January 27, 2014
Tulane Law Professor Jörg Fedtke discusses the Egyptian Constitution at a panel at The American University in Cairo in November 2013.
Egyptian voters’ recent overwhelming approval of a new constitution was expected, but the document “does not reflect the desire for change” expressed by the 2011 revolution, Tulane Law Professor Jörg Fedtke said. Fedtke, who also has advised on constitution-building in Iraq, Kirkuk and Tunisia, was back in Egypt as part of a Carter Center mission for the referendum that took place Jan. 14-15.
Two years ago in Cairo, at a panel discussion about election law, “You could feel the energy, the excitement, the enthusiasm,” said Fedtke, the A.N. Yiannopoulos Professor in Comparative and International Law and co-director of Tulane’s Eason Weinmann Center for International and Comparative Law. But he called the new constitution “a very backward-looking document” that draws heavily on a 1971 predecessor and “entrenches the position of well-established stakeholders such as the judiciary and the Armed Forces.”
He said efforts to shore up support for the text may have created new problems. For instance, any law that impacts constitutional rights and freedoms will require support by two-thirds of the House of Representatives members, a well-intentioned safeguard that’s unlikely to work unless lawmaking degenerates into rubber stamping, he said. “It is the kiss of death for a fledgling democracy.”
Fedtke’s hands-on international work in some of the world’s most volatile regions enables him to give students direct insight into the difficulties of drafting workable laws, understanding cultural distinctions, persuading obstinate leaders to negotiate and promoting the rule of law in troubled nations.
“This is comparative law in action,” said Fedtke, who also teaches the Berlin Summer School, which focuses on international negotiation and mediation. “Media reports rarely convey what really happens behind closed doors. Faculty involvement in these developments provides our students a rare opportunity to look behind the scenes.”
Tulane boasts one of the strongest programs in comparative and international law in the United States.
Fedtke has presented analysis of the 2012 Egyptian Constitution and the most recent version at The American University of Cairo and for human rights organizations organized by the International Institute for Democracy and Electoral Assistance (IDEA). His work with the Carter Center includes a report assessing the constitution-building process.
Egypt’s 2012 constitution was suspended after a military coup ousted elected Islamist President Mohammed Morsi in July 2013. The overhauled document contrasts significantly with the constitutions of other nations. For instance, the U.S. Constitution is paramount, and all other laws must comply with it. But that formula is not in the Egyptian Constitution, and the military, in particular, is not bound by it, Fedtke said.
In addition, he said, “A lot of detail you would expect in a modern constitution, including the number of judges that sit on the Supreme Constitutional Court and ways that parties can access that body, is left to the legislature.”
Fedtke, who was born in Tanzania to German parents, was educated in Zambia, the Philippines and Germany. He taught at University College London and UT Austin before joining the Tulane faculty in 2009.
His expertise has been tapped frequently: He was an outside expert for the UN in drafting the Iraqi Constitution of 2005 and for several years has been a legal adviser for the German Foreign Office in Kirkuk, trying to get Kurdish, Arab and Turkmen factions to work together in the Provincial Council to improve basic government services such as housing, healthcare, waste management and schools. Fedtke also was asked to analyze human rights and decentralization provisions in drafts of the emerging constitutional settlement in Tunisia that recently was voted on.
One of the biggest challenges in Kirkuk, he said, was convincing lawmakers that they could take local control instead of waiting for action from Baghdad, as the old legal system had long required. “A constitution is just paper at the end of the day,” Fedtke said. “You have to change the hearts, the minds, the thinking of the people.” One way of doing that in Kirkuk lies with younger generations not mired in their country’s old divisions, he said. “To focus on the next generation is the best chance that this country has to succeed.”
An idea that hatched from the work there was a collaboration involving the law faculty and students at the University of Kirkuk and experts from outside the country to focus on key questions of constitutional and administrative law. “Service provision, in particular, remains a huge problem despite the large amounts of money that are available from oil and gas sales,” he said. “Outside expertise, coupled with local knowledge, may offer persuasive ways out of this crisis.”