Egypt: State of the Law vs. Law of the State (Edited) By Rany Ibrahim

28 07 2009

Egypt: State of the Law vs. Law of the State

(Edited) 

By

Rany Ibrahim

A Constitution is the most crucial document in any country. It is the document that lays the foundation of citizen’s rights in the social contract between citizens and their governments. Since the 1215 Magna Carta Libertatum in England to 1787 with the Constitution of the United States of America, the Constitution is what defines states’ authority, limitations, relationships, and responsibilities towards its own citizens, and citizen’s rights in the state. People are the source of the laws or as John Rawls describes it in the Laws of Peoples as “Peoples are equal and parties to their own agreements.”[1] People’s representatives in any Parliament have a leading role in the development and restructuring of a country’s Constitution. Investigating the role of law and the role of the Constitution can reveal the democratic progress of any country and are a necessary tool for developing democracy and citizenship.

Recently, there has been an increasing international interest in studying Egypt’s attempts for reform due to the aging and health problems of Egypt’s 81-year-old President Hosni Mubarak with no announced succession plans. One can claim that there is a delusion of democracy in Egypt, especially with what appears to be a deformed hybrid mix of an authoritarian regime that has wrapped itself in a Western-style democratic cover. This deformed hybrid mix has influenced if not controlled the legislative institutions in Egypt and has prevented them from performing their job to protect democracy and freedoms. These institutions have become a tool that is constantly tailored to protect the regime while weakening possible prospects of future opposition. In this book review I will examine this resulting deformed hybrid mix in Egypt through a constitutional and legislative lens that investigates roles, interactions, and conflicts between the state’s legal and executive institutions. My arguments will focus on the current President, Hosni Mubarak’s era, and it will be based on my review of two main contemporary sources that support my argument: Tamer Mustafa’s The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt,[2] that provides a macro approach and analysis to the modern constitutional and legislative reforms in Egypt and Eberhard Kienle’s A Grand Delusion, Democracy and Economic Reform in Egypt,[3] that studies the economic reforms’ affects on the political life in Egypt.   

A brief historical background of the weakness of Egyptian Constitutional, legislative, and Parliamentary roles shows how the history of Egyptian modern political development up to 1952 can be traced to two main milestones; the 1866 establishment of the Egyptian Parliament and the 1923 Constitution, which was the first Constitution in modern Egypt inspired by the Belgian Constitution.[4] The Egyptian Parliament is the legislative arm of the state that is responsible for developing policy’s, laws, and development plans while assuming responsibilities of maintaining supervision of the government’s performance. The Egyptian Parliament has two divisions; the People’s Assembly, a 454 member (Lower House) and the Shura Council, a 264 member (Upper House).[5] Since its establishment, the Egyptian Parliament has not had a fair chance to function independently without interference from external elements. Under the British Occupation (1882-1936) the Egyptian Parliament was unable to operate independently, but it had more democratic representation from various parties in the country compared to after independence. Since the 1952 coup, the Egyptian Parliament has had no real influence in the Egyptian political life, which has been dominated by the military and the President. The Parliament and the Constitution became not capable to carry out their duties to oversee government performance after being stripped of their powers and became ceremonial institutions that gave legitimacy to the regime. The following reviews of both Tamer Mustafa’s macro approach,[6] and Eberhard Kienle’s micro approach,[7] will investigate the weaknesses of the legislative and legal bodies that resulted in a deformed hybrid mix dictated by the authoritarian regime under President Mubarak.

Tamer Mustafa took a macro approach in his analysis to the Egyptian case using the establishment, development, and expansion of constitutional power in Egypt (1979-1997) as a model that reflects the Egyptian reform conditions. The objectives from his study were to understand the dynamics of judicial politics in an authoritarian state such as Egypt compared to similar other cases in Brazil (1964-1985), Chile (1973-1990), China (1990-present), Mexico (1926-2000), the Philippines ((1972-1986), and Spain (1936-1975).[8] Mustafa compared the standing of legislations within States in similar conditions and the applications of the legislations among them. He investigated if there is any lack of legislations or lack of legislations enforcement, and questioned how legislations can affect states political and economic development. He stated that “the lack of transparency that is characteristic of authoritarian politics provided cover for state bureaucrats to abuse their powers.”[9] He concluded that power in a dominant regime produces costly unpopular policies, and that the state legitimacy is linked entirely to “substance” policy rather than “procedural” legitimacy.[10] In Egypt’s case, the regime turned aggressive against institutions it created such as the Supreme Constitutional Court (SCC) when the regime started to clash with its rulings. Mustafa’s study is full of rich historical information of Egypt’s constitutional institutions covering the period from 1979 to 2005. He used a mixture of both qualitative and quantitative analysis to showcase this information. The study was full of overwhelming dry information that covers details of milestones and significant rulings and statistics of the constitutional powers in Egypt. I agree with most of Mustafa’s opinions in the study. However, I find his book lacking in sufficient analysis of the provided information linking it to his main conclusion that the SCC was transformed from “the most promising avenue for political reform to a weapon in the hands of the regime”[11] that constrains and crushes opposition. Furthermore, I find this conclusion summarized in one page too brief compared to the scale of the 328 page study. Mustafa’s conclusion from a macro level sees eye-to-eye with Eberhard Kienle’s micro analysis of the failed economic policies of the Egyptian regime.

