Experimenting in Cairo

NATHAN J. BROWN — Egypt’s president may have far less control over the post-revolutionary state than it seems. 

Since the Arab Spring reforms in 2011, Islamist organizations — like the Muslim Brotherhood in Egypt — have moved beyond their original role as socioreligious reform movements, asserting themselves as viable political contestants. To function according to this new, more mainstream political ethos, these groups were forced to dilute religious rhetoric. How does their schizoid Islamist identity, in terms of social and governmental functions, impact these groups’ political participation — must Islamist movements disappear before Islamist political parties can succeed?

These issues speak to the heart of debate between members of modern Islamist movements. A great deal of the external attention that is paid to Islamist movements focuses on whether they are moderate. Internally, however, discourse centers not so much around ideology, but instead on  determining the sectors in which to invest Islamist political energies and political capital. Before the 2011 uprising in Egypt, some Islamist leaders advocated a much stronger investment in the political field. This approach was always controversial within the broader movement. After 2011, when Hosni Mubarak’s regime collapsed, these figures capitalized on sense of opportunity to pursue their entrance into mainstream governmental affairs. This process occurred very quickly, and the movement was largely unable to make the necessary organizational and ideological adjustments to function as a viable political entity. The Muslim Brotherhood created a political party, but the relationship between this unit and the overall organization remained ambiguous: the latter dominated the former. The Brotherhood movement’s leadership began to focus significant attention on short term political calculation. This near-singular focus colored the group’s experience in government under President Mohammad Morsi between 2011-2013.

When the Muslim Brotherhood was tossed out of political power in the summer of 2013, it experienced an ideological sea change. No longer does the political field appear very promising to Brotherhood leadership. The chance of electoral or governmental participation seems possible at best in the distant future — if at all.

Since ousting Mohammad Morsi in 2013, Egypt’s military government has marginalized and suppressed the Muslim Brotherhood from mainstream political activity. Although it ultimately faltered, the Islamist experience in power impacted patterns of authority in Egyptian political society. Under what vision of governance did the Muslim Brotherhood assume power, and has their governance ideology left any lasting effects on Egypt’s political or judicial systems? 

By performing so well in the parliamentary elections — and then winning the Egyptian Presidency — the Brotherhood took on a very majoritarian view of how government was supposed to operate. A movement that had always seen itself as the main popular advocate for the majority of Egyptians suddenly saw itself with a plurality of political support in government. The effect of this victory was to vindicate the Brotherhood’s approach in the minds of the group’s leadership.

Yet, while the organization was in political power, it was not able to accomplish much of anything. It could not control a significant segment of the state apparatus, which never professed loyalty to Morsi’s presidency. While the Brotherhood government did manage to push through a new constitution, that document was abrogated and replaced after Morsi’s ouster. Morsi made some modest personnel changes, but since 2013 almost all of these new appointments have been reversed. Supporters of the Muslim Brotherhood, who had been in Egypt’s government prior to the Morsi presidency, have been purged. Essentially, the organization is today much less present in Egyptian political life as a result of the events in 2013.

In spring 2014 Egyptian courts sentenced over 1,000 defendants (many of whom were accused of association with the Muslim Brotherhood), raising serious questions about the judiciary’s independence from the country’s executive branch. In the post-revolutionary period, what mechanisms has the current government in Cairo employed to discipline and restrict the judiciary’s autonomy — have these efforts destroyed the courts as independent and egalitarian entities?

The situation of Egypt’s judiciary is more complex than this question implies. Current events do not represent a simple matter of courts being free versus completely controlled by the regime of Abdel Fattah el-Sisi. Instead, there have historically been several different judicial structures in the country, all of which have been able to maintain some degree of judicial autonomy — either under Mubarak, Morsi, or Sisi governments. These regimes usually devised tools to manipulate the judiciary if they really needed to do so. For example, they controlled judicial institutions’ pursestrings, which made it possible to reward judicial actors who were behaving as desired. Any new laws were written by the regime, and the judiciary was responsible for implementing these regulations. Yet despite these maneuvers, the judicial apparatus was generally able to maintain some degree of autonomy. Egypt’s judicial actors traditionally prided themselves on this fact, and saw their institution as the guarantor of the legal nature of the Egyptian state.

