Deciding the Terms of Cairo’s Democratic Transition
Egyptians seeking to build a new future after the rule of Hosni Mubarak hope to draw on, as well as correct, the flaws in the country’s longstanding constitutional tradition. In the days since a military council took power from Mubarak, the country’s political opposition has been quick to articulate its demands in the language of dry legal texts and procedures.
The current constitution was first enacted in 1971 and amended several times in the years afterward, but its precursors date back to a century before. Egypt’s first constitutional effort came in 1882, when an assembly approved a basic law to govern its relationship with the cabinet. In 1923, when the country gained its independence from the British Empire, a second and more comprehensive document was written to combine, however uneasily, a parliamentary system with a monarchy.
When the 1923 constitution was scrapped in the wake of a 1952 military coup, Egypt’s legal scholars set to work designing a republican constitution based on liberal and democratic values. Their work was shelved in 1954, however, by the country’s new military rulers, who issued instead a series of documents to serve their own ideological and institutional needs. These new rules delivered the Egyptian polity into the hands of a one-party system in which all power rested with Gamal Abdel Nasser, Egypt’s president until his death in 1970.
In 1971, Egypt received a new constitution, which would prove to be a more complicated and long-lived document. When Anwar al-Sadat succeeded Nasser, he found himself with rivals in various institutions, such as in the sole political party and the security apparatus. At the same time, he looked to recalibrate the regime’s ideology, moving gently away from socialism and toward religion. Both problems, he realized, could be addressed with a new constitution. Sadat convened a large and remarkably diverse committee: feminists, Islamic legal scholars, liberals, socialists, nationalists, and representatives of the Christian church were all represented. On the whole, the group moved in the direction Sadat wanted: weakening the party, nominally strengthening legal institutions, and promising Egyptians a move away from the harshest aspects of Nasserist authoritarianism.
When Egypts opposition leaders began talking of revolution, they wanted not only to end the Mubarak presidency but also to sweep aside the 1971 constitution.
The result was a document that promised a little bit to everybody — but everything to the president. The constitution contained guarantees for individual freedoms, democratic procedures, and judicial independence. It made nods toward socialism and Islam. But for every commitment, there was also a trap door; for every liberty, there was a loophole that ultimately did little to rein in the power of the president or the country’s determined security apparatus.
Over the next four decades, Egypt’s presidents tinkered with the text. Sadat took further steps against socialism and made greater concessions to Islam; he dismantled the single-party system and replaced it with a nominally pluralistic political order in which the party of the president — today’s collapsing National Democratic Party — enjoyed a dominant role. For every step forward, there was a step back: after the single party that had controlled the press was disbanded, authority was handed, in 1980, to a new state press council.
Mubarak left the constitution alone for most of his presidency, arguing that Egypt needed stability rather than further ideological and institutional gyrations. But Egypt did change in some gradual ways, sometimes toward liberalism. Mubarak widened the limited party pluralism allowed by Sadat; he permitted an opposition press to grow in the 1980s and an independent press to flourish in the 2000s.
Yet the country’s political movement was far from linear. In the 1980s, the state’s reliance on harsh authoritarian tools gradually abated; yet in the 1990s, these repressive tools were resurrected and used not just against radical Islamists but also the far tamer Muslim Brotherhood.
But on the whole, beginning in the 1980s, some of constitution’s liberal elements began to come to life, largely led by Egypt’s judiciary. A new judicial law in 1984 gave Egypt’s civil and criminal judiciary more autonomy, and the State Council — a set of courts that have jurisdiction over cases in which a state body is a party — proved surprisingly friendly to ordinary citizens.
Most striking was the Supreme Constitutional Court, a structure originally designed to keep the rest of the judiciary in check. But as it gained an autonomous voice during the 1980s and 1990s, it actually began to enforce some of the rights and freedoms embedded in the Egyptian constitution. A set of court decisions on electoral laws, for example, forced a more open balloting process. By 2005, parliament had one-fifth of its seats controlled by the Muslim Brotherhood. Most of the other deputies were allied with the regime, but a looser party system made them more difficult to control.
In 2007, the Mubarak regime introduced a series of constitutional amendments that slammed shut most of the liberal openings in the 1971 constitution. The changes took elections away from full judicial supervision and placed them under the control of regime-dominated commissions; allowed multicandidate presidential elections on paper but sharply restricted viable candidacies in practice; constitutionally barred the Brotherhood from forming a political party; and took steps to insert formerly extraordinary emergency measures (such as the president’s ability to refer cases to military courts for swift and reliable convictions) into the constitutional text.
Nathan J. Brown
February 15, 2011
