Al-Sadāt’s “Permanent constitution”
This constitution was ambivalent. For on the one hand it reinforced presiden-tialism, while on the other it entrenched the principles of constitutionalism and the rule of law. So, for example, while the menu of constitutional freedoms was
Democracy in Islam and Western democracy 113 extensive, the executive was given broad powers to resort to emergency measures that could restrict the exercise of those freedoms.
The socialist ideology was preserved. On the other hand, as Brown observes, “not only was private ownership protected, but sequestration, nationalization, and confiscation could take place only by law and through the judicial process” (ibid., 81).
Even the judicial system turned out to be a hybrid creature. In fact, the drafting process in 1971 pitted constitutionalist and antiliberal forces against each other:
Drafters also were forced to consider the newly established Supreme Council of Judicial Organizations. This body, headed by the president, had replaced the exclusively judicial Supreme Judicial Council, and oversaw hiring, assignment, and promotion of judges. Liberals lost a battle when the Supreme Council of Judicial Organizations was given a constitutional basis. (Ibid., 83)
On the other hand, “liberals [...] successfully argued against the abolition of Egypt’s administrative courts; the establishment of this system in the 1940s was regarded as strengthening the ability of Egyptian citizens to contest adverse administrative actions” (ibid.).
Finally, and importantly, there is the question of the Supreme Court created in 1969, “a presidential-dominated body that seemed to guarantee executive oversight of the entire judicial system. The 1971 constitution transformed this new structure into the Supreme Constitutional Court but left all weighty matters concerning appointment and jurisdiction to legislation” (ibid.). And when “the Supreme Constitutional Court” was “finally created in 1979,” it “quickly emerged not as an instrument of executive domination but one of the strongest institutional advocates for constitutionalist values in Arab history” (Brown 2002, 83). In this regard, Brown highlights the role the Court played in the 1980s in its effort to uphold the rule of law and keep executive power in check:
In the 1980s the Court issued a series of judgments that established it as the boldest judicial actor in restricting executive action even in cases with significant political aspects. Perhaps the two cases which involved the greatest public notice involved challenges to Egypt’s electoral laws. In 1987, the Court ruled that the 1983 law governing the 1984 parliamentary elections unconstitutionally restricted the right of citizens to elect their representatives. The law, which provided for proportional representation, prevented independents from running for parliament. (Brown 1997, 104)
1
On the establishment and significance of Egypt’s Supreme Constitutional Court, see Moustafa 2007, 57ff., and Brown 1997, 102ff.
The boldness of the Court was also illustrated in a 1985 decision regarding Egypt’s law of personal status. In 1979, President Sadat had decreed changes in the law, strengthening the position of women in divorce and custody cases. The Court ruled that the president had exceeded his authority by doing so. The government argued that the dire need for updating the personal status law and the paralysis of the legislature in considering changes constituted by themselves an emergency situation allowing the president, under article 147 of the 1971 constitution, to issue a decree-law. The Court rejected this reasoning, and ruled that the desire to amend existing legislation was not sufficient to invoke article 147. (Ibid., 105)4
Finally, in 1980 some amendments were made to the Egyptian constitution that can be placed into three buckets: the first I am calling “ideological,”
4 In considerable detail, Brown (1997) also reconstructs the controversial developments the Egyptian judicial system went through since the 1920s, as well as the persistent efforts the executive power made to exercise control over it.
After “Great Britain unilaterally declared Egypt independent in 1922“ (ibid., 40), a process got underway to centralize the judicial system. This led to the 1937 abolition of capitulations (enabling Great Britain to try its own subjects in Egypt under its own law), and then, in 1949, to the abolition of the mixed courts (each chaired by a foreign judge and made up of foreign as well as Egyptian judges), whose jurisdiction was transferred to the national courts.
