Since assuming office in June 2014, Egyptian President Abdel Fattah el-Sisi has been making a series of slow but deliberate legal moves to restore and strengthen the authority of state institutions. In the absence of parliament, he has taken advantage of a constitutional vacuum to lay the groundwork for authorities to act with wide discretion and little public oversight. After the 2011 revolution, outside social and political actors were optimistic that they could build a more responsive state; today, however, they are poorly placed to counter Sisi’s efforts. His approach will also likely survive the election of a parliament when that long-promised step is finally taken—perhaps by the end of 2014.
Given Egypt’s long authoritarian tradition, many state institutions are already capable of evading the rule of law. But Sisi’s legislative agenda may give official bodies such extensive license as to make it less necessary in the future to resort to extraordinary measures (such as the much despised state of emergency) in order to exercise sweeping powers. The ultimate result may not govern Egypt well, and it is likely to be challenged from below and perhaps even from inside. However, the foundations being laid now may allow state institutions to weather such threats through normal institutional channels, enabling senior officials to act legally and unaccountably at the same time.
An Authoritarian Legacy
Under Egypt’s pre-2011 presidents, the regime permitted itself to operate outside existing state institutions, most notably by keeping the country under a near-continuous state of emergency since 1939.
According to article 154 of the 1971 constitution—as well as its 2012 and 2014 iterations—the president may declare a state of emergency “in the manner regulated by law.” By approving the declaration of emergency, the parliament places strong power in the hands of the executive, typically with the justification of protecting the state and restoring stability.
In reality however, emergency powers were systematically employed not only to confront legitimate security challenges but also to intimidate, harass, or persecute political opponents, including activists and journalists. Under strongman Hosni Mubarak, the parliament dutifully extended the state of emergency every three years, enabling a parallel system that operated alongside the existing legal apparatus, but without institutional oversight. The state of emergency expired only when the last extension ran out in 2012, nearly one year after Mubarak’s ouster.
A Mubarak-era law governing NGOs imposes further constraints on civil society groups. Known as Law 84/2002, it essentially allows the government to close down these entities with impunity by freezing assets, confiscating property, rejecting nominees to an organization’s governing board, blocking funding, or denying requests to establish relationships with international groups.
Moreover, many of Egypt’s laws on critical political matters have long been characterized by loose language that empowers a host of security, administrative, and judicial bodies to interpret them in many different ways. For example, Egypt’s political parties law dates back to the 1970s, when it was carefully crafted to allow small opposition parties to emerge under the watchful eyes of Egypt’s rulers. Procedures for founding a new party gave wide discretion to a Political Parties Affairs Committee dominated by the ruling party.
If the system served Egypt’s rulers well in general, it could however surprise them on occasion. In the 1980s, for instance, courts began to interpret the vague language of the political parties law a bit more liberally and some parties found that appealing past the committee to the courts could be a successful path. And in 2011, when a host of parties rushed to register in the heady revolutionary atmosphere, an administrative court joined in the enthusiasm by banning the formerly governing National Democratic Party with very little legal reasoning to support the judgment.
What Is in the Works
In its early steps, Sisi’s presidency seems to be constructing a reconfigured authoritarianism—one that operates more openly (at least in general outline) and through normal (if harsh) legal channels. Rather than consolidating power within the presidency, a recent string of initiatives has created a legal framework that grants the courts, security services, and the chief prosecutor immense discretion in interpreting the letter of the law—making a state of emergency, or other extraordinary measures, unnecessary.
The Protest Law, decreed by acting president Adly Mansour in 2013, limits citizens’ ability to protest, either by restricting freedom of assembly or through broad definitions of terrorism, sabotage, or inciting violence. Other recent legislation, such as the University Regulations Law and several recent bans on politically affiliated groups on university campuses, further clamps down on political expression. Even the military courts have received protection, not by a change of statute but through the 2014 constitution, which allows them to continue to try civilians based exclusively on their own interpretation of their jurisdiction.
Far broader initiatives are also in the works that would allow state institutions to operate with little to no oversight. Three draft proposals, including a counterterrorism measure, a law designed to further restrict NGOs, and a law addressing genocide, war crimes, and crimes against humanity weave vague legal language within seemingly sound legislative aims. The initiatives build on drafting efforts dating back to the Mubarak period and, though disparate in the topics they cover, they could all be used to weaken or target regime opponents, potentially rendering much political activity illegal.
Article 7 of the Protest Law, for example, prohibits “violations of general security, public order, or production,” “disrupting public interests,” and “exposure of danger to individuals, public or private possessions.” While no text has been finalized, local media reports indicate that article 86 of the counterterrorism provisions defines a terrorist act as “the use of force, violence, threats, or intimidation in order to disturb public order or endanger the safety, interests and security of the society” and targets anyone who “establishes, organizes, or runs an association, body, organization, group or gang” that calls for “harming national security” and “hindering the application of any of the provisions of the constitution, laws, or regulations.” Moreover, a recently passed amendment allows university heads to expel “students who perform terrorist acts, acts of sabotage that interrupt the educational process, lead to danger, target university facilities or exams or work on campus, assault a person, assault private or public property or incite students to commit acts of violence.”
By invoking nebulous concepts such as public order and the interests of society, these laws and proposals all allow for immense prosecutorial discretion. At the same time, their language empowers state institutions like local security offices, universities, and various ministries to regulate individuals’ actions, such as prohibiting protests or other public gatherings (see table 1).