Eberhard Kienle’s micro approach in his analysis of the Egyptian case shows the authoritarian arrangements of the state against institutions, groups, and individuals as examples that reflect common trends within authoritarian regimes to control the political process. Kienle highlighted regime pressures on the legislative and legal institutions as part of the regime arrangements to remain in control while interfering and influencing the election process. He analyzed the significance of the regime-legislative relationship on the Egyptian political culture through the People’s Assembly, Popular Councils, Trade Unions, Professional Syndicates, and Student Federation’s elections. He also extended his analysis from direct connected players in the political process to general civil society groups to include the repressive practices and harassments against the press, media, and human rights groups that reflected a totalitarian characteristic in the regime. Despite the slow progress from Nasser’s 1960s “single-party” Egypt to Sadat’s 1970s controlled “pluri-partism,” the process of liberalisation had a setback in the early 1980s that deformed Egypt’s chances of a peaceful transition to democracy.[12] The main element of this setback was the unexpected assassination of President Anwar Sadat in 1981 and the replacement by Vice President Hosni Mubarak. In Kienle’s analysis, Mubarak’s “liberalisation” excluded the political side and focused on his economic development plans that resulted in a clash between economic liberalization and democracy and failed to achieve democracy.

Kienle used Mubarak’s method of rule as an example that emphasizes the blurred “complexity” of the linkage (if there is any) between economic development and political liberalisation in Egypt.[13] Mubarak acquired more powers and often used “blanket clauses” that extended his powers against “vaguely defined dangers – diagnosed only by himself – or when it please him to declare the state of emergency.”[14] The price was the diminishing of real opposition and limiting constitutional and legislative provisions, which were tailored to suit the President and the regime elites. Kienle demonstrated through the Egyptian regime survivor narrative that the “authoritarianism” concept within the Egyptian political culture was able to adapt itself to new modern conditions.[15]  Keinle provided a more balanced well-structured study of the Egyptian case using an economic view as an entrance leading to his argument that political reform in Egypt failed due to the economic pressures that helped in creating a deformed hybrid mix in the state policies. He provided easy linked transitions between his arguments with a sufficient analysis to each.  Kienle through his book and in his conclusion that third world liberal economic reforms do not work can be felt that it is under an influence of a dislike to liberal market ideas in general rather than the actual economic case on the ground in Egypt. I would argue that what failed were the wrong implementations not the liberal ideology. Furthermore, I do not agree with Kienle’s idea of considering Egypt’s liberal approach under the monarchy as one of many failing economic strategies that Egypt adopted through its modern history (categorizing it alongside to Nasser’s Arab Socialism, Sadat’s infitah, and Mubarak’s Western style free economy)—when he was trying to justify a growing influence to Islamic economy in Egypt.[16] I would argue that Egypt’s economy was in one of its best conditions in the nation’s history and prospered during the liberal monarchy era. In my opinion, the growing influence of the Islamic economy in Egypt has more cultural and religious elements to it based on the Islamists ideas that reject Marxism and Western capitalism than economic ones.

