Advertisement

Springer Nature is making SARS-CoV-2 and COVID-19 research free. View research | View latest news | Sign up for updates

The Rule of Law and the New Egyptian Constitution

Abstract

This article explores meaning of the rule of law for Egypt after Mubarak. In Egypt, the process of writing and ratifying a new constitution was overseen first by Supreme Council of the Armed Forces (SCAF), then by the newly elected President Morsi and by SCAF again, when the army moved to depose Mr Morsi and the government of the Muslim Brotherhood party. The writing of the Egyptian constitution has undergone several iterations since 2011, each time slanted towards the interests of those in power. The successful implementation of the rule of law in any country must first be secured in the constitutional framework which should guarantee that everyone is equal before the law and that no person or group has a privileged status. Does the latest Egyptian constitution meet this most basic of criterion of the rule of law?

This is a preview of subscription content, log in to check access.

Notes

  1. 1.

    Taher (Winter 2013, pp. 25–36).

  2. 2.

    See Moustafa (2007).

  3. 3.

    Hirschl (2004, pp. 1819–1860).

  4. 4.

    Ibid (2004, p. 1825). See also Moustafa (2007). He claims that the Egyptian Regime established an independent constitutional court to address a series of economic and administrative issues. The court fulfilled its mandate to “institutionalise state functions and attract investment” but it also affirmed certain civil and political rights enabling challenges to the regime.

  5. 5.

    Choudhry (2013, p. 611).

  6. 6.

    Tschirgi et al. (2013, p. 2).

  7. 7.

    Fukuyama (1989); see also Fukuyama (1992).

  8. 8.

    Tamanaha (2004).

  9. 9.

    Aristotle, Tr. Sinclair (1962, pp. 142–145).

  10. 10.

    See note 9, p. 26.

  11. 11.

    Locke (1690, II, xi, para, p. 136).

  12. 12.

    Ibid.

  13. 13.

    Fuller (1964, p. 106).

  14. 14.

    Dicey (1960, p. 187).

  15. 15.

    See note 14, p. 198.

  16. 16.

    Ibid (1964, p. 42).

  17. 17.

    Ibid (1964, pp. 33–94).

  18. 18.

    Ibid.

  19. 19.

    See note 9, p. 3.

  20. 20.

    “We acknowledge that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger.” UN GA Resolution 05-48760, October 2005 World Summit.

  21. 21.

    Raz (1983, pp. 214–216).

  22. 22.

    Mohan, Holligan and Shiow Tsai in (Ed) Spitzkatz (2013, p. 15).

  23. 23.

    Ibid.

  24. 24.

    Ibid.

  25. 25.

    See note 9, p. 34.

  26. 26.

    Democracy and the rule of law are not necessarily compatible. They have come to form a cluster of ideals that are associated with liberal democracy. See Michael Rosenfeld (2001, p. 1307).

  27. 27.

    See note 9, p. 34.

  28. 28.

    Allan (2010, p. 4).

  29. 29.

    Quoted in Tamanaha (2004, p. 34).

  30. 30.

    Ibid (2004, p. 41).

  31. 31.

    Ibid.

  32. 32.

    Hayek (1960) For Hayek, limiting discretion by government officials was an important part of the rule of law since government actions have to be predictable.

  33. 33.

    Przeworski in (Eds) Maravall and Przeworski (2003, p. 114).

  34. 34.

    Ibid (2003, p. 117).

  35. 35.

    Weingast in (Eds) Heckman et al. (2010, p. 28).

  36. 36.

    Huntington (1993, pp. 22–49).

  37. 37.

    Arjomand (2013, p. 298).

  38. 38.

    Bayat quoted in Ibid (2013, p. 298).

  39. 39.

    The slogans on placards carried by the demonstrators in Tahir square were “Constitution First!” and “No principles above the constitution” Ibid (2013, p. 297).

  40. 40.

    See note 33.

  41. 41.

    See Clague et al. (1995, pp. 243–276), See also Knack and Keefer (1995 pp. 207–227).

  42. 42.

    See Santos’s examination of the connection between the rule of law and economic development. “The idea that the legal system is crucial for economic growth now forms part of the conventional wisdom of development theory” As a consequence effort and resources were put into encouraging the rule of law with the expectation that economic growth will follow. Santos finds that “By many compelling accounts these projects have been disappointing, failing to deliver the expected results.” in Trubek and Santos (2006, p. 253).

  43. 43.

