“We must never forget that it is a constitution we are creating.”

Since this is my first blog post (ever), I’ll start off with who I am.  My name is Aaron Lang, I’m a 2L at Boston University, and I’m writing now from Cairo, Egypt. I’m here working on a clinic project with Professor Susan Akram and another BU student, Elena Noureddine. Together we represent Boston University’s International Human Rights Clinic, and in collaboration with the Oxford Center for Refugee Rights, we are researching different host states’ treatment of Syrian refugees. It’s my first time in Egypt, and it’s quite a time to be here.

A few nights ago, our team was fortunate enough to attend one of the American University in Cairo’s “Tahrir Dialogues” concerning the drafting process of Egypt’s new constitution. In constitutional law at B.U., you’ll learn a lot about textual interpretation, but you won’t learn much about constitutional creation. That’s because, for our purposes, the creation of our Constitution matters less than the principles it stands for and the effect of those principles on the law. Also, because the founders established our Constitution over 200 years ago, it’s difficult for us to understand what constitutional creation feels like. In Egypt, however, the anticipated final draft of the country’s new constitution has created a political energy that is impossible to ignore. In the dust and debris around Tahrir Square, you can still taste the revolution. The charred buildings, boarded-up subway stations, graffiti-coated walls, and military presence have put immense pressure on Egyptian society, especially in regard to its latest attempt at a constitutional draft.

For the Tahrir Dialogue, the American University in Cairo organized a panel of law professors and scholars from South Africa, Germany, and Kenya. The speakers were critical of the drafting process and frustrated by the latest version’s internal inconsistency and similarity to the original 1971 constitution. The South African scholar, for instance, served as a clerk to the Chief Justice who decided one of South Africa’s most progressive and distinct constitutional law cases—Grootboom. The Grootboom decision interpreted South Africa’s progressively-worded constitutional right to shelter to hold unconstitutional the government’s weak attempts at providing housing for groups of impoverished South Africans. The government’s program would have provided them housing assistance in 20 years time, and under South African constitutional law, the Supreme Court found this program horrendously inadequate. Drawing from that experience, the South African expert criticized Egypt’s draft for lacking adequate protection for socioeconomic rights.

The expert from Germany—a constitutional law professor at Tulane—harshly denounced Egypt’s draft for failing to include a supremacy clause. Visibly frustrated, the professor pointed to three inconsistent provisions. The first stated that “the police were bound by the law and the constitution.” The second provided that “the judiciary was bound by the law” without mention to the constitution. And third, he indicated the glaring lack of a provision binding the military to either the law or the constitution. For a constitution to be a fundamental legal document, he explained, it must clearly state its authority over all state actors. A constitution must be the fundamental source of law and government structure, or it is not a constitution.

The third expert was a member of the constitutional drafting commission in Kenya. He argued for reform in Egypt’s drafting process. The process, he explained, must be more inclusive. The Kenyan constitution, for example, mandates that the each of the 22 executive cabinet members must come from a different tribe. Equality of participation was not easy for Kenya, he said. It was a process that took a considerable amount of time and many visits to villages across the country asking the people what they wanted in a constitution. Egypt, he warned, should not rush the process. Additionally, he argued that constitutional drafters owe a fiduciary duty to their society. It is the responsibility of a drafter to ensure that all Egyptians receive equal protection under the new constitution’s mandate.

Anyone can conclude that drafting a new constitution is the pivotal point in a country’s history. Until this trip, however, I had no idea what that actually meant in practice. Egypt has a long road to recovery, and hopefully, its new constitution will do justice to those who suffered during the revolution in Tahrir.

As a final note, I’m aware that this blog is geared mainly towards prospective students at that critical moment of choosing a law school. In light of that purpose, I want to say that this adventurous side of Boston University’s J.D. program is something I never knew about. You don’t need a top 5 law school to have wild legal experiences. If you have unique career aspirations, B.U. law has the means for you to achieve them. Please stay tuned for more updates as our project unfolds, and enjoy the last few days of autumn!

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