This was originally published in foreignpolicy.com on February 10, 2011, and reprinted here with permission.
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?
While parts of the existing constitution are no doubt regressive, on the whole it is a surprisingly liberal document. Many of the fundamental freedoms that the pro-democracy movement wish to see enshrined in a new constitution are already present in the existing document. These include protections on the freedom of speech (article 47), freedom of the press (article 48), freedom of assembly (article 54), and freedom of association (article 55) among others. The constitution is also clear on the independence of the judiciary (articles 65 and 165), the independence of judges (article 166), and division of powers between the executive and the legislative branches. The state is subject to the law (article 65) and citizens are provided with guarantees to access their rights in a court of law (article 68).
These fundamental liberties, it should be remembered, gave opposition activists the legal tools to challenge the regime throughout the past three decades. When all other avenues of political activism were closed, it was the courts to which human rights lawyers, opposition parties, leftists, liberals, Islamists, and everyday citizens flocked to challenge the state. Egyptians frequently prevailed, at least when the stakes were low. But even in politically charged cases, political activists occasionally scored major victories against the state.
This is not to say that the constitution is a perfect document — far from it. Some of the most egregious problems with the constitution were introduced in the 2005 and 2007 constitutional amendments. Article 76, for example, restricts the nomination of candidates in presidential elections to parties that hold a minimum of 3 percent of the seats in the People’s Assembly and Shura Council. By definition, this narrows the playing field to the formal opposition parties, which are notoriously weak. Even the largest opposition party, the Wafd, currently holds only 6 of 508 seats in the current People’s Assembly, or slightly more than 1 percent. To make matters worse, article 76 of the constitution raises the bar further for subsequent elections, when nomination must be secured from 65 members of the People’s Assembly, 25 member members of the Shura Council, and 10 members of local councils in at least 14 governorates. In other words, article 76 makes it virtually impossible to have a meaningful presidential election.
Other articles that should be amended include article 78 (which sets no limit on successive terms for the Presidency), article 88 (which governs the supervision of elections), article 93 (which prevents the courts from invalidating membership to the People’s Assembly as a result of election irregularities), article 179 (which provides broad powers to a Socialist Public Prosecutor), and articles 112, 113, 136, 167, and 171 (which collectively weaken the People’s Assembly and the judiciary vis-a-vis the Executive Authority).
It was also recently announced that the Constitutional Amendments Committee, which was formed by presidential decree on Tuesday, agreed to amend six articles of the constitution, including article 76. After two weeks of mostly cosmetic changes, this announcement could be the first sign of meaningful concessions from the regime. But proof of concrete reforms must come in the details. To be sure, there are articles of the constitution that can and should be amended. But the pro-democracy movement must not lose sight of the fact that the current constitution already contains most of the liberties and protections that they currently seek.
And this points to a far more ugly and complicated reality: the legal conundrums that Egypt faces are far deeper than the constitution. The regime has spun out illiberal legislation for decades, making constitutional guarantees on fundamental rights ring hollow. Laws regulating the press, political parties, police powers, elections, trade unions, non-governmental organizations, and just about every other area of political and social life are designed to strengthen the hand of the executive. These are precisely the laws that political activists challenged in the courts over the past three decades, but the same dynamic always played out: When litigation succeeded in striking down legislation, the regime would simply use its rubber-stamp People’s Assembly to hammer through new legislation, often times more illiberal than the last iteration.
Even if the constitution is amended and Mubarak steps down, this web of illiberal legislation would remain on the books. It would provide the current regime with all of the same tools to manipulate elections and exert control over other areas of political life in very familiar ways. In other words, if the way forward is through the existing legal system, it will be rough going the whole way. It would be simple and straightforward if a new constitution was all that required to break from past political dynamics, but in some ways, the constitution is the least formidable obstacle to change.
Tamir Moustafa is Associate Professor of International Studies and Jarislowsky Chair in Religion and Cultural Change at Simon Fraser University. Prior to coming to SFU, Moustafa taught at the University of Wisconsin as well as Princeton University and U.C. Berkeley, where he held post-doctoral fellowships. His research stands at the intersection of comparative law and courts, religion and politics, and state-society relations, all with a regional focus on the Middle East. Moustafa’s current project explores the public debates that are generated as a result of dual constitutional commitments to Islamic law and liberal rights in Egypt and Malaysia. More on Tamir Moustafa. He blogs at A New Egypt Rising.