Egyptian Court Overreached in Declaring a Legislature to be Unconstitutional

In 1803, the U.S. Supreme Court decided Madison v. Marbury, which established the authority of the court to declare a law to be unconstitutional, and thus invalid. A basic principle underlying this authority is that a constitution is on a level superior to a statute. An entity established in a constitution to interpret it can thus invalidate a law passed by another body established in the constitution. Invalidating that other body itself would be an entirely different matter, as it would involve one constitutional body dissolving another of equivalent grounding.

Accordingly, the constitutional court in Egypt overreached on June 14, 2012 in declaring the parliament dissolved. To treat a legislative body as akin to a law established by such a body evinces a category mistake with respect to level. Whereas a law is subject to decisions by governmental bodies, the latter themselves are subject to constitutional amendment rather than governmental action (including that of the judicial branch of government). General speaking, basic law such that creates governmental bodies (whether in constitutional language or not) trumps that which is created by those bodies. Put another way, a court must take the existence of the extant government institutions as a given.

By loose analogy, the Egyptian court was treating a sibling as if it were an offspring. Whereas brothers and sisters of the same generation are “on the same level,” their kids are on another level. One does not treat one’s brother and nephew similarly. So too, sibling governmental institutions should not treat each other as if they were that which they produce.

The judicial breach in Egypt was particularly suspect because the justices had been appointed by Mubarak, whose last prime minister was running for president against the candidate of the opposition party, which dominated the parliament as a result of a democratic election. Fittingly, that party disputed the court’s ruling and its authority to dissolve the legislature. Saad el Katatni, the Parliament’s majority leader, accused the military-led government of orchestrating the ruling. Although it was politically suspect and thus not credibly judicial, my point is that for the justices even to have thought that a court could dissolve another governmental body points to a basic ignorance concerning the difference between a constitution, governmental institutions, and laws.

A constitution (or basic law) creates and thus is superior to governmental bodies, which in turn make, execute or interpret (and thus are superior to) laws. That this basic hierarchy was somehow lost on the Egyptian justices suggests a basic incompetence that nullifies the court’s decision as that of a constitutional court. In other words, the decision can be interpreted as a coup rather than a judicial ruling merely on account of the ignorance. The error is that glaring, and yet somehow the jurists presented the ruling as legitimate nonetheless.

Faced with the real likelihood that the nescient democracy was being snuffed out by the partisan power-play made under judicial auspices, Egyptian citizens of all stripes had to decide whether to put a democratic Egypt above even partisan advantage. I suppose the matter of democracy in an autocratic context depends ultimately on how badly the body politic wants political self-determination, for the forces that are dominant in the status quo do not just go softly into the night. Rather, they have to be shown the door more than once, until they finally get the message.

Source:

David Kirkpatrick, “Forces Surround Parliament in Egypt,Escalating Tensions,” The New York Times, June 15, 2012. 

Egypt: A Missed Opportunity to Interiorize Protests

How a democratic system is designed can be as important as whether the government officials have been elected or appointed. In constructing a democracy, it is not sufficient to simply hold elections. While the victors may have democratic legitimacy, the government itself may still not. Egypt amid the violent protests in early 2013 may be a case in point. Even though unlike in 2012 the sitting president had been democratically elected, it is too simplistic to say that the Egyptian government and constitution had democratic legitimacy.

In January 2013 following an Egyptian court sentencing 21 residents in Port Said to death for their roles in the stadium disaster, the chief of the army said that the ongoing violence could bring about the collapse of Morsi’s government. The opposition demanded that the president establish a nationally unified government and rewrite controversial parts of the constitution that had recently been passed. That the constitution had been pushed by religionists amid an increasingly polarized citizenry left even the democratically elected government vulnerable. It was not enough that Morsi had been democratically elected.

Particularly in a highly polarized country, simply holding elections is not sufficient to usher in a sustainable democracy. If a partisan party holds virtually all of the power in the government of a highly polarized country, the opposition will have no recourse but to resort to protests and even violence. Put another way, democratic legitimacy requires more where a citizenry is polarized in the sense of operating under very different, and thus highly conflicting, assumptions and prescriptions. In such a context, a democratic system that hands virtually all the power over to one “side” is insufficiently democratic.