The push to centralize the judicial system was carried even further in the wake of the 1952 coup d’etat that made Egypt into a republic. Thus in 1956 came the abolition of the shari'a and Milli courts: the latter had jurisdiction over non-Muslim religious communities, and both were viewed as encroaching on governmental authority. Furthermore, special courts were set up to try political cases: this is the route the regime took rather than attempting to impose its own authority over regular courts. And so it was that in 1954 “Mahakim al-Sha'b (People’s Courts) were established to suppress the Muslim Brotherhood in the wake of an unsuccessful assassination attempt on Abd al-Nasir” (ibid., 80).
After enactment of the 1971 constitution and during the presidency of Anwar al-Sadat, special courts were introduced—like the Socialist Public Prosecutor, the Court of Ethics (Mahkamat al-Qjyam), and the Parties Court—that “unlike the exceptional courts of the mid-1950s, were constructed with the participation of the regular judiciary” (ibid., 95). Still, despite the creation of these exceptional courts, measures were introduced that “would have had the effects of turning the vague assurances of the 1971 constitution into concrete realities” (ibid.): this was true in particular of the rule of law as the basis of government and the independence of the judiciary, and judicial power itself could finally act as a check on executive power.
Also significant are the rulings issued by the State Security Courts recognized under the 1971 constitution. As Brown points out, these courts “have used their independence since the mid-1980s to issue acquittals in cases in which defendants claim to have been tortured” (ibid., 98).
As noted, however, it is above all the Supreme Constitutional Court that through its case law has acted to keep executive power in check and to safeguard civil and political rights. As has been argued, “Egyptian constitutional justice has played a key role in both placing constraints on executive power at its highest rungs and holding back the predominant force the state in society, and has done so without going so far as to call for a judicialization of law” (Sbailo 2011, 353; my translation).
Democracy in Islam and Western democracy 115 the second institutional, and the third “presidential,” concerning as they do the office of the president: while these amendments strengthened the country’s constitutionalism, they also at the same time made for a more powerful presidency. The ideological element comes through clearly in Article 2, under which “the principles of Islamic sharT'a [mabddi’ al-shart'a al-isldmiyya are the principal source [al-masdar al-ra’isl] of legislation,” and are not just one among other sources of law. On the one hand, this “Islamification” of the system of the sources of law came in response to growing Islamist pressures in Egypt; on the other hand, the effect of identifying the shart'a as the main source of legislation was to shift power to the state. But this reform also strengthened the role of the Supreme Constitutional Court, which secured the ability to interpret the principles of the shart'a on which basis lawmakers were to enact laws.
As for the institutional framework, multipartyism was allowed under a system in which the party in government holds a dominant position. But
the 1980 amendments enhanced the authority of the president in two ways. First, they removed the two-term limit on the president, allowing him to serve indefinitely (al-Sadat was assassinated before being able to take advantage of this change, but his successor, husni Mubarak, has been elected to four terms). Second, one third of the Consultative Assembly was to be filled by presidential appointments, allowing the president to dominate the new body. (Brown 2002, 85)
The controversial modernization policy introduced by al-Sadat was kept in place by Mubarak, but in a political framework in which “the central position of the presidency [...] remained unchanged, and mechanisms to hold the president accountable [...] worked only at the margins” (ibid.). Indeed, in 2007 Mubarak pushed through a constitutional reform that, ostensibly to protect the system, strengthened the president’s emergency powers as well as the power of the executive (see Sbaild 2012, 261ff.). These characteristics of the Egyptian regime lasted through and informed the 2010 elections, during which a presidential system was at work that, in the name of stability, felt it could legitimize the repressive measures taken against political adversaries, and mainly against those who espoused radical Islamism (ibid., 278-79).
This was the political landscape, devoid of any real constitutionalism, across which in 2011 the Egyptian Arab Spring would sweep.
1
See Sbailó 2012, 212. In 1993, the Supreme Constitutional Court “argued that the shari'a can be divided between fixed principles (which must be observed) and rules subject to contestable and changeable rules (in which the legislature may exercise its discretion according to changing needs and conditions)” (Brown 1997, 126). Cf. Lombardi and Brown 2006.
