Prof. John McEldwoney
Profesor of Law Warwick University School of Law

Abstract:

Egypt’s constitutional crisis has lessons for those that seek to promote democracy, the rule of law and accountable, as well as responsible government. These lessons have global significance as political and constitutional systems of government are increasingly required to address overly powerful executives in the face of weak legislatures. Most problematic is the move from forms of military rule to limited and accountable democratic power. Effective and efficient legislatures are needed, both to act as a check on executive government and also, as a means of expressing democratic mandates. How is the challenge of balancing various branches of government to be achieved during a period of economic and political uncertainty? What are the transitions to democracy that are effective? It is clear that in many constitutional arrangements political sovereignty through a one party dominant state may challenge the rule of law and frustrate the operation of democracy by the usurpation or dominance of Parliamentary power. Factionalised politics whether because of religious or ethnic reasons have to be addressed in democratic solutions.The legislature may legislate in a way that impinges on natural justice or act in an authoritarian and unaccountable manner at variance with the rule of law or international norms of justice. It may occur in completely democratic countries as well as one-party states. How can the rule of law be upheld if an elected government is dominated by one political party and misuses sovereign power or seeks to act in an authoritarian manner? One- party political dominance raises concern about accountability whenever there is a discernible tendency towards authoritarian decisions. This may take the form of “a majority tyranny” where the rights of minorities are ignored. The Executive may seek to abuse or misuse its powers; it may make decisions through administrative or executive discretion and may ultimately seek to use legislation to legalise its illegality or abuses. The Arab Spring brings to the fore many of the challenges and tensions in managing constitutional checks and balances in a period of economic austerity. The Egyptian example is examined in this case study following events after the recent military takeover in July 2013. The Egyptian Constituent Assembly approved a new democratic Constitutionin November 2012. It was ratified by referendum in December 2012 and in force until the military take-over in July 2013. Military rule signalled a failure of Egypt’s experiment in democratic government that raises disturbing questions about whether there are any prospects for future democratic solutions. This paper argues that re-building the basis for democracy begins through recognising the rule of law and addressing the importance of opposition politics in understanding the art of governing.

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