The Cost of a Legal Transition in Egypt: A Price Worth Paying?

Clark B. Lombardi, Associate Professor of Law, University of Washington
9 Feb 2011

Some leading Egyptian democracy activists, backed by the US and European states, have called for an 'orderly transition' in Egypt, one that is both peaceful and formally legal. However, the quest for an 'orderly transition' comes with real costs. The Egyptian Constitution does not permit a truly open multi-party election for Egypt's Parliament or the Presidency. Nor does it permit constitutional amendments, unless the President nominally remains in power and unless Party elites agree to take complicated steps that will 'legalize' their removal from power.

In short, the Constitution requires negotiations that will allow President Mubarak and the NDP to demand some troubling concessions in return for their cooperation. These can be expected to create some degree of delay. They may lead to some controversial concessions, such as immunity from prosecution for abuses during the crackdown on democracy protesters or, more troubling still, some form of continuing influence in the new regime.
 
The Constitution requires negotiations that will allow President Mubarak and the NDP to demand some troubling concessions in return for their cooperation.
 
Are the benefits of legality worth these costs? Some think not. The BBC website this week showed a picture of an Egyptian protestor holding a sign that says in English: 'The Constitution Must Go'. Nevertheless, achieving a formally legal transition may have particular value in the Egyptian context. Respecting legality at this difficult time can build upon some surprising constitutional trends that have emerged in Egypt over the past forty years and it can help facilitate the path to a stable, democratic rule of law. Up to a point, legality is worth pursuing.
 
To understand the unique value of legality in the current environment, one needs to consider Egypt's recent constitutional history. Egypt overthrew its British-supported king in 1952 and thereafter went through a nearly twenty-year period of 'revolutionary' governments. During this period, revolutionary constitutions were promulgated with dreary regularity, with the understanding that they could be changed or replaced by executive (i.e., army) fiat.
 
The 1971 Constitution was designed to end the era of arbitrary rule and to usher in the rule of legality. The government would be constrained by a document that could only be changed by precise mechanisms. This explains why its formal name is the 'Permanent Constitution'.
 
The 'Permanent Constitution' was a schizophrenic document. It created a legislature, guaranteed fundamental rights, and established an independent judiciary. At the same time, however, the Constitution included provisions that explicitly permitted the President 'legally' to interfere in the operation of political and judicial institutions and, worse, to use a state of emergency to suspend rights. Egypt had the ability, consistent with its Constitution, either to develop into a democracy or to slide into autocracy. It slid.
 
The Constitution included provisions that explicitly permitted the President 'legally' to interfere in the operation of political and judicial institutions and, worse, to use a state of emergency to suspend rights.
 
That said, one paradox about the Egyptian government is that it generally did, until the past few weeks, respect legality. The government was allowed to repress in certain ways and not others. People could and did go to court to challenge the government when it repressed in an illegal rather than a legal fashion. The courts adjudicated those cases in a fair and impartial manner, occasionally ruling against the government. More striking, when litigants won a case, the government obeyed the decisions of the court, although in cases involving political rights, it generally took the time to develop a different, formally legal method of achieving its nefarious ends.
 
In the process, law and legality earned the respect of the people. Litigation became a common mode of contesting government action, even among mainstream Islamists like the Muslim Brotherhood. The Egyptian courts also won the trust of foreign investors, who began to have real confidence that the courts would enforce contracts as written. Until the past few weeks, Egypt was developing into a state with the 'thin' rule of law. In such a state, everyone accepts that the state is bound only to act within the confines of law, but this does not result in a democratic or liberal political order.
 
Egypt has been saddled with a deeply flawed political structure, with an over-strong executive and insufficient guarantees of political rights. By choosing to 'rule by law', however, that regime may have helped establish conditions that facilitate the growth of a more liberal and democratic rule of law. Those who desire not only the end of Mubarak's regime, but also its replacement by a truly democratic and liberal one should be cautious about blithely rejecting the tradition of respect for inconvenient (even deeply inconvenient) law. It is generally easier to thicken the thin rule of law than it is to build up the thick liberal democratic rule of law from scratch.
 
Many Egyptians realize this, which is why a group of senior liberal activists, dubbed the 'wise men', have been negotiating with the leaders of the current Egyptian regime trying to convince it to take the steps necessary to transition themselves out of power. The US is correct to encourage this initiative. But the US must do more than it has done so far to make it succeed. The leaders of the current regime have shown no interest in leaving power. They have met with activists, but have refused to agree to any significant reforms. In this environment, the value of a legal transition may disappear.
 
If the opposition could transition while maintaining respect for the inconvenient laws, this would have great symbolic value. But its value is not infinite and, more disturbingly, it is declining. Respecting legality has value insofar as it has useful effects after a real transition to democracy. If the Egyptian regime uses legality to prevent that type of real transition then respect for legality ceases to have any use.
 
The US and Europe must use all the levers of influence that they have in order to convince the leaders of the regime to accept a full package of constitutional reforms and to demand only reasonable concessions. 
 
The US and Europe must use all the levers of influence that they have in order to convince the leaders of the regime to accept a full package of constitutional reforms and to demand only reasonable concessions. It must make clear that if the leaders of the current regime cannot do that, then they will, regrettably, have to support calls for an extra-legal suspension of the Constitution followed by the drafting of a new constitution approved by popular referendum.
 
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Clark Lombardi is Associate Professor of Law at the University of Washington and Senior Editor of the forthcoming Oxford Encyclopedia of Islamic Law.
 
 
An Arab Spring activist in Tahrir Square, Egypt