Tamer Mustafa and Eberhard Kienle agreed in their research that Egyptian reforms provide a unique case with its political dynamics constantly tailoring the Constitution compared to other similar states that either adopted or ignored the constitution. While the Constitution is meant to control the state’s powers and make it accountable towards its citizens, in Egypt’s unique case, the Constitution, legislations, and laws were trimmed constantly to buttress the Egyptian regime and geared-up to prevent opposition from challenging the regime, or as Tamer Mustafa describes this deformed hybrid mix, “authoritarian regimes either have no use for law and legal institutions or that law is applied instrumentally with courts as faithful agents of the regime.”[17] The abusive use of law by the regime can be realized more clearly after the 1952 coup when a military regime sized power in Egypt. Gamal Abdel Nasser and the free officers group established Egypt’s first “Republic” that consolidated civic powers and undermined judicial institutions. The new military regime during Nasser’s era annulled the Constitution and dissolved all political parties.[18] However, the regime during Sadat’s era had to face the reality that the rule-of-law is essential to attract the foreign investments that are necessary for economic development, especially after the 1970’s “infitah” and its landmark, the 1974 “October Paper” by Sadat, a document designed to open the Egyptian market to the world.[19] Another benefit of the rule-of-law was to “strengthen administrative discipline within the state’s own bureaucratic machinery.”[20] President Anwar Sadat used the rule-of-law during his attempts to eliminate “Power Centers” that were created in the country during President Gamal Abd al Nasser’s era.[21] President Sadat counted on the support of his increasing popularity after the 1973 War—that ultimately proved his legitimacy that was in question after Nasser’s sudden death in 1970. Sadat gained large support from the military institution and the people. Tamer Mustafa stated that:

“In the Egyptian case, both Nasser and Sadat came to the conclusion that centralized modes of monitoring did not produce reliable information about conduct of the state’s own administrative hierarchy. They both became concerned that they would fall victim to the emergence of alternative “power centers,” particularly within the military, the police, and the intelligence services.”[22]

President Sadat attempted to reinforce legal institutions to provide a stable controlled process in governing the state, and to secure a peaceful power transition that would avert power grabs. However, the sudden assassination of President Sadat in 1981 and his replacement by Vice President Hosni Mubarak did not allow time to implement the changes. Hosni Mubarak did not face any difficulties to start his Presidency smoothly, benefiting from the shock, fear, and uncertainty that followed Sadat’s death, which allowed him to reinforce “emergency laws” to gain additional powers. Gaining access to unlimited powers without real constitution and legislative supervision corrupted the regime and turned the state from institutions to person/s.

Louis XIV of France often stated that “L’tat, c’est moi” (I am the state). Hosni Mubarak, through his organized methods to deconstruct the state Constitution and custom-made legislations, took all powers from the states’ institutions to be concentrated in his hands he became the state. Mubarak, with over 30 years in power, insisted on the priority of economic development prior to democracy as a starting point for reform. Both Mustafa and Kienle argue that there is a lack of political liberties on many levels in the Egyptian political and economic life, and that Mubarak’s regime made intense systematic changes in the Egyptian state, that created as a result, a “virtual state” within the State, that has “real” control of Egypt. This “virtual state” materializes and exists in the President himself, a few people in the Office of the President, and the National Democratic Party (NDP) to form the state governing elites group. This “virtual state” functions through direct top-down personal orders from few individuals in instead of a much needed well established institutional system. Mustafa and Kienle’s analysis of the changes and what were alleged to be “reforms” in the Egyptian economic and political life—highlights quite clearly how Mubarak’s regime used all possible methods to adapt a set of laws and mechanisms that facilitates control of power, and does not allow any room for a real opposition.

In the Egyptian history, Pharaoh was God on earth to ancient Egyptian society. Mubarak also used this ancient psychology and culture, based on the submission to the ruler, to achieve his goals to remain in full control. Mubarak’s deformed governing hybrid mix has manipulated the Egyptian society that is dominated by youth. The demographic youth of Egypt can help explain the psychology and culture of the current generation of Egyptians. It provides an understanding of the directions of the current and future political environment. Egyptian society is a fairly young society with a median age of 24 (2009 est.)[23] The massive majority of Egyptians did not encounter the purported pre 1952 “Corrupt Kingdom.” The only image that younger generations and youth have seen is the repression of the current regime. Other elements that put limitations to Egyptians liberties can be traced to regime obstacles to freedom of association and freedom of expression.

