islamic jurisprudence to be the principle source of legislation, will likely remain unchanged. Given the wide range of interpretations of this clause, liberals should push for robust constitutional guarantees protecting liberal rights and equality of citizenship. Language that guarantees “special rights” for different religious communities should be avoided as such wording tends to strengthen religious institutions at the expense of women’s rights in particular.
Institutions of governance: Given a widespread preference for a presidential or mixed system, the focus should be on how to reduce the powers of the presidency to guard against the emergence of another unconstrained executive. These efforts should include measures to curb the President’s unilateral powers of appointment.
Fundamental rights: The new constitution must detail fundamental rights – many of them already present in the 1971 Constitution – while avoiding qualifying phrases such as “according to the law” and “as provided by the law.” Fundamental rights guarantees should detail the specific conditions under which those rights can be curbed.
The state of emergency: The new constitution should better specify the conditions under which a state of emergency can be declared. Further, it should set a maximum term for which the state of emergency can last, and should limit its application to the parts of the country that are affected.
Judicial independence: It is critical that the new constitution outline specific safeguards for preserving judicial independence. It should detail mechanisms for judicial appointments, administration, discipline, and budgets rather than leaving them to be specified in enabling legislation. Proposals already drafted by Egyptian jurists should be examined by the Constituent Assembly and the public at large.
Human rights mechanisms: A number of options concerning the enforcement of human rights should be considered for the new constitution. These include providing rights organizations direct standing with the Supreme Constitutional Court; explicitly recognizing the state’s commitments to international law; and empowering an independent human rights commission. The international community must recognize the importance of allowing Egypt’s constitution to emerge organically. The most important role for the United States and the EU at this stage is to voice clear expectations, both publicly and through back channels, that SCAF must not seek to entrench a role for itself in domestic governance.
With constitution drafting yet to begin in Libya and the possibility of further transitions in Syria, Yemen, and elsewhere in the region, policymakers should study the Egyptian case as a cautionary tale of how not to initiate a constitution writing process.
Dr. Tamir Moustafa of Simon Fraser University in Canada and author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt.
This is the first paper in a new series from the Brookings Doha Center-Stanford Project on Arab Transitions. A forthcoming paper in the series will be authored by Ellen Lust from Yale University on the topic of electoral processes during democratic transition, drawing on recent experiences in Egypt and Tunisia.
For more information on The Project on Arab Transitions and the BDC-Stanford collaboration, please click here