This is not to say that a “unity government” is the answer. Given the polarization, any unity would be illusory. More realistically, Morsi could have viewed the sheer intensity of the violence in the protests as an indication that the new democratic system was being monopolized by one party at the expense of others. Providing them with their own bases of power within the government and democratically elected would bring in the external political strife—replacing violence on the streets with debate and negotiation between governmental institutions. The latter is not predicated on unity. Even any resulting compromise in legislative terms would not necessarily imply unity.

 Can such intense violence be "interiorized" as debate and politics in a legislature?  Government itself can be viewed as civic violence "redacted" and "refined."   Source: thestar.com

Interiorizing the conflict on the streets by permitting it with some political power within the government could be accomplished through a bicameral legislature, the chambers of which having very different bases of membership, or a qualified majority vote mechanism in a single chamber. The separation of powers could also be by government branch, with one party controlling one branch and the opposition controlling at least part of another branch.

In the U.S., for example, a Democrat controlled the White House at the time, while the Republicans controlled the U.S. House. The opposition did not have to have a share of the power in the House because the minority there had another power base within the government. Were the government completely dominated by even democratically elected Republicans, such was the case in Wisconsin after the election of 2010, activist Democrats would head for the streets. That the legitimacy of such a government can quickly become suspect in spite of its democratic basis is illustrated by the thirteen senators from Wisconsin who literally fled to Illinois so Wisconsin’s senate could not function with a quorum. Democracy involves the design of a government as much as that crucial offices are elected rather than appointed. To be legitimate democratically, the government’s design should interiorize political strife by providing a power base to more than one party.

In short, it is not sufficient for the Egyptian president and even its parliament to be democratically elected, such that one party can dominate both simply due to the numbers. Given the extent of polarization among the citizenry, such domination is doomed to failure even if the dominated party is in no hurry to differentiate power-bases within the government. Particularly in cases such as Egypt where the parties are “not on the same page,” the opposition must have some basis within the government to act as a check and thus balance out the otherwise excess possible in one-party rule. In a polarized citizenry, such excess quickly pushes the other side to extreme reactions on the street.

The task in the construction of a viable government in Egypt would seem to be providing opposition groups with enough ownership within the government without thereby providing a veto on any legislative output. As of early 2013 at least, Egypt might have to go a couple of rounds before a design is adopted that effectively interiorizes the violence.  Otherwise, splitting the country into two—one secular and the other a theocracy—might be the only viable solution (other than federalism and the sort of democratic design discussed here).  It is notoriously difficult to relocate people, however, so as to have truly distinct secular and religionist societies. Given the daylight between the two camps, however, partition, such as that which had occurred between Pakistan and India in 1947 might simply reflect the fact that two distinct nations had already come to exist in Egypt. If so, it is the fossilized nature of a defined country that may be the underlying obstacle to Egypt catching up with itself.

Source:

“Egypt Political Factions Condemn Violence, Urge Dialogue,” Deutsche Welle, January 31, 2013.

Constructing a Constitution: Egypt in the Arab Spring

Concerning a new constitution, which is more important: the process or the content? In Egypt in 2012, that most secularists and the Coptic Christian representatives walked out of the assembly working on a constitutional document suggests that the final product would not have legitimacy for all of Egypt. To be sure, it is possible for a partisan group to design a system of basic law that is not overtly self-serving at others’ expense. The document that emerged from the assembly weakens the presidency and strengthens the parliament. This shift was in line with the popular protest in “the Arab Spring.” However, the assembly left in place a “longstanding article” grounding Egyptian law in the principles of one religion. Furthermore, a provision on women’s equality was left out, and the military generals would keep their existing power. Moreover, anticipating dissolution from Mubarak-appointed judges, the assembly began its work from the last Egyptian constitution.

Do the members of the constitutional assembly look liberal or conservative?  Reuters

Basing deliberations on the status quo works against the process needed to arrive at a new constitution, especially if the last constitution had been constructed in a very different time. The Wall Street Journal reported at the time that legal experts indicated that the assembly’s final document was “almost identical to the 1971 constitution written by former President Anwar Sadat”—hardly a democratic document.

The construction of a new constitution from scratch would have had particular value in allowing the old political system to “catch up” to the contemporary context. The default, in short, in a constitutional assembly’s deliberations should not be based in the status quo. This point is easily missed, particularly when the other weakness of a partisan group dominating the assembly is also the case.

In the best of all possible worlds (Leibniz’s expression), delegates from all of the principal segments of society should be included in a constitutional assembly, with no group having a majority. Where such a majority is the case, a certain percentage of the minority should be required for an article to be adopted. Second, rather than being based on the last constitution, the starting point could be based on a new blue-print formulated in very basic terms by a committee (composed of delegates from the major segments of society). In the case of Egypt, delegates favoring particular major religions as well as secular society should have been on such a committee, and, moreover, active in the deliberations of the committee of the whole—the assembly itself.

A constitutional assembly should be a microcosm of the macro society, and thus inclusive of the powers and the non-so-powerful. Ideally, Rawls’ “veil of ignorance” should apply, wherein no delegate knows which segment he or she is in. Hence, no segment is apt to be left out or expunged. The veil would apply as well to the existing or prior constitution, so ever its assumptions would not serve as the default for deliberation. In short, a constitutional assembly should “reinvent the wheel” in the context of where a society is, rather than was. This does not mean that the resulting document would necessarily be progressive, particularly if a given society is traditionally-oriented.

In the case of Egypt, the “new” constitution drafted by the assembly, unlike the constitution that had been written by Anwar Sadat, includes a reference to the laws of a particular religion. In fact, both the state and “society” are given the authority to “ensure public morality.” Lest it be supposed that Egyptian society had become more traditionalist and religious in terms of a particular religion since 1971, the changes from the status quo document could simply have been a reflection of the partisan make-up of the assembly. 

In conclusion, all major segments of society must ratify a proposed document of basic law for it to have legitimacy and a real chance at a sustained run. Absent such approval of a super-majority or of all of the major elements of society, a proposal should be read as partial or incomplete. Rather than returning to it, a new assembly of delegates should “start from scratch” so a document can be crafted with presuppositions freed from the tyranny of the status quo and any major faction.

Sources:

David Kirkpatrick, “Islamists Rush Through Egyptian Constitution and Prepare to Vote on It,” The New York Times, November 30, 2012.

Sam Dagher and Matt Bradley, “Egypt Adds Islamic Influence to Constitution,” The Wall Street Journal, November 30, 2012.

Morsi as Partisan in Constitution-Building: Lessons from Washington

Appealing for unity after the controversial ratification of a draft constitution in December 2012, President Morsi of Egypt pledged in a televised address to respect the one-third of the electorate that had voted against the proposed constitution. He claimed that “active patriotic opposition” should not annoy the president or the people in a democracy. I contend that the office of president should not be of the sort that would have partisan opposition, ideally at least. That is to say, presiding means safeguarding the process itself, as well as the good of the whole, rather than pushing a partisan agenda. That Morsi was on record in support of the partisan-drafted proposal undercut his role as presider in chief. Given the innate instability of a nascent democracy, the role for a presider “above the fray” was particularly valuable in Egypt at the time. Morsi fell short in this regard, and thus put the fragile democracy at risk.

President Morsi speaking behind the seal of Egypt, suggesting a "good of the whole" orientation.     source: csmonitor

In his address, Morsi said, “We don’t want to go back to the era of the one opinion and fabricated fake majorities.” Such an era is the extreme of a partisan president. The presiding president, in contrast, transcends opinions and even majorities, being oriented to the long-term interest of the republic itself. Literally, to preside means to “stand before,” as exemplified by George Washington’s officiating role at the constitutional convention in the United States in 1787. He resisted the urge to “trade on his stature” to advance one or another proposal until the last day, when he suggested that a U.S. House district of 40,000 rather than 30,000 would be insufficiently representative.  Had Morsi followed Washington’s example as the draft Egyptian constitution was being proposed and ratified, Egypt might have had a more credible person to hold up the fragile democracy so it would take root rather than succumb to partisan strife.