The vast majority of powers are vested in the President with no direct influential participation from any other groups, including his own party, the NDP. Through time, the regime developed two powers: a formal and an actual one. For example, the NDP dominated the People’s Assembly invoked article 93 of the Egyptian Constitution, which states that “the people’s assembly shall be competent to decide upon validity of the membership of its members” to refuse court rulings that judges concluded that 226 seats of the People’s Assembly (over half of 444 in total) were invalid and disqualified in the 1995 Parliamentary elections.[24] The regime exploited the judicial institutions and used the courts to take a role in notorious reforms to reinforce a claim to ceremonial legal legitimacy.[25] However, the regime knows that rule-of-law can be a double-edged sword that can undermine the regime’s ability to have full control of the country. Therefore, it enforced a “State of Emergency” for no-good-reason other than to allow the regime extensive use of both State Security Courts (SSC) and State Emergency Security Courts as a parallel legal system that discards human rights and uses torture.[26] Furthermore, due to procedural delays, the regime often used Military Courts in civil cases. The initial claim was to speed-up the trial of terrorism cases. However, Military Courts have been used as an “airtight avenue for the regime to try its opponents,” trials carried out with judges/officers that are not required to be trained in law, and the trial may be held in secret with no right for an appeal.[27] While the ruling regime granted the Supreme Constitutional Court (SCC) significant independence from executive government control to allow it to protect freedoms and shield civil rights of the society from regime and state domination, the irony is that the SCC was challenged consistently by the executive ruling powers represented in the President or the cabinet ministers that eventually striped most of its powers and credibility as a safeguard for freedoms.[28] The SCC was another example of an independent institution that fell under the pressure of the regime, which caused it to be careful in issuing any rulings that can challenge the core validity of the regime or its ability to maintain political domination.[29] The Supreme Constitutional Court example provides evidence that the regime uses the SCC as an ornamental institution that provides lawful validity to it.

In this book review I highlighted the distortions of the Constitutional and the legislative institutions and their struggle in Egypt, and the hybrid that makes up the legislative model that Egypt adopted in a methodical way to guard the regime’s powers—while eliminating the hopes of any potential opposition. My arguments based on my reviews of both: Tamer Mustafa’s macro approach in The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt,[30] that discussed the constitutional changes and struggles in Egypt’s modern time and Eberhard Kienle’s micro approach in A Grand Delusion, Democracy and Economic Reform in Egypt [31] screening Egypt’s modern economic reforms and testing its connections to political changes. Both authors provided me a strong case for my arguments from two different points of view that meets at the same conclusion. They investigated some of the reasons that led to the current poor political and economic conditions. One main reason can be traced directly to the influence of President Mubarak himself and the military institution on limiting freedoms of the Egyptian civil society and freezing the constitution. The core argument of this analysis was that the Egyptian regime stripped the Parliament and the Constitution of their powers by limiting their responsibilities to oversee President and government performance. The Parliament and the Constitution became ceremonial establishments that provides legal legitimacy to the government and focuses on “substance” policy rather than “procedural” legitimacy. Furthermore, this analysis demonstrated through the Egyptian regime survivor narrative an “authoritarianism” model within the Egyptian political culture that was able to acclimatize itself to new modern settings that allows virtual “freedoms.”

 

References:


Government of Egypt: The Egyptian Constitution: http://www.egypt.gov.eg/english/laws/Constitution/introduction/CAdocument.aspx

Government of Egypt: The Egyptian Parliament:  http://www.parliament.gov.eg/English/default.htm

Kienle, Eberhard, A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers, 2000. 

Mustafa, Tamer, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007)

Rawls, John, “The Law of Peoples,” Critical Inquiry, Vol. 20, No. 1. (Autumn, 1993)


[1] John Rawls, “The Law of Peoples,” Critical Inquiry, Vol. 20, No. 1. (Autumn, 1993), pp. 36-68

[2] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007)

[3] Eberhard Kienle A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers (2000). 

[4]Government of Egypt: The Egyptian Parliament:  http://www.parliament.gov.eg/English/default.htm

[5] Ibid: http://www.parliament.gov.eg/English/AboutTheParlmanet/History/Al7aiahElNiabiah/

[6] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007)

[7] Eberhard Kienle A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers (2000). 

[8] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007) p. 20

[9] Ibid p.32

[10] Ibid p. 9,10

[11] Ibid p.218

[12] Eberhard Kienle A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers (2000). p. 2

[13] Ibid p. 197

[14] Ibid p. 23

[15] Ibid p. 200

[16] Ibid p. 162

[17] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007) p.19

[18] Ibid p.4

[19] Ibid p.71

[20] Ibid p.20

[21] Eberhard Kienle A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers, 2000. P.23

[22] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007) p. 34

[23] https://www.cia.gov/library/publications/the-world-factbook/geos/EG.html

[24] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007) p.160, 161

[25] Ibid p.20

[26] Ibid p.172

[27] Ibid.P.173

[28] Ibid.P.1

[29] Ibid p. 232

[30] Tamer Mustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. Cambridge University Press (2007)

[31] Eberhard Kienle A Grand Delusion, Democracy and Economic Reform in Egypt, London/New York: I. B. Tauris Publishers (2000).


Actions

Information

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




%d bloggers like this: