How does the Egyptian authority manipulate the legal legacy to create flexible authoritarianism whereby it is possible to choose several legal texts that are all fit to try an opponent and impose a punishment the authority deems appropriate against its antagonists?
How does the Egyptian authority manipulate the legal legacy to create flexible authoritarianism whereby it is possible to choose several legal texts that are all fit to try an opponent and impose a punishment the authority deems appropriate against its antagonists?
Amr Abdurrahman, an Egyptian researcher and academician, a professor at the Department of Law in the American University in Cairo, and Director of Civil Liberty Unit at the Egyptian Initiative for Personal Rights, re-evaluates the post-Mohamed Morsi situation. He believes that the democratic and civil forces were the first losers, even more than the Islamists, starting with the first week the road map was launched on July 3, 2013. Although that track was the only one available, it does not negate the existence of gross mistakes where most of the parties representing the democratic and civil forces face more difficulties and disintegration.
Professor Abdurrahman, you earlier considered the situation in Egypt to be similar to that of the Weimar Republic from 1919 to 1933. Do you still hold the same views?
No I do not. Weimar Republic had old political forces and a well-established political class and faced a hard test due to the complex economic circumstances after World War I. In Egypt, the situation was different. It was very clear from July 3 that a new political class emerged, whether Mohamed El-Baradei or other political figures. Besides, Egypt does not have a deep-rooted experience in representative democracy.
The archenemy of the different systems of governance formed after July 23, 1952, was the concept of a political class independent from the state. The political landscape in 2013 was very much like gatherings of political figures and activists that had been hastily formed after January 25, 2011, driven by the pressures of the then emerging developments. They however had no organizational culture, knowledge of collective work, or strategic vision vis-à-vis the situation in Egypt and the region. All the existing visions were very limited, local and temporary, and they did not have a spirit to struggle.
Will the current moment experience the formulation of a broader concept of state authority, and how do you view the democratic forces within it?
I supported the June 30 and July 3 revolutions, but my major problem is not the participation of the civil and democratic forces in the coup, but the fact that they could not establish a relationship that would allow them to maximize their gains. On the contrary, they joined the coup without any planning, and they were the first victims from the early days. At the outset, these forces experienced several blows, first of which was the Constitutional Declaration of July 2013, where it was clear that it had not been a coalition government, but something closer to the concept of military administration, which existed after Mubarak stepped down in 2011. All the pressing issues that needed to be discussed were delayed for a year and a half after the presidential elections.
The Constitutional Declaration vested all legislative powers in the president. Had there been some vision and political sensitivity, priority would have been only given to holding early presidential elections. This was the first deal to be broken a week later. By the way, the losers at that time were the civil and democratic forces, rather than the Islamists who were fighting their battle in a different manner from the first moment. It was a battle for survival.
Former Prime Minister El-Baradei was ignored, followed by the decision to break up the Rabia and Nahda sit-ins, while ignoring the opinion of the then Deputy Prime Minister Ziyad Baha’ al-Din. A media campaign was launched against the democratic civil movement. In the context of this reassessment, I have found no self-criticism. People disavow what happened in an ethical, childlike, meaningless and unclear manner. There was no other course of events, except what happened on the ground. On the other hand, some believe no mistakes had been committed. They are driven by an inertial movement, and the organization of most of the parties representing the civil democratic forces is facing more disintegrations. The situation now is a well-integrated dictatorship, which I would not describe as a military authoritarianism because it is not like that. We have a ruling elite that is close to the elites under Mubarak prior to the rise of his son Gamal. It is a security elite comprised of heads of services such as the intelligence, state security and military intelligence whose roles are emerging; a military elite comprised of a group of influential army officers who also play economic roles; and an elite in the Egyptian Administration which consists of a group of civil officials, mainly diplomats and mostly bureaucrats, surrounding the President.
The objective of all those who belong to the ruling elites, strange as it may seem, is to take decisions solely and isolate themselves from the community and politics. They even do not want to be influenced by traditional capitalism pressures and entrepreneurs’ demands, believing that it is implementing a salvation plan.
Recently, several controversial laws have been issued. Why is there insistence on the passage of these new laws, and what do you think of the legal structure in Egypt?
Since July 1952, there has been a special relationship between the ruling elites in Egypt and the law, because coming to power should be made through the law. At the same time, there are ways to ignore or circumvent the law. Egypt has not experienced the same system of governance that existed in Libya, Syria under Hafez Assad or Iraq under Saddam Hussein. Egypt is not governed by the whims of a dictator, for example. There is strong insistence on enacting laws while circumventing them. That system governs the legal structure governing the political and civil issues in Egypt. These laws are formulated with reasonable professionalism to suit our region. Egypt recognizes all modern constitutional principles, but these laws leave a space for the intervention of the ruling elite to exercise full control through formats such as the national security, the public order and the public morality.
Terrorism is now governed by three laws: a law issued in 2015, a law issued in 1992, and the Penal Code. Logic says that one law should supersede the other. The ruling elite, however, wants to have a space to move freely. The maximum penalty under the Demonstration Law does not exceed six months in prison, while in fact all the relevant prisoners are sentenced to longer terms because they have been tried under certain articles of the Bullying Law of 2011 and the Assembly Law of 1914. It is a case of legislative piling up. In this situation, the public prosecutor can serve the indictment bill under any of these laws, and the judge may or may not consider these indictments.
It is a very strange situation whereby the system of governance is neither based on the ruler’s whims, nor is it a regulated authoritarianism. While there is no legal system worse than that of Hitler and Mussolini, it is impossible to find under them more than one legal text governing a given crime. The problem in our case is left open because the intentions of the elites are changeable so we can consider that the legal structure allows for freedom of movement and this means a model of flexible authoritarianism.
The war on terrorism appears to be the focus of the present stage. What about its side effects?
First of all, we must admit that terrorism is a real impending threat. It is different from the situation prevailed during the 1990s. For example, there was a huge Islamic phenomenon, but it was local, and its ideological horizons were not clear. The course of action of al-Gama’a al-Islamiyya was fully understood. Most of its activities came as a reaction to state violence against it. It was, more or less, like a vicious circle. However, the situation now is different. There are no reactions or random wars. It is an organized war against communities rather than political systems. The Islamic State (IS) is waging an organized war in areas that are no longer under the control of the Iraqi or Syrian regimes. It is fighting and destroying an existing community to replace it with its new form of society.
The region suffers from a strategic vacuum. It is no longer affected by or subject to the Cold War, and there is no longer a real regional power controlling it, not even Saudi Arabia, which is busy fighting a war in the mountains and plains of Yemen against Houthi militias, nor the United States which is facing a crisis. The war waged by IS is taking advantage of this strategic vacuum. There is a new context forming in the region as a whole. The importance of this preamble aims at highlighting the serious threat of terrorism and its ongoing war in Egypt. However, all the actions taken by the ruling elite in Egypt will only strengthen and promote the menace posed by terrorist groups against the Egyptian society. All taken procedures are only fueling the ongoing war.
Moreover, there is a strong desire by the ruling elite to settle scores with groups not necessarily linked to terrorism. Attempts are also being made to silence the public sphere, which stifles the democratic and civil forces rather than terrorism.
The nature of the terrorist groups is sectarian, and they thus do not need a public domain to prosper. The Egyptians and democratic forces however want and need a public domain. The Egyptians aspire to have trade unions and press as well as organic links with others because they for example do not have a sectarian dimension to refer to. The perception held by the ruling elite — that stifling the public domain prevents terrorism — is incorrect, because this only weakens the civil resistance to extremist ideas due to police practices inside prisons or the issuance, for example of terrorism laws that allow for more flexible authoritarianism to expand the concept of terrorism to use it against its antagonists at any time.
Many restrictions are being imposed on the media. How do you assess them?
Restrictions on the media are a result of the ruling elite’s persistent desire to control. The media played an effective role in the situation that emerged before June 30. However, the ruling elite is only addressing its supporters and has not thus gained more popularity. The obsession of the need for the media and the vehement desire to fully control it is attributed to the fact that the president does not belong to a specific party or to a political class. Therefore, he considers the media a vital tool for reaching more people. This behavior, however, justifies neither the odd and astonishing articles of the Terrorism Law nor the obligation imposed on the press to only publish the Ministry of Defense statements. What would happen if the spokesperson for the ministry committed a mistake?
Furthermore, the law punishes terrorism incitement, which completely jeopardizes criminal legality and the notion that the crime could be personal. It makes incitement or insults equivalent to killing, aimed at scaring those who appear on TV programs or are interviewed by foreign newspapers. One of the law articles also imposes a state of emergency, although the Constitution regulates such imposition. Thus, there is an ordinary state of emergency, and another imposed in special cases.
How can the public order be used as a restriction tool?
The present ruling elite came to power with an agenda to save the state and society, which is contradictory because envisioning that this goal can be achieved through boosting its authoritarianism is merely an illusion, and is likely to lead to the sinking of the state.
The authority seeks to control the street and obliterate the Islamists through suppressing anything that allows them to function. All voices must be muffled whether they are atheists or even gays. Therefore, there is a tendency to impose a state of discipline, but it is only illusionary. An economic reform program that is whimsically applied by the ruling elite is based on the legal legacy and seeks to oppress the public domain through this legacy. There are 150 years of gaps and contradictions in the laws, which result from the state and its contradictions. The state is not new to the concept of the public order; rather, this concept is part of it and reflects many contradictions within its structure. To preserve people’s life and freedom, the public order must ban specific types of insults that harm their beliefs. This leads to the establishment of a state different from Islamists’ conservative ideology; a true Egyptian state.
What is the solution?
State democratization is the only open way to maintain a modern state because the core issue in Egypt lies in the full exclusion of the social actors from decision-making. All groups from the capitalist class to even the common people are denied any role in this field. And the power is in the hand of a specific elite. State democratization was the pivot of the January 2011 revolution, and without it the state will be controlled by Islamist forces in the future, leading to a despised and unacceptable state because its final form will be decided and controlled by groups modeled on IS and the like.
Is that goal achievable?
Historically speaking, the problem with legislation is that it is only made by legists. A legist is a mere tailor, which is not shameful, working for the Parliament. The essence of democratization of legislation requires an elected parliament and the right to have access to justice, a disregarded right. The judiciary is a state power, and people hence have the right to use it. No one can challenge the constitutionality of a given law before the Constitutional Court unless they have a legal case before the Egyptian courts regarding the unconstitutionality of a legislative text. Part of the democratization process of the law requires that courtrooms are made accessible to citizens. There are no legal channels that allow people to contribute to the legislation process or make the courtroom accessible to them. Therefore, legislative democratization has been aborted from the source itself.
