The Rule of Law in Egypt: Prospects and Challenges

Tamir Moustafa, The Rule of Law in Egypt: Prospects and Challenges

This is report was commissioned by the Hague Institute for the Internationalisation of Law (HiiL).  Written in December, 2011, the paper provides a snapshot of Egypt's uncertain transition some ten months after the fall of Husni Mubarak's regime. 

Law in the Egyptian Revolt

Beginning on January 25, 2011, Egyptians went to the streets in the millions to claim their rights. After 18 days of popular mobilization, Husni Mubarak’s three decades in power were brought to an abrupt end. What was notable about this popular revolt was not simply the fact that the Egyptian public overcame the formidable defenses of a deeply entrenched regime, but also the character of this popular mobilization—namely, the extent to which law and legal institutions were, and still remain, on the front lines of political struggle. From day one of the protests, a new Constitution was front and centre in political debates, not simply among political elites, but also among “everyday Egyptians.” A new Constitution that would protect political rights and freedoms was one of the primary demands in the early days of the revolt, and it remains a central objective of political activists months after Mubarak’s departure.

It's not a Revolution yet

By Tamir Moustafa Reposted from ForeignPolicy.com

Although commentators have been quick to call the January 25th movement a "revolution," democracy activists are painfully aware that their struggle has only just begun. What will make the movement a true revolution, and not merely a successful rebellion against Mubarak, are institutional reforms that fundamentally reorder political life. Constitutional amendments are the critical first step to empowering representative institutions and constraining the arbitrary exercise of power. Not coincidentally, constitutional amendments also provide the key test of the military's willingness to break from the past.

In this context, the highly anticipated amendments to the Egyptian Constitution were unveiled by the Constitutional Reform Committee this past Saturday. The Committee, which had been appointed by the Supreme Council of the Armed Forces in mid-February, was charged with proposing constitutional amendments within 10 days. After soliciting public feedback, the finalized amendments will be voted on in a national referendum in two months time.

Now that the committee has released its work, Egyptians and foreign analysts will be asking whether the proposed amendments are meaningful, and whether they constitute a fundamental break from the past. My own view is that the proposed amendments, by themselves, do not yet constitute a fundamental break from the past, but they do open a viable path to further political reform.

Amending the Egyptian Constitution: Six critical articles that test the military’s commitment to democracy

By Tamir Moustafa Reposted from HuffingtonPost.com

The most important announcement last week from the Egyptian Supreme Council of the Armed Forces was that it had appointed a committee to amend the Egyptian Constitution. The committee, chaired by retired judge Tariq al-Bishri, was tasked to draft constitutional amendments within 10 days, followed by a national referendum on the proposed amendments within two months.

Many in the pro-democracy movement have criticized the scope, timeline, and composition of the constitutional reform committee. Their concerns are understandable. Although al-Bishri is a towering intellectual figure and prominent jurist known for his outspoken criticism of the regime, the rest of the committee is far less notable. More importantly, the military has clearly excluded representation from those groups that organized the January 25th democracy movement and indeed from almost all political trends, not to mention the fact that there is not a single woman appointed to the committee.

Pro-democracy activists are justifiably concerned that piecemeal changes in the form of constitutional amendments will be insufficient to engineer a fundamental reordering of the political system. Long-time human rights advocate Bahieddin Hassan echoes the apprehension of many others when he argues that, “What is needed now is to scrap the existing constitution and not to amend it. No amendments, however extensive, would be enough to salvage it because the philosophy and spirit of the constitution are diametrically opposed to democratic values and human rights. The present constitution can only encourage despotism.”

But as I argued in a previous post, the suspended constitution contains a curious mix of liberal and illiberal articles. Of the 211 articles in the Egyptian constitution, perhaps only a dozen are fundamentally illiberal, and these are easily identified. Moreover, many of the political liberties that the democracy movement want to see enshrined in a new constitution are already present in the suspended constitution. The more intractable legal conundrum facing Egypt is that most of the legal tools that the Mubarak regime used to dominate the political system are not found in the constitution. They are instead contained in the web of illiberal legislation that governs virtually all aspects of political and social life.

