Blog of the International Journal of Constitutional Law

What is legality worth in an Egyptian transition?: Some initial thoughts.

In some earlier posts I have described what appears to be a paradoxical state of affairs in Egypt: Given recent amendments to the Constitution, trying to oust the NDP regime in a formally constitutional manner will delay Mubarak’s formal retirement as head of state for a considerable period and might require significant concessions to current NDP elites. Nevertheless, some leading Egyptians with impeccable credentials as liberals, democrats and opponents of the regime have acted as if a legal transition is preferable to an extra-legal one. How can we understand this? Don’t the supporters of legality realize there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb? Don’t they see that negotiating with regime elites to ensure that they follow all the steps necessary legally to dislodge themselves may have unpleasant ongoing consequences? For example, showing that you actually care about legality may give that elite leverage to negotiate ongoing immunities or influence.

In fact, the leading Egyptian figures are not crazy to think that legality has some real value for liberal democrats in the current Egyptian transition—though of course there is room to debate exactly how much value it has. The adoption of the current constitution represented a symbolic step towards the rule of law in Egypt. Dismantling it would represent, in some ways, a symbolic step away. In the Egyptian context, taking such a symbolic step away from the rule of law may have some unquantifiable, but real, costs, and one can understand why some Egyptians feel establishing the rule of law is, under some circumstances, worth paying for. Let me explain:

The current Egyptian constitution was enacted in 1971. It was officially named “the Permanent Constitution.” Its ratification was supposed symbolically to represent the end the era of “revolutionary” constitutions that were issued with dreary regularity during the Nasser era. These constitutions could be changed by executive (i.e. army) fiat and were. Nathan Brown in his wonderful book Constitutions in a Non-Constitutional World has described how authoritarian regimes in the Arab world often drafted constitutions for non-liberal purposes, but in this and other works he has also discussed the process by which states with such constitutions have built up a cultures of thin (sometimes very thin) legality that have the ability to evolve into more robustly constitutionalist regimes (i.e., ones that respect not only legality, but democracy and liberal values as well.) A considerable amount of scholarship not just by Brown, but by others as well, has illustrated directly or indirectly, that Egypt has followed this pattern. Works by Tamir Moustafa, Bruce Rutherford, James Rosberg and me have suggested that the Egyptian government and people, even the mainstream Islamist opposition, have fallen into the habit of following the formal dictates of their (often illiberal) laws.

While most have seen this glass as 4/5th empty, we forget that it is 1/5 full. The Egyptian executive since 1971 has in interesting ways acted largely within the range of (admittedly enormous) powers formally granted by the Constitution. When the Constitution constrained presidents too much, they generally did use the relatively cumbersome process that was required to amend the Constitution. When judicial institutions held that the law prevented presidents from doing something they wanted to do, they usually used legal procedures available to them to interfere. Or they made a point to follow legal procedures to change the law. Many observers today focus on the fact that the courts have not been enforcing (and the government has not been obeying) a substantively liberal body of law. But we might be wrong to draw from this conclusion that the courts and the culture of legality is valueless.

Courts and a culture of legality are a form of dual-use technology: what can be used for bad can be used for good. The executive had too much power and the executive could (and did) establish a rule by law that oppressed the people. It did so, however, in a way that allowed people to see how an effective liberal legal system might work. Legal argumentation was permitted, within certain bounds. Litigation was even, on occasion, effective at ameliorating the lives of the people (even if that only meant forcing the government to develop a slightly different, formally legal mode of achieving an oppressive result). In the process, a surprisingly robust interest in law seems to have evolved among the Egyptian populace, including among Islamists.

Given the concerns that are often voiced about the possible rise of the Muslim Brotherhood in a democratic Egypt and about the impact that the Muslim Brotherhood would have on the rule of law, one does need to stress that leading Islamist groups have regularly chosen to contest government policies within the confines of the law—expending considerable time, effort and political capital not in the service of violence, but rather to litigate and agitate, within the letter of the law, for political reform. In the process, Islamists, like other Egyptians, have grown comfortable with judicial institutions, and apparently have come to respect them for their professionalism.

The commitment to contesting the government within legal limits might seem surprising, given the limited results that can be achieved. This commitment is impressive, and it should not be disregarded lightly. The impulse to preserve the respect for legality should be particularly strong among those who wish to expand the legal restraints to which the government is subject in the future. Ultimately, it is much easier to thicken the thin rule of law than it is to create a thick rule of law from scratch.

There is a second, more pragmatic and arguably cynical argument in favor of respecting legality: The price of legal transition is negotiation and compromise with the NDP. It is certainly distasteful to pay this price and it may limit to some extent the flexibility of the new government going forward. At the same time, negotiating as required by the Constitution may in a very real sense buy not just legality, but also peace and stability. The NDP’s power base is ultimately the armed forces, including the powerful intelligence services. The armed forces are themselves not homogenous. The different factions within the armed forces need time to decide what they want and what they can live with—a decision that can and should be made on the understanding that the answers they reach may determine the amount of foreign military aid that they get to play with. Allowing leaders of the NDP to negotiate the terms of their exit is, effectively, negotiating with the army the terms of their returning to the barracks and supporting (or at least not undermining) an incoming regime. This is a smart negotiation in which to engage. Whatever happens over the next few weeks, Egypt still faces severe economic and political challenges. To deal with them, a government will need all the good will and support it can get from all quarters. Neither the Egyptians nor their many well-wishers and friends should want the result of this uprising to be a country in which a huge and powerful army has unwillingly been pushed aside, mistrusts the fledgling democratic regime and actively works behind the scenes at cross purposes with political leaders. Surely, one Pakistan is enough.

In short, then, there are both idealistic and realpolitik-y reasons to try and preserve legality. For those reasons, if the Constitution “must go,” then, all things being equal, it would be better to see it go on its own terms. Indeed, one might even be willing to pay some price to achieve legality in one’s transition. Up to a point, a reasonable person might be willing, in exchange for legality, to slow the process of transition, and also to allow members of the current regime to extract some concessions for their “retirement” from politics. Up to a point . . .

No one believes that the value of legality is limitless. The process of transition must not be too slow, and the concessions demanded by the outgoing Egyptian regime elites must not be too high. Regime elites have craftily drafted a constitution that gives them more power over their departure than most people think fair. They should be grateful that people are willing to negotiate under these circumstances. And they should be encouraged to negotiate in good faith quickly to “close the deal” that will allow a more democratic and liberal Egypt to emerge. It is in their best interest. If there is delay or further violence, the value of legality relative to quick change may diminish in the eyes both of their frustrated people and of the international community and with it the leverage of the current elites.


One response to “What is legality worth in an Egyptian transition?: Some initial thoughts.”

  1. Miguel Schor Avatar

    These are great posts. By the way, Chile underwent a somewhat analogous transition and democratic actors have slowly chipped away at the authoritarian constitution they inherited from Pinochet. It is a nice question when it makes sense to throw out the old rules regardless of legality (as was the case with our Constitution) and when it makes sense to compromise with the old regime. My sense is that in countries seeking to establish what we might call the rule of law, it might well make sense to compromise particularly since the old regime has not been forced into exile or otherwise defeated.

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