When the Brotherhood took power, there were some judges who were perfectly happy to support the group’s aspirations. However, the judiciary as a body saw the Morsi regime as a threat — as a force that came from outside the Egyptian state attempting to impose an alien vision of governance onto the country. When Morsi was overthrown, and a new, perhaps more familiar regime was ushered into power, many judges saw the new government as beneficial to the health of the Egyptian political system. Motivated by this ethos, most judicial actors essentially cooperated with the Sisi regime as it consolidated its control over the state. Some judges’ actions were driven by a spirit of vengeance against what they regarded as the judiciary’s enemies. This emotion is largely responsible for the kind of verdicts as were handed down to the defendants in spring 2014.

It is important to note that, although many harsh sentences have been issued, the judiciary still seems to retain its autonomy. There have been no executions, and the country’s security service still resorts to “disappearing” people, which is their way of dealing with individuals to which the courts might show too much leniency.

Following the governmental upheaval between 2011 and 2013, many in the Egyptian establishment, including judges, sought to achieve stability above all else — generally sacrificing traditional standards of individualized justice and due process of law. Have these transformations been simply the product of security exigency, or indicative of more systemic post-revolutionary changes in the structure and practice of Egyptian law?

While recent developments do not indicate a systemic change in Egyptian jurisprudence, they are building on pre-existing trends in the country. As mentioned above, the judiciary currently sees itself as the state’s defender. In addition, Egyptian law is fairly authoritarian; when judges act in accordance with legal text, they do so in ways that augment existing political authority. Some laws are also extremely vague, which essentially allows security officials great leeway when defining crimes like “harm of the national interest.”

It is at this intersection of governance and legality that post-2013 developments have impacted the judiciary’s role and health within Egyptian society. Today, the courts tend to be remarkably deferential to security bodies, and the kinds of standards they employ. Structural changes within the country’s judiciary have been generally quite slight, but the body itself has changed its operational tendencies to support regime desires — even if some verdicts are sometimes inconvenient or outrageous by any standard of justice.

Egypt’s judiciary is not a monolithic institution, but instead comprises numerous judges and administrators — some of whom have expressed their opposition to executive attempts at infringing their integrity or autonomy. As the Egyptian government faces rising internal security threat within an uncertain region, will more independent voices within the judiciary be able to maintain their autonomy — how will divisions among Egypt’s judges manifest at a governance level?

The future course of Egypt’s judiciary depends as much on develop within parts of the state as it does on the overall security environment. The situation for the judiciary — which gives it some autonomy but ultimately subordinates it to the executive branch — exists for a host of Egyptian state institutions, from the security apparatus to the religious branches and government-affiliated press. Each has some degree of autonomy that varies between institutions, and some ability to express limited independence. Yet all also operate with a very strong sense of belonging to the state itself. Key figures in the institutions are well-aware of the tools with which the executive can dominate their operations.

Will Egypt’s presidency be able to assert control over all these institutions? So far, it seems to be doing a fairly poor job accomplishing this goal. Sisi’s regime seems relatively impotent to reign in the security services, instead giving them an open license to arrest, detain, and kill Egyptians. In summer 2015 the prosecutor-general was assassinated. President Sisi attended the man’s funeral and spoke to senior judges in this public setting; he was visibly angry, and very openly called on his interlocutors to end delays within their institution. The judges listened patiently, of course, but nothing has changed since then. The Sisi presidency does not seem to know how to operate the levers of the Egyptian state — the real question now is whether it will learn to do so effectively, and when.

In Egypt, as well as other Arab Spring states, constitutional statutes often conflict with un-codified laws that support autocracy and prevent judicially-limited government from developing. What role can existing legal codes in authoritarian states passing through a transitionary period play in creating conditions for accountability and transparency at the national political level?

Contemporary political vocabulary is problematic when applied to this problem. Many scholars tend to view all non-democratic systems as authoritarian, masking a great variety in political systems and collecting them all under the same label. Most importantly, this vocabulary obscures the way certain authoritarian governments operate in accordance with the law of their country. For example, imperial Germany — a country that by modern standards qualifies as authoritarian — had some important democratic mechanisms, like an elected parliament.  And when it came to law, its overall system operationally legalist and bureaucratic. Within the Arab World today, there is tremendous variety in the nature of authoritarianism. Almost all regional regimes are authoritarian, but in different ways.

Egypt has a specific set of established legal institutions, a very strong set of judicial traditions, and a sweeping bureaucratic apparatus. To equate authoritarianism in this case with an absence of regard for law can mask reality in the country.

The main obstacles to true rule of law in the liberal sense are not due to disrespect for legal codes, but instead in three key areas. First, the top political authorities are essentially beyond the reach of the law, especially the presidency and security agencies (military, police, and intelligence). Oddly enough, these bodies have essentially written those exemptions into the law itself. Critically, the Egyptian constitution’s text excludes these entities from any political mechanisms of accountability.

Second, these bodies not only escape accountability; they can also move issues outside the legal order. For example, there is a set of special military courts that provide avenues for detaining citizens outside the reach of civilian institutions. There have basically emerged two, parallel legal orders, one to implement the law and the other to avoid it.

Third, the fact that nearly all Egyptian state institutions have some degree of autonomy means that these organizations’ internal operations are placed in the hands of leading officials within them, thus robbing the system of mechanisms for externally ensuring accountability. For instance, certain officials within the state religious establishment or media are unaccountable to legal standards, according to the current law as it is written.

The real innovation in legal doctrine after the Arab Spring in 2011 was to make constitutional texts — which had traditionally been written by regimes to serve their own purposes — open for political contestation and multiple authorship. Different political groups within a given society were able to articulate their unique constitutional vision within a process that respected a plurality of opinions. This experiment took place in number of countries, including Egypt, Tunisia, Libya, and Yemen. It might be argued that all of these efforts have failed, with the possible exception of Tunisia. One of the problems undermining this effort was procedural: there were no clear, legitimate methods that competing groups would accept to produce a document. Another handicap was historical: some of the entities contending for political capital in post-Arab Spring environments were suspicious of each other, and had very little experience building cross-ideological coalitions or compromises. Existing state institutions were either too strong and could undermine reform processes externally — as was the case in Egypt — or too weak, resulting in state decay — like in Libya and Yemen.

How has the relationship between constitutional text and constitutional practice evolved in Egypt after the overthrow of the military-secular Mubarak regime — did Egypt’s experience with Islamist government impact this interaction?

The key effect of the unrest in 2011-2013 was to modify Egyptian constitutional order in ways that augmented pre-existing trends.

Egypt’s constitutional organization has traditionally given strong position to the presidency and the executive branch. The post-2013 document introduced by the Sisi regime solidified strong guarantees for certain state institutions. This was a text did not read like the product of a society trying to define itself or its fundamental institutions and values, but like a complete hammered out between strong state bodies. For instance, with regard to the police, the constitution provided for a National Police Council with the power to review any law that effects law enforcement entities. This council has police representation on it. The military, too, was given a very strong degree of autonomy. The main impact of these regulations on the Egyptian constitutional order has been to weaken the presidency in some important respects — a departure from its previous position of strength under authoritarian Mubarak, Sadat, or Nasser regimes.

In his 1739 History of the Common Law in England, Matthew Hale introduced the notion that constitutional development is a sluggish process by which successive generations employ material at hand to shape their constitutional norms. In chaotic judicial environments like Egypt’s, is it unfair to expect comprehensive constitutional development within a few years of governmental transition?

