This forthcoming article by SHARIAsource Senior Scholar Mohammad Fadel is due to be published in an upcoming special issue of the International Journal of Constitutional Law. It describes how the development of laws in Egypt through a “deliberative political process” has been negatively impacted by the country’s top court:
“The Sounds of Silence: The Supreme Constitutional Court of Egypt, Constitutional Crisis, and Constitutional Silence”
The Egyptian Supreme Constitutional Court (SCC) issued a series of decisive decisions during the transition period following Hosni Mubarak’s resignation and the military coup of July 3, 2013. During the transition the SCC treated various “constitutional declarations” of the military as binding commands of a “constitutional lawgiver” which pre-empted the commands of all inferior lawgivers. This hierarchical conception of law as a series of commands issuing from a hierarchy of superior and inferior lawgivers means that legality is determined solely by reference to a particular law’s place in this hierarchy, without regard to the content of the command. Ultimately, the SCC’s jurisprudence enshrines a kind of “constitutional despotism” which exacerbates constitutional conflict, rather than mitigating it, by creating incentives for constitutional drafters to write ever more specific constitutional rules to enshrine particular outcomes rather than creating a framework for shared governance.
The article is available here from the Islamic Law & Law of the Muslim World eJournal.
The latest issue of the eJournal also includes another article by Darin Johnson, recently published in the University of Pennsylvania Journal of International Law, on the impact of civil war on constitution-making in Libya and Yemen:
“Conflict Constitution-Making in Libya and Yemen”
The violent intensity of the civil conflicts in Yemen and Libya has undermined the conciliatory objectives of participatory constitution-making in both countries. This, in turn, has imperiled the creation of consensus constitutional texts and risked the creation of “conflict constitutions” that would prolong, rather than remedy, the sources of conflict. This article presents a conceptual theory of “conflict constitution-making” that assesses the impact of civil war on constitution-making processes and the resultant constitutions, and applies that theory to the events in Libya and Yemen.