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Egypt's legal revolution

In post-revolutionary Egypt, many activists have shifted their attentions to drafting the next constitution, which they hope will deal a coup de grâce to the nation’s vestigial ills. But such efforts seem misplaced. Constitutions everywhere are seldom panaceas, and no legal document will right the country’s woes until the Emergency Law is abolished.
Tom Francis
17 August 2011
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Ahmed Abd El-Fatah/Demotix. All rights reserved.

On the evening of June 28, in a windowless conference room on the fourth floor of the chrome-fronted Journalists Syndicate in downtown Cairo, an open debate was held on the theme of Egypt’s constitution-to-be. The subject had been hotly discussed – in the opinion pages of the newly assertive press, in pointed communiqués issued by party blocs new and old, and in the endlessly expanding online auditoria – ever since the results of a referendum on March 19, in which 77% of Egyptians had heeded the preferences of the interim military council by approving a timetable for elections this year. In pushing a ‘yes’ vote, which called for parliamentary elections to be held before the drafting of a new constitution, the provisional government, known as the Supreme Council of the Armed Forces (SCAF), had hoped to speed the transition to civilian rule, leaving its reputation, not to mention its sizeable economic interests, intact and free from scrutiny. Liberal groups, meanwhile, had backed a ‘no’ vote for fear that early elections would inhibit their own electoral chances compared with those of better-organized Islamists. But the result of Egypt’s first democratic vote in over a generation had anything but put the issue to rest. Instead, critique and questions abounded. Could a ‘constitution first’ mandate be salvaged? If so, what was best retained of the 1971 original plus subsequent amendments, and what demanded re-writing? And to whom should the responsibility of constitutional authorship fall: a constituent assembly of legal scholars, or a committee of freshly elected parliamentarians, less expert perhaps, but more representative of and accountable to the desires of Egyptians?

Later that night, pitched battles would break out between protesters and black-clad riot police in nearby Tahrir Square, the first such violent clashes since the 18-day popular revolt in January and February. Lasting through the night and into the following day, the fighting – marked by the use of tear gas and rubber bullets – produced more than 1000 injuries, as later reported by local hospitals. The relatively placid lull, beginning in late April, in Egypt’s otherwise volatile interregnum had clearly come to an end. As I photographed the rock throwing that night, various wide-eyed would-be revolutionaries in my midst blurted out, ‘The fun has returned… the thawra [revolution] is back!’ As word of the clashes got out, via texts and tweets, Egyptians from neighbourhoods near and far converged on the Square, contributing to scenes part frontline, part revolutionary Kabuki: medical orderlies tending to the injured while ardent youths snapped every spent gas canister from every possible angle for proof of US manufacture (as if it were ever in doubt).

The fighting had been set off by arrests of family members of the ‘martyrs’, the 850 officially acknowledged young men and women who died during the revolt. Their mothers and fathers, siblings and spouses had been protesting outside the Interior Ministry against the leaden pace of the trials of the state security officers accused of their killing. Shortly thereafter, what would become three weeks of near-continuous sit-ins, marches, and sloganeering started up in the Square, with the night of the 28th heralded as the protest’s nascent moment.

But at 6pm that evening, ‘revolution redux' was far from the minds of those at the constitutional debate. Was it mere coincidence that many who had been in Tahrir earlier in the year, and prominent in their activism since, were simply not tapped in to this particular strain of popular fury? Or was it that the constitution meant everything to some, and much less to others, while both parties could equally claim to have been revolutionaries? In short, to whom did the thawra belong?

‘Our Constitution’

The Journalists Syndicate shares a city block with the Court of Cassation, the Lawyers Union, the colonial-era Judges Club, and the neo-classical High Court. As such, it would not have been unreasonable to assume that the debate had been organized by forward-thinking jurists, or, at the very least, that the majority of those in the audience were judges, lawyers, or other advocates with a mind for the particulars of jurisprudential tinkering. Not so, it seemed. Instead, it was the building’s proximity to Tahrir, the symbolic polestar of the revolt that brought down the government of former President Hosni Mubarak, which determined the makeup of the attendees. Standing before a hundred-strong crowd of writers, TV journalists, civil society types, and bloggers, Alaa Abd El Fattah, an Egyptian activist and well-known ‘Twerp’ (the double-edged label conferred on those boasting a well-regarded or simply ubiquitous presence on Twitter), introduced the debate before launching into its first polemic, his own. The goals of the evening’s discussion, he said, would be to sketch out the parameters of a social contract that would inform the writing of the constitution by a constituent assembly either before or after parliamentary elections this year. On top of that, the debate – which was aptly if proprietorially titled, ‘Our Constitution,’ and had in fact been organized by the Hisham Mubarak Law Centre, an Egyptian NGO whose offices had been raided by state security on February 3, resulting in 28 arrests – would begin to script a draft constitution based on popular consultation.

