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Egyptians' constitutional rights are mostly the same as ours... on paper

Protesters wave an Egyptian flag during a demonstration in Tahrir Square in Cairo.
REUTERS/Yannis Behrakis
Protesters wave an Egyptian flag during a demonstration in Tahrir Square in Cairo.

Egypt is a constitutional republic, in the relatively unimportant sense that its full legal name is the Arab Republic of Egypt and that it has a constitution. The Constitution has a bill of rights. It turns out that Egyptians have most of the constitutional rights that Americans have (in the relatively unimportant sense that the Constitution of Egypt says they have the right to free speech, press, religion and peaceful assembly and cannot be subjected to arbitrary arrest) and many that we don’t, for example, (and I am not making this up) the Constitution explicitly prohibits torture (ours does not).

There is a catch, however. Several actually, but one that Egypt has had on the books since 1958 is important: an emergency law that allows for many of these rights to be suspended when circumstances require. For example, when the emergency is invoked, the Egyptian government is temporarily empowered to arrest people without charge, detain prisoners indefinitely, haul prisoners before a special security court in which normal judicial guarantees are suspended and to limit freedom of expression and assembly on the general population.

Here’s the catch to the catch: The emergency law was invoked in 1967 during a genuine national emergency (the run-up to the Six-Day War) and has been in force ever express for a brief period in 1981, which ended when Anwar Sadat was assassinated (another genuine emergency). Nonetheless, that would be 43 years of nearly continuous emergency, which, considering that the Republic was declared 57 years ago, means that Egyptians have hardly ever enjoyed their constitutional rights, at least on paper.

The most recent extension was in May of 2010, which led to a U.S. State Department official announcing, on behalf of the U.S. government, that “We are disappointed.”

Prime Minister Ahmed Nazif told Parliament at the time of that last renewal that new language would ensure that the law would be used against only terrorism and narcotics trafficking.

In addition to providing one more way to illustrate the nature of the Mubarak regime, the “emergency law” gag also serves as a reminder that (a) we are fortunate to live in the United States, (b) that for all its foibles, our constitutional system generally works pretty well, and especially (c) that the importance of a constitutional system has less to do with the actual words in the Constitution than in the commitment that the society shares to respect it. This is among the reasons that I call our Constitution “The Myth that Binds Us.”

At times like this, my mind always goes to the Watergate tapes case. In handing over the tapes, President Nixon surely understood that he was quite likely ensuring that he would have to leave office or be removed by impeachment, perhaps even that he risked prison. So far as we know, no serious consideration was given to defying the Supreme Court.

Nixon was the commander in chief of the armed forces, boss of the FBI, the CIA, the National Security Agency and had been reelected — carrying 49 states no less — two years earlier. He had sought refuge from the requirement of handing over the tape in the doctrine of “executive privilege,” which is part of the mythic Constitution but mentioned nowhere in the text. But the Supreme Court didn’t buy it and Nixon accepted their ruling.

What would Mubarak do?

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Comments (7)

Thanks for the link to the Egyptian Constitution. Two things leapt out at me immediately:

Art. 45 -- "The law shall protect the inviolability of the private life of citizens." Out constitution lacks an explicit privacy guaranty, perhaps because the drafters considered the right to be so obvious. And yet court decisions such as Roe v. Wade, which based abortion rights on a right of privacy, are under constant attack due to the lack of an express privacy right (at least that's the superficial, legal argument). Isn't it time we amend the US Constitution to provide a express right to privacy?

No "Second Amendment" right to bear arms. Whatever the founding fathers had in mind when they drafted the Bill of Rights, it surely was not the right to carry holstered pistols into pizza parlors. Nor does it appear that they were concerned about the right to hunt, or the right to bear arms for personal protection. That pretty much leaves the right to bear arms as a means to permit citizens to defend themselves against excessive government control.

If the latter was the drafters' rationale for creating gun rights, recent events in Egypt demonstrate, more than anything, how outdated and antiquated this notion really is. So far, it appears that unarmed, peaceful protests have been successful in ending Mobarak's dictatorial reign. It seems unlikely that an armed citizenry would have hastened the process. On the other hand, armed citizens would certainly have lead to even greater violence and bloodshed in Tahrir Square over the last few days. Nor is it likely that the kind of weapons owned by average citizens would have been effective against the Egyptian Army, if it chose to intervene on the side of the government.

Maybe it's time to step back and take a cold, hard look at the Second Amendment and decide whether it really serves a legitimate purpose in today's society. Maybe it's time for repeal.

... For example, when the emergency is invoked, the Egyptian government is temporarily empowered to arrest people without charge, detain prisoners indefinitely, haul prisoners before a special security court in which normal judicial guarantees are suspended and to limit freedom of expression and assembly on the general population....

Patriot Act? Guantanamo? "Free expression zones"?

We don't need no stinkin' "emergency law". This is Amerikuh, son!

You know what, probably a large percentage of Egyptians approved of these "emergency laws". After all, they certainly couldn't apply to themselves or restrict their own freedoms, or could they?

Cecil--
All we have to do is recognize the two hundred years of jurisprudence (court findings) that have held that the second amendment ("a well regulated militia") refers to the National Guard).

Paul, you may be right, but enough people seem to be able to read enough other things into the Second Amendment (despite everything we hear from the same quarters regarding Constitutional strict constructionism) that it could, at least do with some clarification. Perhaps the best approach is, to borrow the GOP mantra, "repeal and replace"?

very nice!

Cecil--
We could rewrite the whole constitution every generation to take into account changes in language usage, but that's a messy bag of worms to open.
We're not talking about substantive changes here, just interpretation. That's what courts are for.
And unless we rewrite the constitution in totally unambiguous symbolic logic statements, some people will manage to reinterpret it according to their personal agenda.

I may have mentioned this before but, Tarek Masoud, who teaches at Harvard's Kennedy School of Goverment, wrote in Fridays (Feb. 4) NY Times that the Egyptian constitution needs to be revised in order to prevent another Mubarak-like regime.

Only the Parliament can amend the constitution to "defang the Egyptian presidency," he writes. For such amending to take place, the current Parliament must be replaced, and only an elected president can dissolve the Parliament and call for new elections. This cannot happen if Mubarak resigns before dissolving the Parliament, which would lead to new elections within 60 days, because vice president Suleiman was appointed rather than elected.

If Mubarak does the dissolving before he resigns, international observers monitor the new elections, and the new Parliament is seated, "an acting president, probably the new Parliament's speaker, takes charge until a new president is elected. The new Parliament would work around the clock to amend the Constitution in ways that would put Mr. Suleiman or any would-be strongman out of a job. The final step is a national referendum on the amendments."

The US is therefore wrong to call for Mubarak to step down at once. It must insist on his dissolution of Parliament if Egypt is not to be stuck with Mr. Torture (Suleiman) and others like him forever.

PLEASE see Masoud's article at www.nytimes.com/2011/02/04/opinion/04/masoud.html