The focus of many constitutional analysts is often on the moment of textual composition and creation. During this period, all the key actors are speaking in a constitutional language; it is possible to track which people are making critical choices that will define their party’s stance in a new governmental system. However, constitutions always operate differently in practice than they do in these early stages of conception and theory. The authors’ intentions are often only remotely connected with the way that a given constitutional text actually operates.

It is not necessarily unfair to expect rapid constitutional development — it is a bit too soon to understand exactly how these texts will operate in Egypt, as well as in places like Tunisia, Libya, or Yemen. In the case of Tunisia’s document, the issue of which faction has emerged from an electoral process to run state institutions is paramount: is there a majority party governing in Tunis, or does power rest in the negotiations of a rather loose and troubling coalition? Even though Tunisia seems to have a constitution that looks as if it is viable now, it could operate very differently following unexpected election results. In Egypt’s case, over the long run the document might be less presidential than that with Egyptians are familiar. It is common to interpret much of what happens politically in Sisi’s Egypt as a projection of the President’s will. Under the current constitutional document, however, his domination of the political system may actually erode slightly over time.

The real question about whether documents like Egypt’s or Tunisia’s constitutions are viable documents cannot be viewed simply in normative terms — do they deliver on promises of accountable government and democracy? It is equally possible to consider constitutional function by measuring if the given document has any political effect, positive or negative aside — is the political order different because of the constitutional document? Within five or 10 years in post-revolutionary Egypt and Tunisia, the answer will likely be “yes.” Constitutional clauses will operate in ways their authors did not intend; they may not make politics function more smoothly, but they will make the system different.

The current Egyptian government’s tendency toward intimidation and marginalization of the country’s judges has highlighted a discrepancy between legal code and the effects of extraconstitutional pressure in a dictatorial system. Under such conditions, what importance do constitutional documents assume in shaping political futures, compared to the effects of single-party or faction dominance?

This question identifies a key feature of Arab governance, that is, the tendency — at least prior to 2011 — for a particular faction, family, or leader to dominate an entire political system, not simply the executive branch. Of course, the extent to which this type of rulership occurs varies between countries. There is real variety within the region along this spectrum. Some states are dominated by a very powerful monarchy, like Saudi Arabia. Egypt falls at the opposite end of that range. There certainly is a dominant set of actors — the presidency, security, and military institutions — but they do not always see eye-to-eye. Other entities maintain an ability to express some autonomy, at least in terms of their internal affairs.

Egypt’s judiciary is ultimately the institution best positioned to shepherd democratic rule and manage Cairo’s authoritarian impulses. Yet recent trends from the Sisi regime indicate slippage toward dictatorship, prompting some commentators to advocate for judicial reform. Is it important for Egypt to invest in its judiciary, and from which source must change — if it is necessary — originate?   

Judicial reform is difficult to oppose, in theory. The question should be: what kind of reform? There are two different kinds of reform, one of which is difficult and the other nearly impossible. The first type of judicial reform is that which Egyptian judges themselves often discuss, focused on building a judicial apparatus that would enjoy even greater independence from the executive. For example, this envisaged system would have much more budgetary control within its own organization; the executive role assigning judges to the bench or lucrative non-judicial work would be curtailed. This strategy would essentially take the judicial autonomy promised to judges by the Egyptian constitution, which currently is only half-realized, and let it fully develop. The problem with this vision is an isolated, self-perpetuating judiciary that is only accountable to itself.

A second kind of reform would lead to a judiciary that maintains some kind of mechanism for public accountability, but not to any political actor. For example, instead of having senior judges appointing junior judges, as is the case now, there would be a system in which a broad array of socio-political forces could be consulted in matters of appointment and structure. This type of organization is practically unachievable given Egypt’s current political environment; the pluralism in social and political life that would allow for this kind of reform simply does not exist.

***

NATHAN J. BROWN is Professor of Political Science and International Affairs and Director of the Institute for Middle East Studies at George Washington University. His latest book is called, When Victory Is Not an Option: Islamist Movements in Arab Politics.

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