While pursuing a partisan path is undoubtedly tempting for a president, the costs are often ignored or hardly transparent. In Morsi’s case, his invitation for the opposition to join a dialogue was met by Husseain Abdel Ghani’s comment that the invitation was merely Morsi’s “dialogue with himself.” Only by standing above the proposed draft could the president have had enough credibility to effect a reconciliation. It was not enough for him to move to the political center after the ratification had been secured.

Instead of being invested in the draft, Morsi could have focused on “the big picture” in terms of how much consensus is necessary for a constitution to be something more than a partisan-approved document. Put another way, Morsi could have been oriented to the process by which the partisan-dominated draft could have been further modified such that at least part of “the opposition” would have been on board. Unlike a law, a constitution should have more than a majority faction’s stamp on it. Because most of a society should be behind a convention, it should not be dominated either in its formulation or ratification by the majority faction, or else follow-up work is warranted. Here is where a presiding president can come into the picture, being oriented to the society as a whole—to which a constitution rightly corresponds.

In short, Morsi may have approached the draft constitution as though it were a law rather than a constitution. Advancing the document that was dominated by his party in being formulated, he missed the opportunity to seek a wider massaging of the document into a final form. A similar mistake occurred in the American case as the convention there refused to consider proposed amendments from the countries’ ratifying conventions—some of which had sizable anti-federalist representation. Had this minority been assuaged, perhaps the resulting document might have had more safeguards against political consolidation at the expense of the governments of the member states.

Washington, himself a federalist, missed the opportunity to suggest on the last day of the convention that it would be in the long-term interest of the United States for the states to send new delegates to another convention for the purpose of considering amendments proposed by the ratifying conventions because a viable constitution should be something more than reflecting one perspective—as any one perspective contains blind spots. Moreover, incorporating a minority’s concerns could provide a check against the tyranny of the cultural artifacts of the age. A resulting document would be more likely to stand the test of time.

Similarly, by the way, an academic treatise can only be determined to be a classic after the scholar’s age has passed because only then—in another culture, in effect—can the artifacts of the author’s own be fully transparent. Like a good scholar being oriented at least in part to readers not yet born, a presiding president is oriented to a process most likely to render a constitution into a classic. Of course, it would be impossible for such a presider to ever know if he (or she) has been successful. The best such a president can do is to take pains that the process not succumb to expediency. Having such a perspective, such a president should be indifferent toward the various partisan agendas, even that of his (or her) own party. From the standpoint of such a presidential viewpoint, partisan agendas are merely the fleeting vanities of vanities.

Source:

David Kirkpartick, “Morsi Admits ‘Mistakes’ in Drafting Egypt’s Constitution,” The New York Times, December 27, 2012.

Happiness: A Matter of Prosperity or Economic Security?

A macro-economist would probably assume that the percentage of people rating their lives positively enough to be considered thriving is positively correlated with real GDP per capita. Yet evidence suggests that this is not the case. The key to happiness, I submit, is having the sense of foundational economic security—that come what may, even in the case of rich people, you won’t fall through the cracks. It is difficult to thrive over a continuous, subterranean (i.e., subtle) anxiety, whereas a sense of security, such as most children feel while still living in their childhood homes, is a sturdy foundation on which a sense of thriving can grow and survive. I think most people, particularly Americans, take this point for granted, and thus are all too willing to make staples like housing, food, and health care conditional on having money.

In Britain during the two years leading up to the referendum to secede from the E.U., Gallup found that the percentage of people who were happy in the sense of having the sense of thriving fell 15 percent.[1] Meanwhile, GDP per capita (PPP) in current international dollars increased from $38,873 to $41,499.[2] Egypt, likewise, went from 29 percent “happiness” in 2005 to 8 percent in 2012, while GDP per capita increased from $8,123 to $11,210. Clearly, something other than the level of prosperity is behind changes in happiness as a sense of thriving.

