Egyptian President Morsi has faced substantial international and domestic criticism for his leadership over the past months in the drafting of the new Egyptian constitution. Out of this criticism two of many objections arises: that Morsi is overstepping his remit as an executive, and that in drafting the constitution, largely successful attempts were made to enshrine the document in Islamic law. Both claims could be substantiated, but in light of history Morsi’s leadership could hardly be faulted as extraordinarily authoritarian or unjustified. In fact, one might argue that his leadership and its effects are a muted and moderate answer to the history that precedes him.
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Firstly, Morsi’s opponents argue that he oversteps his executive remit. Throughout Egypt’s modern history, however, there seems to have been more gross abuse of power. The first use of ‘exceptional’ courts, i.e., military courts with no appeal, occurred in 1952. Throughout the regimes of Nasser and Sadat, Egypt primarily operated under emergency law rule. In 1969, under Nasser, Egypt’s Supreme Court was subordinated to executive power when presidential judicial nominations only lasted three years each, thus directly subject to executive reprimanding. In the 1990s, Mubarak’s regime often turned to military and special courts in order to circumvent the authority of the judiciary, with Mubarak often implementing emergency law as well. Throughout the 20th century, a constant tug of war has played out between executive and judiciary.
Morsi invoked the most controversy when he issued a decree in November granting himself supreme executive and legislative power, along with broad powers over the court system, until the constitution was finally ratified. As the Supreme Court voiced vocal disagreement and Egyptians engaged in protests reminiscent of the recent revolution, Morsi scaled back the magnitude of his decree. Later, he even apologized, a step quite progressive in comparison to his predecessors. The scope of his actions surely pales compared to previous presidents.
Secondly, in arguing that the constitution drafting pursued an agenda of implementing Islamic law, Morsi critics ignore the Egyptian civil code and Egypt’s innovative legal history. His opponents argue that the initial assembly charged with drafting the constitution was dominated by Islamists, and even after being reshuffled by the courts, still pursued an Islamic agenda. Regarding the first claim, it’s perhaps useful to take a look at the early stages of Egyptian judicial history. Jurist, politician and legal architect Abdel-Razzak al-Sanhuri, primarily responsible for engineering Egypt’s 1949 civil code (and later, drafting legislation for Syria, Iraq and Bahrain, amongst others), did not shy away from Islamic law when formulating Egypt’s statutory underpinnings.
A brief history review shows that the Ottoman Empire and Egypt were credited with legal reform in the late 19th century Middle East. In fact the Egyptian model of codes and courts was subsequently reflected in systems throughout the Arab world. Sanhuri joined a group of scholars tasked with creating Egypt’s civil code in order to operate under a national court system, as the Egyptians saw a need to unify several existing civil codes in the process of state-building.
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Sanhuri studied his doctorate in France, producing doctoral dissertations that championed the law as a means of achieving social justice. Beginning in 1936, Sanhuri and his colleagues began drafting a civil code, initially attempting to create a document that reflected a balance between Islamic law and modern law, striking a balance between social justice and individual rights. He in the end concluded that what he had produced bore less resemblance to Islamic law, but nonetheless still incorporated the spirit of Islamic thought into the draft. In fact, he argued, “The code is a great victory for Islamic law, especially if we keep in mind that all its articles could easily be argued to represent principles of Islamic law. And so, notwithstanding the existence of gaps in the code, our judge only has two options: either he applies codified articles that do not conflict with Islamic law, or he applies the very principles of Islamic law.”
Sanhuri’s civil code came into being in 1949, and remains in force in Egypt today. The Supreme Court, in whatever form the new constitution proposes to structure the government, will still deliberate on the basis of the Civil Code principles. The spirit of Islamic law has by no means been absent up until this point, and the new Egyptian constitution won’t be the first document to manifest its principles.
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Clearly, Morsi, and few political leaders in fact, can be held above reproach. It certainly cannot be claimed, however, that his actions unfold in an arbitrary and unprecedented way, riding on the waves of an insurgent political party. Instead, he operates with a comparatively less radical agenda, one that hopefully will represent as best it can the interests and mandate of the Egyptian people.