    See the effort by the ‘World Justice Program’ (WJP), a 2007 initiative of the American Bar Association which publishes a Rule of Law Index where countries are rated in terms of 47 key indicators which relate to eight main themes. A country scores well on the WJP rule of law index if it can demonstrate that its legal system conforms to the standards of legality summarised by Lon Fuller, and also that the substantive law shows a commitment to human rights, especially the protection of property. WJP Rule of Law Index 2014 worldjusticeproject.org.

  44. 44.

    See note 34, p. 123.

  45. 45.

    “In countries with per capita income under $1,000, the probability that a democracy would die during a particular year was 0.6136, which implies that its expected life was about six years. Between $1,001 and $3,000, this probability was 0.0561, for an expected duration of about eighteen years. Between $3,001 and $6,055, the probability was 0.0216, which translates into about forty-six years of expected life.” Ibid (2003, pp. 114/115).

  46. 46.

    GDP per capita (current US $) World Bank http://data.worldbank.org/indicator/NY.GDP.PCAP.

  47. 47.

    Maravall and Prezeworski (Eds) (2003, p. 1).

  48. 48.

    Ibid.

  49. 49.

    Holmes in Maravall and Przeworski (2003, pp. 19–61).

  50. 50.

    Ibid (2003, p. 20).

  51. 51.

    Ibid (2003, p. 21).

  52. 52.

    Gilens and Page (April 2014 Report. http://www.princeton.edu).

  53. 53.

    The authors concluded “…that majorities of the American public actually have little influence over the policies our government adopts” and “that if policy making is dominated by powerful business organisations and a small number of affluent Americans, then America’s claims to being democratic are seriously threatened.” The study revealed that the majority of US citizens are powerless having a “statistically non-significant impact upon public policy.” Ibid (2014, p. 24).

  54. 54.

    See note 50, p. 22.

  55. 55.

    Ibid (2003, p. 32).

  56. 56.

    See note 48, p. 22.

  57. 57.

    See note 56, p. 47.

  58. 58.

    Ibid (2003, p. 49).

  59. 59.

    Ibid (2003, p. 23).

  60. 60.

    Ibid 40.

  61. 61.

    Waldron (2008, p. 60).

  62. 62.

    Lang (2013, p. 344).

  63. 63.

    Ibid 358.

  64. 64.

    Hashim (2011, p. 109).

  65. 65.

    Tschirgi et al. (2013, p. 5).

  66. 66.

    See note 65, p. 108.

  67. 67.

    See note 66, p. 4.

  68. 68.

    Human Rights Watch, “Egypt: Retry or Free 12,000 After Unfair Military Trials,” September 10, 2011 http://www.hrw.org/news/2011/09/10 quoted in Ibid p. 2.

  69. 69.

    Taher (2013, pp. 25–36).

  70. 70.

    See note 38, p. 304.

  71. 71.

    Azzam (2012, p. 4).

  72. 72.

    Ganzouri first served as prime minister of Egypt between 1996 and 1999. SCAF appointed him on 21 November 2011 to form a coalition government. He finally resigned in June 2012, when Mohammed Morsi was elected prime minister.

  73. 73.

    See note 38, p. 297.

  74. 74.

    Ibid p. 304.

  75. 75.

    Ibid p. 305.

  76. 76.

    See note 63, p. 359. The jurisdiction of the Egyptian State Council is over administrative disputes where the state is one of the parties. It has the power to strike down n government decisions.

  77. 77.

    For an in depth account and evaluation of the evolution of the Muslim Brotherhood, See Aly and Werner (1982), Harris (1964), Husaini (1956), Mitchell (1969).

  78. 78.

    Ibid 338.

  79. 79.

    See Anderson (1983).

  80. 80.

    A similar occurrence can be noted in Sri Lanka and other states in the Middle East.

  81. 81.

    Quoted in Aly and Werner (1964, p. 338).

  82. 82.

    It would be wrong to assume that the interests represented by the Islamist groups and the army are mutually exclusive. The assassination of Anwar Sadat in 1981 revealed the extent to which Islamist ideology had penetrated the army. Sadat’s assassins were officers of the army Colonel Abboud Zumur, Lieutenant Khalid al-Islambouli, Sergent Hussein Abbas and Islamists. See note 65, p. 108.

  83. 83.

    See note 65, p. 305.

  84. 84.

    See note 72, p. 4.

  85. 85.

    Sarah El Deeb “Morsi Power Grab: Egypt’s Top courts Protest President’s Decrees” The World Post http://www.huffingtonpost.com/2012/11/28.

