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Constitutional fortitude

White & Case associate Tamer Nagy Mahmoud reflects on his two-year secondment in the vortex of the constitutional transition process in Egypt.

"Could you help us understand the US military justice system?" asked a member of Egypt’s Constituent Assembly charged with drafting a new constitution in 2012. "Sure," I replied, "I could prepare a memo for you on the topic by tomorrow." "No," he replied, "I need you to give a presentation to the Assembly on the topic as part of today’s discussions on the military trial provisions. You have half an hour to prepare." With the help of research associates in Washington, DC (and vague memories from law school), I managed to prepare a short presentation on the subject and respond to the questions of the Assembly members.

Few people are fortunate enough to witness their country go through a revolutionary moment; even fewer are lucky enough to participate so closely in two constitutional processes in the span of two years.

That incident was not unusual during the two years I spent in Cairo on secondment with the Public International Law & Policy Group (PILPG). Based in Washington, DC, PILPG provides pro bono legal services to governments and non-state entities around the world in various areas of law, including constitutional and legislative reform. When PILPG explored the idea of providing their services in Egypt during the post-Mubarak transition, I jumped on the opportunity to represent them in Cairo. White & Case welcomed the idea, approved my secondment and provided all the support needed to make the project happen.

I was asked to launch the project in Cairo and hire a small local team of young lawyers to provide the in-field support. I was fortunate to also have an excellent team of research associates at PILPG who conducted the research and drafted most of the memoranda that were ultimately delivered to the clients in Egypt. In addition, lawyers in several international law firms, including White & Case, provided additional pro bono research to the project on select topics as needed.

Becoming a trusted adviser

Initially, my work was largely with Egyptian civil society organizations that were preparing their advocacy platforms for specific constitutional and legislative reforms they wanted to accomplish in the post-January 25, 2011 democratic transition. Once I started engaging with the various reform stakeholders, however, I also began to advise members of Parliament, political parties and the Constituent Assembly.

Egypt has a rich constitutional history, a sophisticated legislative system and an active civil society that has some of the most impressive experts in their fields. Nonetheless, our clients in Egypt were greatly interested in learning about the reform experiences of other countries. Most of the work product we delivered in Egypt provided comparative models or an analysis of the international best practices in particular areas of law. Over the course of the two years, I delivered to clients approximately 200 memoranda on a wide range of constitutional and legislative topics. Some dealt with basic constitutional rights and freedoms, such as how to balance the right to peaceful demonstration against the state’s responsibility to preserve public order. Others involved more technical questions, such as how to best structure freedom of information legislation. In many instances, the work went beyond simply providing a primer on the topic and required more in-depth assistance drafting or commenting on constitutional and legislative texts.

At the end of the workday, I would leave through the same hole in the wall, change my suit and tie, and join the crowds of Egyptians who were frustrated with the very Assembly I was advising during the day.

Given the fast pace and constant change of the political transition in Egypt, the client requests were prolific and always urgent. There was rarely enough time to deliver one memorandum before a handful of other requests arrived. Moreover, it was challenging to navigate the various actors, the polarized competing political camps—with not-always-so-clear battle lines—and the myriad institutions that all play a role in the reform process at some level. Gaining the trust of a client is always a challenge for any lawyer anywhere, but adding these layers of political and historical complexity made it even more challenging.

A personal dilemma

I tried always to provide objective, nonpartisan advice that could be shared with all parties equally. However, being Egyptian myself, I also had my own biases and views of the future I envisioned for my country, which sometimes led me down some schizophrenic paths. I recall my angst during my work with the Constituent Assembly in 2012, which was heavily dominated by Islamic extremists whose worldview was very different from mine. Their exclusionary methods had driven most of the liberal members to boycott the Assembly, which raised serious questions about the legitimacy of the constitutional process in the absence of any real opposition or any genuine representation of the diverse factions of Egyptian society. There was no better metaphor for the disconnect between the constitutional process taking place inside the halls of the parliament building and the rest of the disenfranchised public than how the streets around the parliament building were closed off with huge cement-block security barricades. The only way for citizens and even parliamentary staff to get to the parliament building—and to their legislative representatives—was to pass through a small hole in one wall along the barricades. I walked through that hole in the wall every day to reach the parliament building.

Clearly the constitutional process was not ideal. It certainly did not meet my aspirations for a democratic Egypt. But as long as Assembly members continued to seek our help, I felt I could contribute to the process, even if only with small, incremental improvements. Being present to witness first-hand the discussions of the Constituent Assembly also allowed me to provide more informed advice to civil society groups and opposition political parties that were advocating against certain aspects of the proposed constitution.

The second wave of reform

Less than a year later, millions of Egyptians took to the streets demanding the suspension of this constitution and the ouster of President Mohamed Morsi. Once again, I found myself at the intersection of an evolving transition where previous opposition and civil society are now leading the transitional government and drafting an amended constitution for Egypt. I was privileged to have the opportunity to also participate in this second wave of reform and advise on the new constitutional process.

The Egyptian transition toward democracy has been messy, complicated, nonlinear and far from ideal, to say the least. It was hard not to get bogged down in the frustrating daily details and disappointments. Nevertheless, when I stop to recognize the incredible work and the resilience of the Egyptian men and women who have dedicated their lives to the arduous process of reform, I am inspired and reminded that as long as such people continue to fight for a better Egypt, Egypt is bound to keep moving forward. I was honored to work with such inspiring individuals, and I am grateful to have had this experience of a lifetime.


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