The debate was amiable. Many in the audience had also attended a series of public workshops – ‘Tweet Nadwas’ – which vaunted the part played by Twitter as an information-sharing platform both during and after the revolt. (At the Nadwas, speakers were given 140 seconds – corresponding to the maximum character count in a single Tweet – to expound on some subject of great import in transitional Egypt, or to share an experience of police hostility in the face of the popular ‘revolution.’ The workshops continued in a makeshift tent in the wake of a particularly sizeable demonstration in Tahrir on July 8.) As such, few in the crowd said anything that was not wholly tolerable to the rest. Questions were earnest and well-meaning: how to enshrine basic rights, including those of minorities, in the constitution? How to collate people’s views from every governorate, not just elite Cairo? And how to exploit the semiopaque electoral law to ensure that the constituent assembly, which would be drawn from the cohort of new parliamentarians, reflected the demands of the liberal crowd?

Nearly every question, however, betrayed the same tacit assumption: that the constitution-to-come would add up to some kind of panacea, an unassailable bulwark against any repeat of the kinds of abuses perpetrated by the Mubarak regime: arbitrary arrest and incommunicado detention, torture, profiteering, election rigging, and more. But Egypt has been through eight constitutions in the course of the 20th century, and they have not always ensured political rectitude. Moreover, they have almost all been revised at regular intervals: the most recent document, in effect from 1971 until its suspension earlier this year, was the object of at least three major sets of emendations since its first ratification, and many smaller changes besides. Was the evening’s debate missing a trick in assuming that the next constitution would not also change in shape and content according to shifts in the political winds in the years to come? The renowned Lebanese lawyer and scholar of Islamic Law, Chibli Mallat, put this proto-constitutional maneuvering in context when he told me: “Pamphlets in the first months of the French Revolution numbered in the thousands, and in Iraq in 2004 thousands of constitutional proposals were tabled.” A slightly naive optimist would naturally revel in such new-found constitutional zeal, especially after thirty years of political repression. And he would be right to do so. A more sober spectator, however, might infer from Mallat’s comment that the majority of such initiatives - whether originating in the Bastille, or in Tahrir - do not find their way into the final product. And he would be right too.

‘Islam is the religion of the state’

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Demonstrations in July. Tahrir Square. Ahmed Abd El-Fatah/Demotix. Allrights reserved.

The last three months have seen such a proliferation of statements of 'constitutional principle’ that it can be hard to distinguish between them. There have been proposals from the newly founded National Council, National Association for Change, National Accord Conference, Popular Constitution Committee, and Democratic Coalition for Egypt (which itself incorporated recommendations from eighteen other groups), as well as from the National Council for Human Rights, likely presidential candidate Mohamed Al Baradei, the Grand Sheikh of Al Azhar seminary, and, latterly, from an untitled committee tapped by the SCAF itself. Some of the same figures have had a hand in the drafting of several of these declarations, and it shows; many read like a revised version of the statement that most immediately preceded it.

A number of vexed issues have arisen nonetheless. One of the most salient concerns Article 2 of the previous constitution, which was amended in 1980 by President Anwar Al Sadat under Islamist pressure. (An "Islamic Jihad"-sympathizing army officer would assassinate Al Sadat the following year. Article 2 remained as changed.) It reads: “Islam is the religion of the state (…) and the principles of Islamic Shari’a are the main source of legislation” ( my emphasis). This dictum frightens many, not least among the Coptic Christian community, Egypt’s largest confessional minority, who fear the establishment of an Islamic state that would impinge on already precarious personal status rights. Their unease is hardly soothed by the specter of electoral success by Islamist parties ranging from the long-established and more moderate Muslim Brotherhood to more puritanical Salafist parties such as the ‘Revival’ and ‘Light’ parties.

