Recent Commentary on the Proposed Amendments to the Egyptian Constitution

Recently, Tom Ginsburg described in this blog some of the proposed constitutional amendments for the Egyptian Constitution and flagged Tamir Moustafa’s brief analysis of them in foreign policy. It is also worth drawing people’s attention to commentary by two other commentators with long experience watching Egyptian constitutional developments. Each has just today posted interesting thoughts on the subject. While I formulate my own thoughts, I wanted to draw people’s attention to these valuable pieces and provide a quick guide to some of the points that I found most interesting in them.

(1) Ellis Goldberg, is a University of Washington professor of political science fortuitously on leave this winter and Spring at the American University of Cairo. He has been writing a fascinating blog and posted a piece today the constitutional amendments. It is available here . Goldberg, an experienced and savvy watcher of Egyptian politics and law, goes into more detail than anyone else I have seen about the ramifications of the ambiguities that currently exist about the order of elections-will parliamentary elections be held before presidential elections or vice versa? He also notes the ambiguities about the future role, if any, of the discredited, but not yet dead National Democratic Party through which Mubarak ruled Egypt. He also concludes with thoughts that will resonate, I am sure with the readers of this blog and anyone else who studies the ripple effects of seemingly dry changes to legal text and political systems:

Reporters and op-ed writers have moved on to Libya, Wisconsin, or other places where courageous people are accomplish exciting goals. I certainly would not expect Tom Friedman or Nicholas Kristof to remain in the Semiramis Hotel and follow the minutiae of Egyptian constitutional law and politics as it gets played out in meeting rooms both ornate and shabby or in the connecting corridors. But in fact that is where the next phase of Egyptians’ struggle to achieve a more accountable political system is going to be played out. The decisions will seem to be dry, technical and remote. But they will be profoundly consequential and their effects will be wrenchingly immediate (as with Zuwail’s candidacy) as well as long-term.

(2) Nathan Brown has for years been following the evolution of constitutionalism in the Arab world and particularly in Egypt. Alongside his book on the history of the Egyptian legal system, his broader discussion of the way in which constitutions in the Arab world can be (and often are) drafted for reasons other than the promotion of constitutionalism is essential reading in these days. He has today posted on the Carnegie Endowment’s website an analysis of the constitutional amendments co-written with Michele Dunne. It is available here

Not surprisingly, Brown and Dunne spot quirks in the constitution that may or may not be the product of haste or lack of thought. They suggest that “some surprising amendments raise questions about whether the changes serve specific agendas within the military or other leadership circles.”

Particularly interesting, I think, is their analysis of the ways in which reforms that might, at first glance seem to be unalloyed goods may operate in unusual ways in Egypt’s particular political ecosystem. They note, as did Moustafa, that the effect of some of the amendments to constitutional provisions dealing with elections will depend upon whether the electoral law is amended, though they stress different issues. Brown and Dunne have a brief, but highly intriguing analysis of the provisions requiring judicial review of elections. Moustafa commented on the provisions making the Supreme Constitutional Court the final arbiter of any challenge to election results–noting that the SCC has become increasingly less independent. Brown and Dunne point out a subtler, but for that reason alone, perhaps more pernicious problem. Elections are supposed to be monitored from start to finish by the judiciary, and it will be information from judges (not on the SCC) that one expects will inform the SCC’s decision. It is not clear that the judiciary has the manpower or expertise to carry out this type of supervision properly. Promotion of democracy will, therefore require an increase in the size of the judiciary so that they can do this and significant attention to training judges for this, traditionally non-judicial task. There is also a deliciously cynical discussion of how the provisions that appear to restrict the executive’s ability to declare states of emergency might still have loopholes in it. For these and other insights, theirs is a post well worth reading.