Richard Stacey, Faculty of Law University of Toronto
12:30 – 2:00 p.m.
Thursday, February 5, 2015
Room 101, Victoria College
Constitutional Law in the Absence of Constitution: Power in the Revolutionary Interregnum
In early February 2011, the Egyptian armed forces assumed executive control of Egypt and suspended the 1971 Constitution. A group of academics was mandated to propose amendments to the Constitution which, once approved by referendum on 19 March, became Egypt’s ‘interim’ Constitution. A process for the drafting and adoption of a new constitution was initiated, and the 2012 Constitution was adopted by referendum in December 2012. The armed forces again assumed executive control in July 2013 and suspended the 2012 Constitution, with another new constitution approved at referendum in January 2014. During both periods of military control, it remains unclear what replaced the suspended Constitution as the country’s foundational legal instrument. The Egyptian case is an example of constitutional interregnum, where political authority is exercised in the apparent absence of any formal constitutional foundation for political authority. This paper focuses on these periods of constitutional interregnum, exploring through a number of contemporary and historical cases how the gap left by the suspension of a constitution during a period of constitutional replacement is filled. The paper argues that even without a formal written constitution, a governing body’s authority and the lawfulness of its conduct depends on adherence to supra-constitutional principles derived from the commitment to constitutional democracy itself. Because a democratic constitution claims to speak for the whole people, the law in force during the constitutional interregnum and which governs the drafting of a new constitution must, at least, treat all and each of the people as equals and affirm a democratic right to representation in the drafting process. Any meaningful claim to be exercising authority in the name of the people – a claim to the authority of popular sovereignty – implies a commitment to a set of principles capable of constraining and directing the groups or individuals who exercise authority. These principles provide a constitutional foundation for government and for the legal system during the interregnum, ensuring both a benchmark for lawful government and legal continuity.
Richard Stacey served as Director of Research at the Center for Constitutional Transitions at NYU Law until joining the Faculty of Law at the University of Toronto. He holds a PhD from New York University’s Institute for Law and Society and bachelors degrees in political theory and law from the University of the Witwatersrand in Johannesburg, South Africa. He served as law clerk to Justice Kate O’Regan and Justice Bess Nkabinde at the Constitutional Court of South Africa, and has taught courses in political theory, constitutional law, administrative law and human rights at the University of Witwatersrand, the University of Cape Town and the City University of New York Law School. In 2009 he was a research consultant during Kenya’s constitutional review process and has remained involved in constitutional transitions around the world, providing technical advice through the Center for Constitutional Transitions in Tunisia, Libya, and Egypt. His work has appeared in a number of journals of law and political theory, the multi-author reference work Constitutional Law of South Africa (of which he acts as co-editor), and in books on constitutional design, land reform, and women’s rights.
A light lunch will be provided.