As a result, the Popular Constitution Committee recommended that Article 2 be rescinded altogether. Al Baradei and the National Council retained the article in their documents, but Al Baradei’s statement insisted that every basic right guaranteed in his “Declaration of Political Rights,” including the freedoms of belief and of association (stipulations which are not absent from the 1971 constitution, it should be noted) could not be amended or removed, and that any attempt to do so would amount to an extra-constitutional crime. The National Council, meanwhile, which includes Tahany Al Gebali, the first female judge to serve on Egypt’s Supreme Constitutional Court (SCC), as well as twenty-two other jurists, proposed on May 7 that the constitution incorporate a ‘trip clause’ whereby the army would intervene on behalf of the population to safeguard the democratic and civil character of the nation if it were threatened by, say, an Islamist takeover. At the time, Al Gebali told the Al Masry Al Youm newspaper, “Setting these principles is important to make sure that the constitution, once it’s set, is safe.” Given the acrimony directed against the military government by protesters in Tahrir and elsewhere in the country, however, the proposal has received a less than enthusiastic response in the weeks and months since. Indeed, when the committee, formed at the behest of the SCAF, headed by none other than Al Gebali herself and including representatives of both Al Baradei and the sheikh of Al Azhar, published its recommendations on July 19 it included no such role for the military. Instead, in an insidious manoeuver, the committee announced that the army would retain the authority to amend or disregard any of the proposed ‘guidelines’ before ratifying the subsequent constitution, effectively granting it a one-time right to veto. Al Gebali told the New York Times, “The history of the Egyptian military cannot be questioned, and we are confident they will look into the matter in the context of the public interest.” An impolitic statement to say the least at a time when protesters in Tahrir were calling for the removal of both the head of the SCAF, Field Marshal Mohamed Hussein Tantawi, as well as his appointed Prime Minister, Essam Sharaf. What had prompted protesters to change their allegiances so dramatically in the four months since Sharaf's appointment by popular consent on March 3? If the placards and other signage in Tahrir Square was anything to go by, demonstrators sought an end to impunity - namely, justice for the ‘martyrs’ - and an end to punitive Emergency Powers.

Such is the irony of the constitutional debate in Egypt; by the time the military came around to the idea of  enshrining basic rights in the text they had lost much popular favour. At the other end of the spectrum, meanwhile, Essam Al Erian, leader of the Brotherhood’s newly formed Justice and Freedom Party (avowedly religious parties were outlawed under Article 5 of the previous constitution) denounced any such document or declaration as contrary to the spirit of democracy. Sobhi Saleh, an Alexandria appeals lawyer and Muslim Brother who sat on the expert panel which identified articles for amendment in the referendum, put it more forcefully: “The Brotherhood won't stop and won't be silent and won't accept anything but the complete implementation of Islamic Sharia law." Al Erian has sought to assuage the fears provoked by such strident assertions by pledging to run candidates in no more than fifty percent of parliamentary seats, and even the Associated Press reported in June that “the party’s vision for a new constitution mirrors that of most liberals.” Moreover, the Brothers have dropped some of their more inflexible demands of recent years, such as calling for a council of religio-legal experts to advise the president. But as the law professor and expert on the jurisprudence of the SCC, Clark Lombardi, put it in an email: “Retaining Article 2 as a basic constitutional principle will be controversial among some parts of the Egyptian population. However, I think that not retaining Article 2 would be an even bigger problem with an even bigger part of the population.”

What if all this posturing - from the liberals to the Islamists to the military - misses the point? The 1971 constitution is not so barbaric in word, including such liberal provisions as the freedom of speech, freedom of the press, the independence of the judiciary and the separation of powers. Meanwhile, it is commonly accepted by legal scholars that the SCC has developed a ‘restrictive’ approach to Article 2. This means that the court considers the number of principles that Egyptian law derives from the Sharia, and that are therefore untouchable by legal interpretation, to be very few. Moreover, the court has historically reached a happy medium between the injunction to enact public policy ‘Islamically’ and its other constitutional requirements to respect democracy and liberal rights. As a consequence, few rights abuses have directly resulted from Article 2. In many respects, the retention of the article is the least of Egyptians’ worries. Instead, it is worth asking what enabled the Mubarak government to abuse its powers in spite of the constitution? After all, even democratic institutions can yield undemocratic outcomes.

Emergency Law in Egypt 

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Ahmed Abd El-Fatah/Demotix. Allrights reserved.

