Thursday, 16 June 2011

Extra-legal Constitutions in Egypt and the U.S.

Lorianne Updike Toler

On March 19, 77.2% of Egyptians approved constitutional amendments to the 1971 Egypt Constitution,  submitted to the people by the Supreme Council of the Armed Forces (SCAF).  These contained a transitional agenda for a new constitution.  The approved agenda, now under way, dictated that parliamentary elections would be held in September, that the parliament would then appoint a 100-member committee to draft a new constitution, after that the people would thereafter be given the chance to discuss and vote on the constitution after two weeks time.

Several groups are now regretting that vote, and are coming up with their own plans to devise a constitution for Egypt.  I have blogged about one group who has devised technology through which texts from the world's constitutions may be easily inserted into an Egyptian constitution here and about several groups who have  called for a new constitution before parliamentary elections here.  Yesterday, the Hisham Mubarak Law Center announced their own populist plan for involving every-day Egyptians in constitution-writing, involving questionnaires and the hosting of discussion groups regarding political structure and individual rights.  

Based on the people's overwhelming approval of the transitional plan, these efforts sound extra-legal, problematic beginnings for a document destined to be the quintessential legal text for the country.  The coalition groups from yesterday's blog, however, counter this argument by pointing out that SCAF nullified the transitional agenda amendments by nullifying the 1971 constitution upon the later issuance of 63 articles.

Yet the legitimacy of SCAF's unilateral actions in decreeing the 63 articles abolishing the constitution may also be called into question, and so the legal arguments work themselves into neat little circles.

For one whose career has centered around the United States' beginnings, this all sounds very familiar.  Enter James Madison, George Washington, Virginia governor Edmund Randolph, and others of the Virginia delegation to the federal convention of 1787.  This convention was commissioned specifically to amend the Articles of Confederation.  Yet before the convention convened, Randolph, in a letter to Madison, introduced the idea that Virginia, being a large and populous state (and the first state to recommend such a convention), should propose their own plan.  Madison picked up on the idea, and wrote back to Washington and Randolph with seven ideas for such a plan.  On the first real working day of the convention, May 29, 1787,  Randolph proposed what came to be known as the "Virginia Plan," with 23 resolutions outlining a frame of government with three political branches.

Other delegates raised objections, saying that the "acts of Congress recommending the Convention, or the [state] Commissions of the deputies to it" could authorize a discussion of a plan which did more than amend the Articles.  Yet this was quickly and silently passed over, as the delegates had eleven years of first-hand experience with the Articles' impotence.  They knew that, legality or no, the problems of state would not be heal through simple amendment.

The delegates were criticized for their extra-legality once the Constitution emerged from the secret convention.  Yet through thorough public discussion in the states and a long ratification process, what was once illegal assumed the imprimatur of legality.

Perhaps some degree of practicality is required in the messy, hard beginnings of any new government.  This so long as an extra-legal steps are carefully made legal by direct and thorough consultation with the supreme sovereign power, the people.

1 comment:

  1. Fascinating stuff, Lorianne. I have to wonder, given these developments in Egypt and the precedent of previous revolutions in American, Haiti, Iran etc. if extra-legality is a necessary quality of constitution building. Certainly in America the convention delegates were operating outside of their jurisdiction and mandate - but, as you say, they were dealing with coalition of laws and agreements that were, ultimately, untenable. History has vindicated these men and romanticized what they accomplished - but in their own day their actions were quite possibly treasonous! This, to me, begs the question 'is constitution-building itself an inherently extra-legal process?' I'm not the scholar on the subject you are, but I have to think...maybe. In these moments it is almost as if conventional notions of legality are suspended, or at least selectively enforced, thereby enabling participants in the constitutional-process to debate, and perhaps even test, the principles they wish to calcify into their nation's core legal doctrine. One of the interesting things, as I see it, is the way in which this permissiveness of extra-legal action is constrained, often tacitly and by the public themselves, so as not entirely to destroy the rule of law during this transitional phase. To what law are people bound when they have resoundingly cast off their legal system and await the formalization of something new? Do people simply stay the course without paying taxes - or do they rule themselves? It makes me wonder if extra-legality is the right language here, as it may well be that some aspects of 'legality' during these times are too transitional to be morally binding. I'll have to think about this though, as I haven't convinced myself either way.