Egypt's transition in the light of Niklas Luhmann

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Egypt's transition in the light of Niklas Luhmann
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    Egypt’s transition in the light of Niklas Luhmann   Law, Governance and Democracy module paper Adham Essam University of Warwick 2015 Words: 3,920    Egypt’s transition   2 Egypt’s transition in the light of Niklas Luhmann Introduction.................................................................................................................................................... 2   1. Background ............................................................................................................................................... 3   February 2011 to June 2012: fall of Mubarak and election of Morsi ..................................................... 3   June 2013 to present: fall of Morsi and election of Sisi ......................................................................... 5   2. Contextualising the Luhmann framework.................................................................................................. 7   2.1 Interdependent legal and political systems ......................................................................................... 8   2.1.1 Egypt’s Supreme Constitutional Court: stabilising normative expectations ................................ 11   2.1.2 Judicial Partisanship ................................................................................................................... 14   2.2 Emergence of the military as a societal system ................................................................................ 15   3. The Constitution: structuralisation and globalisation .............................................................................. 17   Conclusion................................................................................................................................................... 21   Bibliography ................................................................................................................................................ 22   م  ظنل   ط  قس ديري   عشل “The people want the fall of the regime”  (Arab Spring slogan) Introduction In 2011 the people of Egypt rejoiced in the belief that they had brought down the regime. However, in retrospect it would seem that they only succeeded in unsettling the status quo ante. What ensued was a process of transition defiant of prediction, and what remains is a complex social climate in Egypt void of any certainty for its future. It would be appropriate, then, to consider an analysis of Egypt’s transition in Luhmannian terms. Niklas Luhmann considered that societies are infinitely complex, that no theory    Egypt’s transition   3 could ever give a full account of a society, and therefore that every theory of society would involve a degree of reductionism. With this concession in mind he attempted, instead, to offer a theory which “embraced the possibility of infinite theories … a social theory of social theories” 1, and was capable of wide interpretation and application. In line with Luhmann’s  theory, this paper will follow an examination of selected features in Egyptian society, utilising its social systems as units of sociological analysis, rather than its people and groups of people (which have already attracted much mainstream media attention, not once offering full explanations of the status quo  , ex ante or ex post  ). The objective is to explore, and perchance to explain, the complex social climate in the light of Luhmann ’s theory, having particular regard in the discussion to the emergence of the military as a social system and the judiciary as a dedifferentiated system. 1. Background February 2011 to June 2012: fall of Mubarak and election of Morsi President Mubarak stepped down in February 2011 in response to widespread civil uprising and the military elite assumed the role of a transitional government in the form of the Supreme Council of the Armed Forces (SCAF). It proposed a series of constitutional amendments to the then in force constitution of 1971. The head of the 1  Michael King and Chris J Thornhill, Niklas Luhmann’s Theory of Politics and Law   (Palgrave Macmillan 2003) 1    Egypt’s transition   4 body which drafted the constitutional amendments, Tarek El-Bishry, asserted that the “legitimacy of SCAF [to propose constitutional reform] was ‘revolutionary’ rather than ‘constitutional’” 2 . The amendments later achieved 77 percent approval at referendum. However, instead of simply enacting the amendments a s approved by referendum, “on 30 March 2011, SCAF promulgated a constitutional declaration of 63 articles. Crucially, the amendments to the 1971 constitution and the constitutional declaration were not exactly the same.” 3  Article 56 of the constitutional declaration stipulated that SCAF was the only body which could enact legislation 4  and article 60 set forth the process by which a new constitution would be written. 5  In autumn 2011 the Deputy Prime Minister proposed a list of ‘ inviolable ’  constitutional principles which reflected normative human rights and rule of law paradigms. Parliamentary elections were also held which resulted in an Islamist majority between the Freedom and Justice party (the political representation of the Muslim Brotherhood) and the Al-Nour party. It is to be noted that, while both these parties associate themselves with Islamism, they are not homogenous in their views. 6  As a result, the elected constitutional assembly was dominated by Islamist members - an outcome to which many groups objected and brought a complaint to the Supreme Constitutional Court (SCC) which ruled against the assembly, resulting in its disbandment. 2  Tarek El- Bishry, ‘Egypt’s new legitimacy’ Guardian   (21 March 2011) 3   Lang A, ‘From revolutions to constitutions: the case of Egypt’ (2013) 89(2) International Affairs 345, 357   4  Constitutional Declaration 2011 of the Arab Republic of Egypt ( Al-Ialaan    Dusturi 2011 Juinhuriyat Misr al-Arabiyah  ), art 56 5  ibid art 60 6  Lang (n 3) 359    Egypt’s transition   5 On 30 June 2012, President Morsi was elected and shortly thereafter issued a decree giving himself sweeping powers to legislate until the constitution was finalised: “The president can issue any decision or measure t o protect the revolution … [and ] the constitutional declarations, decisions and laws issued by the president are final and not subject to appeal." 7  The SCC also declared this decree unlawful on the basis that such power would “fundamentally question, from both a political and a legal perspective, the premise of Egypt’s entire political architecture.” 8  The 2012 constitution was approved by referendum in December 2012, obtaining 64 percent approval from a 33 percent voter turnout. 9    June 2013 to present: fall of Morsi and election of Sisi In June 2013, popular dissent against the government culminated in opposition rallies against Morsi on 30 June. Due to increasing tension, on 1 July the military issued a 48 hour ultimatum for the president to address the protesters ’  demands. After failing to reach a resolution on 3 July the army announced the dissolution of Morsi’s government. An interim government again took control under military supervision and selected a ten-member panel to draft a new constitution. 10   7   Richard Spencer, ‘Mohammed Morsi grants himself sweeping new powers in wake of Gaza’ Telegraph (22 November 2012) 8   Oliver Housden, ‘Egypt: Coup d’Etat or a Revolution Protected?’ (2013) 158 The RUSI Journal 72   9   ‘Egypt constitution ‘approved’ in referendum’ BBC (23 December 2012) <http://www.bbc.co.uk/news/world-middle-east-20829911> accessed 15 April 2015 10   ‘Egypt’s interim president forms committee to amend constitution’ CBS News   (20 July 2013) <http://www.cbsnews.com/news/egypts-interim-president-forms-committee-to-amend-constitution> accessed 15 April 2015
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