Emergency Law in Egypt has been in effect continuously since 1981 (and on and off since 1958 in its present shape). The 1971 constitution endowed the president with the right to declare a ‘state of emergency,’ and thereby suspend the Criminal Procedure Code (which requires the need for warrants in order to make arrests, for example) for a limited time and in keeping with the law. The Emergency Law’s wording, however, is so broad as to incorporate almost any offense, real or imagined, within its writ. It is worth quoting at length:

The president may “Restrict people’s freedom of assembly, movement, residence, or passage in specific times and places; arrest suspects or [persons who are] dangerous to public security and order [and] detain them; allow searches of persons and places without being restricted by the provisions of the Criminal Procedure Code; and assign anyone to perform any of these tasks… [He may] order the surveillance of letters of any type; supervise censorship; seize journals, newsletters, publications, editorials, cartoons, and any form of expression and advertisement before they are published, and close their publishing places.”

It is this law that allowed Mubarak to arrest and detain thousands of Islamists and political opponents alike, circumventing the criminal code and denaturing the judiciary in the process. This same law, moreover, has allowed the SCAF to try an estimated 10,000 people in closed military tribunals since February of this year. In a military tribunal, and in the state security courts that ran until 2003, which primarily tried terrorism-related cases, there is no transparency; courts are closed to the press, and defendants are often tried without representation, before a military judge who, until earlier this year, was appointed at the behest of the president. And rulings are un-appealable.

In theory, the most recent parliamentary order authorizing Emergency Law was due to expire this year, and the SCAF has stated that it intends to repeal the law before elections in October or November. In which case, what’s the problem? In the last constitutional referendum of the Mubarak era, in March 2007, the President secured the codification of the Emergency Powers in the constitution (previously, declaring a ‘state of emergency’ had only been a statutory power), as well as exemptions from articles 41, 44, and 45, which protected against warrantless arrest, warrantless home entry, and warrantless seizure of correspondence, respectively. Under new article 179, Mubarak could “refer any crime of terrorism to any judicial authority under the Constitution or the law.” Emergency Powers had effectively been made permanent, and the President’s recourse to them easier than ever. What, then, would now serve as that insurmountable bulwark – precisely what the ‘constitution first’ and ‘basic principles’ activists are seeking - against executive abuse on this scale? The answer, unfortunately, is not the constitution-to-be. Proof of this can be seen in the relative ease with which an autocratic regime opportunistically exploited a (far from illiberal) constitution, again and again. Might it not befit the ‘Our Constitution’-alists to concentrate their efforts on ending Emergency Law and military trials first before moving on to elections and, finally, to the next constitution?

The judiciary: a bulwark

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Egyptians Demonstrate for Unity and Stability. Adham khorshed/Demotix. All rights reserved.  

Insofar as there is to be a bulwark, it will come in the form of the judiciary. A hero of the judicial independence movement in Egypt, Hesham Al Bestawisi, is now running for president on an open platform. Al Bestawisi, a former vice-president of the Court of Cassation, was indicted in 2005 along with a colleague, Mahmoud Mekky, after they resisted the regime’s attempts to restrict the judiciary’s constitutionally-enshrined role of overseeing parliamentary elections, and accused the government of engineering that year’s results. (Incidentally, the judge who acquitted Al Bestawisi of the charges against him in 2005, Ahmed Refaat, is now presiding over the trial of Mubarak.) The example of Al Bestawisi, who spent the last few years in a kind of exile in Kuwait, is but one in a long history of admirable independence on the part of the Egyptian judiciary. A common reading of the use of Emergency Powers, for example, is that it has enabled the ordinary judiciary, in particular the SCC, to pursue a liberal agenda in other spheres. And both the Court of Cassation and State Security courts have on occasion acquitted defendants referred to them by the government itself.

Meanwhile, Ahmed Mekky, the head of the Alexandria Court of Cassation, and a fierce advocate for the independence of the judiciary, has campaigned for a new judicial independence law, in partnership with another former Court of Cassation VP, Mahmoud Al Khodeiry, himself a vocal opponent of military trials. This law would free the existing judicial authority law, which includes the appointment and oversight of judges, from the authority of the Ministry of Justice, a part of the Executive branch. Oversight would then transfer to the Supreme Judicial Council, the country’s preeminent judicial institution.

None of these men were in the Journalists Syndicate on the night of June 28. Perhaps they were averse to Twitter-speak, or perhaps they simply recognized that whatever comes of the next parliament and the next constitution, the process of creating an accountable democracy in Egypt will take some years of organizing parties, pushing platforms, and, yes, the hardscrabble and far from immediate gratification of (rhetorical) fights in parliament. Or who knows, perhaps they were in the square, hitching up their robes the better to fling a rock or two?

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