Postscript: 'Constitution or Political Covenant?' in:

Cornelis Hulsman, Diana Serodio (Ed.)

The 2014 Egyptian Constitution, page 129 - 130

Perspectives from Egypt

1. Edition 2017, ISBN print: 978-3-8288-3838-3, ISBN online: 978-3-8288-6933-2,

Series: Anwendungsorientierte Religionswissenschaft, vol. 10

Tectum, Baden-Baden
Bibliographic information
Postscript: 'Constitution or Political Covenant?' Comments by Professor Erik Jurgens, emeritus professor o f Constitutional Law at Amsterdam University, September 20, 2014 This report about the Egyptian Constitution of 2014, which explains how the document was formulated, is very valuable. But it is (as a whole distinct from its parts) hardly a constitution. It is more a sort of social-political covenant, trying to put into words what is regarded as basic under the new circumstances in Egypt. A lawyer looks for exact formulas, which define competences and liabilities of the executive, the legislative, and the judicial branches of government, together with a catalogue of basic rights, (and the restricted procedural pos sibility of exceptions to these rights) and of course, a description of the insti tutions that are created by the constitution. This last part is the clearest in the text, albeit much too detailed. But as to the competences of the legislative branch, Article 2 undermines this competence by stating that a non-legal tradition, shari a, is the main source of legislation. How can that be compatible with the sovereignty of the people (Article 4)? Chapter One of Part II, Basic Components o f Society, is predominantly de claratory, not prescriptive in a legal sense. This is even more the case with Chapter Two, The Economic Components. The State is declared liable to guar antee specific economic policies that cannot be legally enforced. Part III contains important elements on human rights, but they have been formulated in such an expansive manner that it will be difficult to pinpoint, in a court of law, if such rights have been violated. Part IV, The Rule o f Law, should be giving an answer to this question. In it self Part IV seems to give a good rendering of what Rule of Law means. But the consequences of a violation of personal freedom (Article 99) should not be declaring such a violation a crime. Rather, it should lead to the declaring of such a violation to be ultra vires, that is, not to be recognised in a court of law. That is the consequence of the "Rule of Law." Thus, it is very difficult for a constitutional lawyer, as I am, to make com ments on this document. Not because it formulates unimportant things, on the contrary, but it is more of a 'social contract' in a political sense, than a legal document. 129 I am also a former politician, a member of parliament in my country for twenty years. As such, the document is very interesting, trying as it does to formulate a minimum of consensus about the political system which ought to be obtained in Egypt. But a workable constitution should be much shorter and more concise, making it a document that binds the branches of government and the people, with clear legal texts. In the circumstances in which Egypt exists at this moment, the document called "The Egyptian Constitution of 2014" is of great political importance, this I understand. But it cannot fulfil a role as constitution, unless it is pared down to legally proven texts. And that would be a shame. The question begs: would it not be more preferable to leave this document as it is, and formulate separate statutes, based on this text, that regulate the branches of government and contain strict rules on democracy, human rights and the rule of law? 130

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After President Hosni Mubarak was toppled in 2011, discussions followed immediately regarding the revision of the Egyptian Constitution. Islamist political groups insisted that Parliamentary and Presidential elections should precede the formation of a new Constitution, aiming to use their momentum to gain the upper hand in the Constitutional Assembly. Non-Islamists believed that representatives from all layers of society must first formulate a new Constitution before elections should be held. Out of this struggle emerged the 2012 Constitution, a document deeply influenced by Islamist political ideas and goals. Dissatisfied with the proceedings, the non-Islamists walked out of the Constitutional Assembly before the Constitution was finalized. In attempts to reconcile the alienated non-Islamist factions, and heal a divided Egyptian society, the Egyptian Constitution of 2014 was created. All efforts were made to avoid a similar walk-out from Islamist factions. Various political actors were interviewed during, and shortly after the 2014 constitutional formation process. This book is essential reading for anyone wishing to understand the discussions and debates surrounding the formation of the 2014 Constitution. This book follows and complements the previous books in the series on recent religious and political developments in Egypt, in particular Vol. 3 The Sharia as the Main Source of Legislation? (2012), Vol. 8 Rise and Fall of the Muslim Brotherhood 2011-2013 (2016), Vol. 9 From Ruling to Opposition 2011-2013 (2017).