  86. 86.

    See note 38, p. 297.

  87. 87.

    Ibid, p. 305.

  88. 88.

    47 % Muslim Brotherhood, 24 % Salafists’ al Nour party, the rest of the votes were shared by Liberal Wafd and Egyptian Bloc coalition. See note 72, p. 4.

  89. 89.

    “Egypt: President Morsi orders dissolved parliament back.” CBS News, 8 July 2012 http://www.cbsnews.com/8301-202_162-57468252/egypt-presidnet-morsi-orders-dissolved-parliament-back/.

  90. 90.

    See note 70, p. 27.

  91. 91.

    In effect this meant that all Constitutional Declarations, laws and decrees made by the president since he assumed office on 30 June 2012 were binding and could not be appealed until a new constitution was adopted. http://English.ahram.org.g/News/58947.aspx.

  92. 92.

    David D Kirkpatrick “Morsi Admits ‘Mistakes’ in Drafting Egypt’s Constitution” http://www.nytimes.com/2012/12/27/world/middleeast.

  93. 93.

    Dina Samak “Egyptian Journalists protest draft constitution”. http://english.ahram.org.eg/NewsContent/1/64/59761.

  94. 94.

    See note 70, p. 28.

  95. 95.

    See note 85.

  96. 96.

    Dutch MEP Marietje Schaake claimed that Morsi had ‘placed himself and all his decisions above the law’. Quoted in Pinfari (2013).

  97. 97.

    See note 38, p. 304.

  98. 98.

    N Youssef “Egypt’s draft constitution translated” http://www.egyptindependent.com/news 02/12/2012.

  99. 99.

    Ibid.

  100. 100.

    See note 70, p. 35. See also Armojand who claims that the vested interests of the army is protected mainly through “constitutional gaps”—that is, by omissions in the constitution on important matters concerning defence and security services.

  101. 101.

    See note 66, p. 1.

  102. 102.

    Tamarrod, a revolt movement, claimed that 22 million signatories demanded that either Mr Morsi resign or call early presidential elections.

  103. 103.

    Housden (2013, pp. 72–78, 73).

  104. 104.

    Ibid.

  105. 105.

    Pinfari (2013, pp. 460–466).

  106. 106.

    Ibid (2013, p. 465).

  107. 107.

    Full Text of the July 2013 Egyptian Constitutional Declaration (full Text Egyptian State Information Service) http://egyptianelections.carnegieendowment.org/2013/07/15fulltext.

  108. 108.

    Maggie Michael The international monitoring group claimed that there was a “clampdown on free speech ahead of the charter.” “Official: Egyptian voters have backed new charter.” http://news.yahoo.com/official-egyptian-voters-backed-charter-100856281.html.

  109. 109.

    N Brown ‘Egypt has Replaced a Single Dictator with a Slew of Dictatorial Institutions’ Op-Ed, The New Republic http://egyptelections.carnegiendowment.org/2014/01/28.

  110. 110.

    M Dunne “Egypt’s Evolving Governance is No ‘Democratic Transition”’ Op-Ed Washington Post http://egyptelections.carnegieendowment.org/2014/01/28.

  111. 111.

    See note 111.

  112. 112.

    S Williamson “A Preliminary Overview of Egypt’s 2014 Constitutional Referendum” http://egyptelections.carnegieendowment.org/2014/01/17.

  113. 113.

    See note 53. “… organised groups representing business interests have substantial independent impacts on US government policy, while mass-based interest groups and average citizens have little or no independent influence.” The statistical data of this study offers evidence for the theory that America is more of an oligarchy rather than a democracy.

References

  1. Allan, T.R.S. 2010. Constitutional justice: A liberal theory of the rule of law. Oxford Scholarship Online.

  2. Abd al-Monein Said Aly, and Manfred W. Werner. 1982. Modern Islamic reform movements: The Muslim Brotherhood in contemporary Egypt. The Middle East Journal 36(3): 336–361.

  3. Anderson, Benedict. 1983. Imagined communities: Reflections on the origin and spread of nationalism. London: Verso.

  4. Aristotle. 1962. The politics, Book111, Part 16 (trans: Sinclair, T.A.). London: Penguin Classics.

  5. Arjomand, Said Amir. 2013. The Islam and democracy debate after 2011. Constellations 20(2): 297–311.

  6. Azzam, Maha. 2012. Egypt’s military council and the transition to democracy. Chatham House Briefing Paper MENAP BP 2012/02.

