As Egypt struggled through a truly stunning transition of power this past week, discussion increasingly focused on the nation's Constitution. Yet when a constitution has been effectively suspended under Emergency Law for forty years, like Egypt’s has been, what power does it retain? The answer, we learned, is very, very little. The Constitution did not aid in transferring power (in fact, it was an impediment), it did not protect the Tahrir Square protesters (had there been fewer of them, they would have been rounded up and jailed, just as they had been in previous years), it did not prevent the military from finally unconstitutionally seizing control (it appears that this was the best of all outcomes, but the Constitution did not provide for it) and now that Hosni Mubarak is gone it has been cast aside, suspended by the Supreme Council of the Armed Forces which, lacking any authority but that provided by the barrel of a gun, dissolved the parliament and took full control of the process to consider amendments to the Constitution. Indeed, when the history of last week’s revolution is written – and this is what it was, a revolution, though a curiously non-partisan, leaderless one – the Constitution will be portrayed as at best a bystander; at worst, an agent of further tyranny.Ironically, much of the 1971 Egyptian Constitution reads like an emblem to liberal democracy. Many of the freedoms demanded by the protesters are “guaranteed” to them in the document. The Egyptian Constitution protects freedom of speech, of the press and of assembly and association. It protects the independence of the judiciary and divides power between parliament, the president, and the courts. But almost from the day that it was ratified, its words have read like hollow promises since they were violated by the state for so long, with impunity.
The situation reminds me of my time in Czechoslovakia in 1989 where I was one of the lucky reporters with close access to Vaclav Havel, the dissident writer who would later become the president of a new Czech state. “Our Constitution would be a great document,” he said, “if all you did was read the words, but a constitution is only as great as the respect its realizes from those in power.” Havel knew all too well. In a country that ostensibly provided constitutional guarantees to freedom of speech and association, he had spent years under house arrest and in jail for daring to challenge the brutal Czech communist regime.
There are, actually, two critical flaws to the Egyptian constitutional story and they are worth observing as they are fatal flaws. The first is the exaggerated willingness to subvert constitutional principles to the exigencies of an “emergency”; and the second could be described as “executive creep” or the gradual expansion of executive power at the expense of democracy.
The word “emergency” appears only one time in the document, in Article 48, when it reads, “in a state of emergency or in time of war a limited censorship may be imposed on the newspapers, publications and mass media in matters related to public safety for purposes of national security.” Many countries have such emergency provisions so as to maintain order in times of crisis (while not referencing an “emergency,” per se, the American Constitution allows for the suspension of habeas corpus during “rebellion” or “invasion”). But in fact, Egypt’s Emergency Law, which was written in 1958, and was first used during the Arab-Israeli Six Day War of 1967, has been essentially in effect for forty-three years. The order was lifted only once, for eighteen months, by Mubarak’s predecessor, Anwar Sadat, and was then reinstated after Sadat was assassinated in 1981.
The lifting of the state of emergency was one of the demands that the protesters, and President Obama, made throughout Egypt’s crisis. It has still not been met and it is unclear when it will be met, one of a series of difficult questions that face the new Egypt. Under what process will the new military high command rule the country? Will the people accept the military as legitimate rulers during this period of transition? Finally, just how involved should the military command be in creating a new civilian government?
In the end, there may not have been a choice for the ruling military council. For all his breaching of the law, Mubarak couched arguments for his continued leadership around constitutional fidelity. Yet through constitutional reforms he himself had pushed through, Mubarak had accumulated so much power around himself and his party, the Constitution did not allow for the delegation of authority to a vice president and it had no provision for the introduction of constitutional reforms or the dissolution of parliament unless such reforms were initiated by the president himself. Ironically, then, with his forced departure and the seizing of control by the military, the only way that the country could have continued to be run faithful to the old Constitution would have been if new elections immediately installed a new parliament and a new president who could initiate those reforms. And yet, if that had been allowed to happen, those elections would have to have been conducted on terms once again highly favorable to the dominant National Democratic Party that Mubarak led. A vicious circle, to say the least.
The situation that Egypt finds itself in now is this: to maintain stability and the rule of law, the Constitution needs to be restored as soon as possible. Yet it must first go through a reform process that will not be easy to administer since there is no agreed upon method for doing it. The process of reform may throw Egypt into a period of gross instability and debate, not necessarily a bad thing for a country that needs to find itself, but as Thomas Friedman pointed out this past weekend, it could well turn the revolution’s strength into its weakness. No one party or political philosophy led the charge in Tahrir Square. This was truly a revolution of equals. Yet now that it has toppled a dictator it has no leader to turn to, and no consensus on how to proceed.
With Mubarak in Sharm-el-Sheikh and a sympathetic military in control, you can almost hear Egypt’s sigh of relief. But big challenges await.
TB
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