Anti-Authoritarian Revolution and Law Reform in Egypt: A Jadaliyya E-Roundtable

An E-Roundtable with Hussein Agrama, Asli Bali, Samera Esmeir, and Tamir Moustafa Reposted from Jadaliyya.com

Since the Mubarak presidency ended on February 11, 2011, the debate has shifted from how—or if—to amend the existing Egyptian constitution to how to replace/rewrite it. What, in your opinion, are the consequences of the suspension of the constitution to consolidating the gains and advancing the protesters’ aspirations for a post-authoritarian political order in Egypt?

TAMIR MOUSTAFA: Replacing the constitution was one of the central demands of pro-democracy activists. On the one hand, this suspension facilitates political reforms outside of the narrow procedures that were set out in the constitution. But this route forward also places the military outside of any legal framework. Amendments to the constitution are dependent on the military’s good will – something that we cannot take for granted. And even if Egypt proceeds towards free and fair elections, the military’s direct entry into political life will likely haunt the Egyptian political system for years to come. A similar tension between political expediency and democratic representation casts a shadow on the constitutional reform committee that was established by the Supreme Council of the Armed Forces. This committee is staffed mostly by jurists with legal expertise, but makes almost no attempt to represent various political trends. This is obviously objectionable from the standpoint of democratic representation, and it clearly undermines the legitimacy of the process. The only potential benefit of this route forward is the possibility that amendments to the constitution can be adopted more swiftly than they would if the whole constitution were rewritten. But meaningful amendments are dependent on the military’s willingness to make a genuine break from the past – and this is anything but certain at this point.

The world must keep its eyes on Egypt

By Tamir Moustafa Reposted from theGlobeandMail.com

After 18 days of unprecedented popular protest, a pro-democracy movement managed to displace a dictator of three decades. This is the story celebrated around the world in the international media. But the real transition – whether Egypt will become a democracy or will merely see the emergence of a reconfigured authoritarian regime – will be played out over the weeks and months to come. Although it is impossible to predict how events may unfold, there are three paths forward: direct military rule, military rule with a civilian face or a constrained democracy.

Does Egypt Need a New Constitution?

Does Egypt Need a New Constitution? | The Middle East Channel
By Tamir Moustafa Reposted from ForeignPolicy.com

As street protests in Egypt enter their third week, we hear frequent calls for a new Egyptian constitution. The April 6th Youth movement reiterated its demand that Mubarak step down from power immediately and that a transitional coalition government lead a process of transition, including the drafting of a new constitution. Similarly, a statement from the Faculty of Law at Cairo University calls on Mubarak to "comply with the will of the nation," and, among other actions, to draft a new constitution. Political parties, civil society organizations, and activists of all stripes have voiced the same call, both before January 25 and after. But will a new constitution provide the fundamental break from 30 years of authoritarian rule that Egyptians are calling for? Does Egypt need a new constitution?

Historical Context and US Policy So Far

Marty Moss-Coane of National Public Radio hosted a discussion of the protests in Egypt on her Radio Times program in Philadelphia today. Listen for some insights into the historical context of some of Egypt's latest turns, and commentary on US policy over the past week.

Will the West Stand Up for What's Right in Egypt?

Will the West Stand Up for What's Right in Egypt?
By Tamir Moustafa Reposted from The Mark News

The events of the past six days in Egypt are unprecedented. After 30 years of authoritarian rule under President Hosni Mubarak, Egyptians have taken to the streets to confront his regime. This moment poses a critical test for the Harper and Obama administrations. Stated support for democracy and human rights must be backed by an immediate call for Mubarak to step down and give way to free and fair elections.

Hundreds of Academics Sign Open Letter to President Obama in Support of the Egyptian People

Over the past few days, hundreds of political scientists, historians, and researchers in related fields who have studied the Middle East and U.S. foreign policy have signed an open letter to President Obama. This letter in support of the Egyptian people urges the government to move beyond rhetoric to support the democratic movement sweeping over Egypt.

See the letter here on Jadaliyya.