That Norway (7.537), Denmark (7.522) and Iceland (7.504) led the pack among countries in terms of happiness as thriving in 2017, with the Netherlands coming in sixth and Sweden tenth may suggest that having an economic safety-net may be important. The United States stood at only 6.993, and the safety nets in those states are partial. To be sure, the state of France in the E.U. came in even lower, at 6.442, and Italy at 5.964, so we cannot conclude that the stronger safety nets in the E.U. necessarily translate into more happiness. However, even within the E.U. Denmark and the Netherlands were known for their well-fortified socio-economic infrastructures, whereas in the U.S. only Massachusetts and California were known to have relatively encompassing social policies in comparison with the other American states. Unfortunately, Gallup lumped all of the American states together while distinguishing the European states, so we cannot tease out differences within the U.S. 

Even so, the high marks of Denmark, Norway, and the Netherlands suggest that having a solid social-welfare safety net for the most vulnerable in matters of food, housing, and medical care is at the very least consistent with a broad sense of happiness in the sense of not merely surviving, but thriving in life. With less of the existential, conditional angst, people rich or poor can feel more stability upon which they can step out onto striving, venturing, into the unknown, with paradoxically a higher chance of sustainable self-sufficiency.

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1. Jon Clifton, “The Happiest and Unhappiest Countries in the World,” The World Post, March 20, 2017.

2. Source: The IMF

Food Prices Rising: Will the Global Population Growth Outstrip Food Supply?

I contend that it is in our interest as a species to see that our population size is managed toward a steady state rather than as a maximizing variable (i.e., schizogenic). In fact, we have a right and obligation as one body to see that our various limbs are coordinated such that none engages in hypertrophy. That is to say, the whole has the right to protect its viability by arresting excessive growth in one of the parts. That much of the world's population growth takes place in the developing world does not mean that this right, or obligation, of the world is somehow a plot by the developed countries to oppress the poorer countries. In fact, much of the pain of the higher food prices is in the developing world rather than in the industrialized countries, so it is in the interest of the developing countries to accede to the world’s demand that their population growth be stopped.

According to USA Today, by mid-March in 2011 the World Bank’s food index had soared 29% from its level just the previous January and was a mere 3% below its 2008 peak. From March in 2010, Corn had increased 52%, sugar, 60%, soybeans, 41%, and wheat 24 percent.  The paper reports that the surge in food prices had many causes, including 1) rising population, which means increased demand for food, 2) speculators, who bid up commodity prices to artificial heights unrelated to supply, 3) soaring oil prices, which increase resource costs to the farmers and transporters, 4) trade policies, which become restrictive when shortages arise within a country (increasing the price on the world market), and, ironically, 5) improved standards of living in emerging nations, as new middle class consumers buy more meat. Of all of these factors, I contend that the rising population is the most fundamental, followed up by the related factor of oil.

A few months into 2011, the world's population stood at 6.8 billion, more than double the three billion in 1960. For a person of 50 years, the world's population had doubled in his or her lifetime. Although Thomas Malthus, the early 19th-century scholar who proposed that the world population could exceed the Earth’s ability to feed everyone, was controversial in his day because how could an omnibenevolent deity's design include such a harmful flaw, Malthus's theory has been virtually ignored in the 21st century as of 2011 as India and China in particular have continued to grow in population at unsustainable rates (especially India--China having a quasi-one-child policy that has moderated its increase). Dan Seiver, a financial economist at San Diego State University, pointed at the time to the green revolution as still being implemented in parts of the world; he is thus not yet ready to concede that the Mathusian thesis has arrived. However, in his work, he discounts the relatively high population growth rate; the increased efficiency or yield from the continued dissemination of "green" technology would have very great to outweigh the fixed (and in fact constricting) constraint of the world’s fertile land area that is used to grow food. In fact, according to the World Bank’s Hassan Zaman, the percentage of the U.S. corn crop that was used to make ethanol went from 31% in 2008 to more than 40% projected in the 2010-2011 growing season. While it is true that unlike the supply of oil in the ground, the land is being consumed, it can indeed be overused if it is not allowed to lie fallow, for example, to rest for a growing season. As the growing population exerts more and more pressure on the land to produce more and more, the land, like a horse pushed too far on a long journey on a hot August day, will tire and slow down. This would tend to happen just as the world needs each agricultural acre more. Therefore, if we as a species are unwise and expedient now in how we manage our land, our descendants will pay for our selfishness later.