  7. Choudhry, S. 2013. Constitutional transitions in the Middle East: Introduction. International Journal of Constitutional Law 11(3): 611–614.

  8. Clague, Christopher, Phillip Keefer, Stephen Knack, and Mancur Olsen. 1995. Property and contract rights in autocracies and democracies. Journal of Economic Growth 2: 243–276.

  9. Dicey, Albert Venn. 1960. Introduction to the study of the law of the constitution. London: Macmillan.

  10. Fukuyama, F. Summer 1989. The end of history. The National Interest. See also The End of History and the Last Man. USA: Free Press, 1992.

  11. Fuller, Lon L. 1964. The morality of law. New Haven: Yale University Press.

  12. Gilens, Martin, and Benjamin I. Page. 2014. Testing theories of American politics: Elites, interest groups, and average citizens. April 2014 Report. http://www.princeton.edu.

  13. Harris, C.P. 1964. Nationalism and revolution in Egypt. The Hague: Mouton Publishers.

  14. Hashim, A. Winter 2011. The Egyptian military, part two: From Mubarak onward. Middle East Policy 18(4):106–128.

  15. Hayek, F. 1960. The constitution of liberty, The Definitive Edition. In ed. Ronald Hamowy. Chicago: University of Chicago Press.

  16. Heckman, James J., Robert L. Nelson, and Lee Cabatingan (eds.). 2010. Global perspective on the rule of law. Oxon: Routledge.

  17. Housden, O. 2013. Egypt: Coup d’Etat or a revolution protected? The RUSI Journal 158(5): 72–78. doi:10.1080/03071847.2013.847727.

  18. Hirschl, R. 2004. Constitutional courts vs religious fundamentalism: Three middle eastern tales. Texas Law Review 82(7): 1819–1860.

  19. Huntington, S. 1993. The clash of civilisations? Foreign Affairs 72(3): 22–49.

  20. Husaini, I.M. 1956. The Moslem Brethren. Beirut: Khayats College bool.

  21. Knack, Stephen, and Philip Keefer. 1995. Institutions and economic performance: Cross-country tests using alternative institutional measures. Economics and Politics 7(3): 207–227.

  22. Lang, Anthony F. 2013. From revolutions to constitutions: the case of Egypt. International Affairs 89: 2.

  23. Locke, John. 1690. The second treatise of civil government. an essay concerning the true original extent, and end of civil government. Two treatises of Government. ed. Peter Laslett. Cambridge Texts in the History of Political Thought (1960).

  24. Maravall, Jose Maria, and Adam Prezeworski. 2003. Democracy and the rule of law. NY: CUP.

  25. Mitchell, R.P. 1969. The society of the Muslim Brothers. NY: OUP.

  26. Moustafa, Tamir. 2007. The struggle for constitutional power: Law, politics and economic development in Egypt. NY: CUP.

  27. Pinfari, M. 2013. The EU, Egypt and Morsi’s rise and fall: ‘Strategic patience’ and its discontents. Mediterranean Politics 18(3): 460–466. doi:10.1080/13629395.840441.

  28. Raz, Joseph. 1983. The authority of law: Essays on law and morality. UK: Clarendon Press.

  29. Rosenfeld, Michael. 2001. The rule of law and the legitimacy of constitutional democracy. Southern California Law Review 74: 1307.

  30. Spitzkatz, Marc. ed. 2013. Rule of law: Perspectives from Asia. Singapore: Konrad Adenauer Stiftung.

  31. Taher, Ahmed. Winter 2013. The new Egyptian constitution: An outcome of a complex political process. Insight Turkey 15(1):25–36.

  32. Tamanaha, Brian. 2004. On the rule of law history, politics and theory. NY: CUP.

  33. Tschirgi, D., W. Kazziha, and S.F. McMahon. 2013. Egypt’s Tahrir revolution. Boulder: Lynne Rienner Publishers.

  34. Trubek, David M., and Alvaro Santos. 2006. The new law and economic development. NY: CUP.

  35. Waldron, J. 2008. The concept and the rule of law. Georgia Law Review 43: 1.

Download references

Author information

Correspondence to Nirmala Pillay.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

Pillay, N. The Rule of Law and the New Egyptian Constitution. Liverpool Law Rev 35, 135–155 (2014). https://doi.org/10.1007/s10991-014-9156-1

Download citation

Keywords

  • Rule of law
  • Egypt
  • Democracy
  • Middle East