While the effect of higher food prices is modest in the developed world, 50% or more of a family budget goes toward food in many emerging markets. American consumers spend about 9% of their income on food, and another 3% for dining out. The difference is not because food is more expensive in the developing world; rather, the percentage is so high because the typical income there is so low. “For many people who spend two-thirds or three-quarters of their income on food, even small price increases disrupt normal routine,” says Hassan Zaman, lead economist for the World Bank in poverty reduction and equity. “They start sacrificing non-food items, such as clothing, and then start eating less.” Indeed, the rising cost of food has been one factor in the protests in the Middle East that were not so pristinely "pro-democracy" as the media represented. 

USA Today reports, for example, that "(w)hen Mohamed Bouazizi set fire to himself in Tunisia in December [of 2010], it wasn’t because he was yearning to vote. It was because he couldn’t feed his family and police had confiscated the fruits and vegetables he was trying to sell." Although perhaps not focused on gaining a vote, however, Bouazizi had had enough of police-state tyranny so his protest was not merely economic. Perhaps the economic, at least when it manifests in vast inequalities supported by an infrastructure tilted by powerful vested interests rather than by a differential in talent and effort, is inherently political.

In short, developing countries should be amenable to population control even if the directives come from international organizations. Such countries should not resist the world acting as one body just because much of correction needed for sustainable human living on Earth would take place in the developing countries.  We as a species can no longer afford to be petty or partisan with such matters as concern our species' continued existence. If the world does not act as one mind over its body and engage in some much needed weight-control, the patient will grow too big and soon die of a heart attack. In the end, it is not a developed/developing contest, but, rather, a decision for all of us: are we to continue growing like a virus or are we better than that?  If we continue to refuse to take responsibility for our species as a whole, perhaps the cock roach will deserve to survive us.

It is ironic that we vaunt ourselves as being made in the image of God while our species refuses to step up to the plate even to manage itself so it can survive. Many of the world's religions teach us to submit to something greater--to something wholly other. It is more difficult, it would seem, for us to submit to the good of our species as a whole, even as we as a species run up against the semi-permeable membranes that delimit us on our planet in so many ways.

I contend that we are getting closer Malthus’ "the threshold point." Future population growth (and the added consumption, such as of food and energy, that is inevitable with such growth) could have dramatic implications for human life. The previous growth did not have such implications, at least  with respect to the world as a whole, so that growth was qualitatively different than that which we shall face if we continue to add billions to the global human population.  This qualitative distinction is precisely what we as a species have been having such a difficult time in grasping. To the chagrin of financial chartists, who try to divine stock movements in the future based on past trends, what was the case yesterday may not be the case tomorrow anymore. We got hits of this when the global financial system almost collapsed in September of 2008 and the Japanese nuclear plant almost had a meltdown in March of 2011. There being no financial market or no Japan would have been a wake-up call to us all concerning the assumptions we all implicitly make about there being a tomorrow like today. The sun may rise again, but we may not be around to watch it. Being made in God’s image does not guarantee us a seat. To grasp this vital point requires moving one's eyes from the rising prices on the shelves at our favorite local grocery store to consider the big picture with respect to the human race on planet Earth.  To act on this point requires significant reform of international organizations, such that they would be more than the sum of their parts.

If coordination between countries such as through the U.N. is not sufficient to arrest growth in the worst offenders, a transfer of a degree of sovereignty adequate for the tasks needed to avert reaching the threshold point beyond which the Earth can no longer support the human race is needed. This is particularly true if the worst offenders do not have the political will to correct themselves even if doing so is in their own interests. All too often, continuing in the status quo is too convenient to be resisted with enough energy to reverse the entropy even if correction is urgently needed. Lest the fear of a world government or federation enable the insufficient coordination to be presumed as the best we can do, the governmental sovereignty that is transferred should be accompanied with a design of checks and balances such that political consolidation does not occur. This is not, in other words, an argument for one world government. Rather, it is an observation that the human race as a species as reached a point where the species itself needs manage itself with respect to the planet as a constraint. Otherwise, the continued viability of our species will be in jeopardy. The fear of nuclear war during the last half of the twentieth century was just the dawning of this recognition. The question now is whether we act on our new awareness and situation with respect to the Earth.