On top of the striking vagueness of these laws is the extreme severity of their associated punishments. Under Egypt’s proposed amendments to counterterrorism laws, anyone who “establishes, organizes, or runs a terrorist group” will be sentenced to death, according to media reports. Other punishments include life in prison for charges such as attacking rights and freedoms guaranteed by the constitution or calls for harming national unity. Violating article 7 of the Protest Law carries a two to five year prison sentence and 50,000–100,000 EGP ($7,000–14,000) fine. Still under cabinet discussion, the proposed bill to combat crimes against humanity would lay down punishments such as death by hanging or imprisonment of no less than ten years, not only for perpetrators of such crimes but for anyone “intending to commit, plan, supervise, or fund the crimes” as well.
Placed in the current context of the harsh post-July 2013 government crackdown on Islamists and the court’s somewhat remarkable enthusiasm for death sentences, these laws appear intended to hamper political opposition as well as efforts to promote democracy, human rights, and security sector reform.
Legislating Without a Legislature: How a Bill Becomes a Law in Egypt Today
At present, there is a very simple constitutional process for enacting a law in Egypt: the president issues it by decree. There has been no parliament for more than a year; the lower house was dissolved in June 2012 and the upper house disbanded in the aftermath of the July 2013 coup and then abolished in the 2014 constitution.
In the absence of a parliament, article 156 of the constitution gives the president the right to issue laws by decree provided that they concern emergency matters that do not permit delay and are submitted to the parliament for approval once that body has been elected and can meet.
The first restriction seems irrelevant in the current security-minded political atmosphere in which few official actions are questioned. Under Mubarak, the Supreme Constitutional Court once struck down a presidential decree-law issued when parliament was not in session on the grounds that there was no urgency, but such boldness seems unlikely right now.
The second seems an easy hurdle as well. Regardless of when parliamentary elections are held, the new body is unlikely to have either the coherence or the will to strike down legislation regarding purported emergency matters—especially because the new elections law almost ensures that the parliament will be populated by many current or former regime insiders with any opposition likely to be incoherent. The law, issued by Mansour in the final hours of his rule, designates 420 parliamentary seats to individual candidate lists and only 120 to closed party lists. The outcome might be similar to that of the pre-2011 parliament, though without the coordinating roles formerly played by the ruling National Democratic Party or a strongly organized Muslim Brotherhood opposition.
For Sisi, there is also a temptation to use article 156 now, because it might soon become more difficult to enact authoritarian laws. Egypt’s 2014 constitution, like that of many other countries, often offers vague principles but defers the details to legislation. Aware of the way past rulers interpreted any vagueness in an authoritarian direction, the drafters of Egypt’s constitution inserted a provision (article 121) requiring that such laws giving precise meaning to general clauses—including those governing political parties, elections, the judiciary, and rights and freedoms—obtain a supermajority of two-thirds of the parliament. The effect of this will be to keep any existing law frozen in place until the new parliament can organize such a vote. But it also gives the president a golden opportunity in the current interregnum to modify any law he likes before the parliament meets, without having to face this threshold. It remains unclear whether the parliament will have to muster such a supermajority to approve the laws when it does sit.
Most of the legal changes now under way—such as those governing civil society—have been percolating not merely in public discussions but in various ministerial committees and drafts for years. And as Sisi works, he appears to be less an arbitrary autocrat and more a head of state, relying on existing institutions and a legislative reform committee formed by presidential decree immediately after his inauguration to draft laws and work with those already under development by ministries. The system seems designed to channel many state voices but few societal ones—and thus to develop a legal framework that gives state institutions the authorization and direction they want, while placing only the vaguest restrictions on their activities.
A Divided Society Against a United State
In the wake of Egypt’s 2011 revolution, social and political activism blossomed, as an array of actors—including trade unions, professional associations, and advocacy organizations—saw an opportunity to remake the Egyptian state. But they have achieved little, and today, while some still pursue their own legal visions, their struggle is sharply uphill. As Sisi pushes forward with his changes, it is once again the state, not the society it purports to serve, that is driving the drafting process. At the same time, the sheer number of laws and their diffuse nature may make it even more difficult for outside actors to be effective.
Moreover, opponents may also be internally divided over which laws to address. NGOs may wish to direct their efforts toward the proposed NGO law, as well as toward the tough law on these entities that already exists. On the other hand, the National Council to Support Legitimacy, human rights organizations, and other revolutionary groups may be more concerned with the Protest Law; others also have the University Regulations Law to contend with, as well as a slew of new bans on campus political life.
Pockets of Reservations
This is not to say that recent initiatives to reassert state control have gone unnoticed. Demonstrations erupted following the passage of the Protest Law in November 2013 with Islamists, human rights groups, and liberal revolutionaries alike registering their outage. The government responded swiftly by using violence to disperse the crowds. More than 50 individuals were arrested, including prominent activist Alaa Abdel Fattah who, along with 24 others, was sentenced to fifteen years in prison and fined 100,000 EGP ($14,000).
Following a well-publicized, widespread hunger strike, Abdel Fattah and two other defendants were released on bail on September 15, but only after a humiliating prosecution, which included showing a video of Abdel Fattah’s wife belly dancing at a party in court. The judge in the case also recused himself, thus invalidating the sentence; a retrial has yet to be scheduled. Though Abdel Fattah walks free, at least for now, a hunger strike campaign continues, calling for the revocation of the Protest Law and the release of all political detainees—including April 6 Movement co-founder Ahmed Maher, who is serving a three-year sentence for violating the law.
Political parties also objected to the new elections law, which they rightly fear will usher in a system in which wealthy, well-connected, or locally powerful individuals will dominate the parliament. While political parties will have some presence, with only a quarter of the seats given to lists, the new law is likely to further diminish their position within Egyptian politics.
The business community—hit by both Egypt’s weak economy and the awarding of several big infrastructure project contracts to the army—has yet to make a fuss over this new string of legislative initiatives. But the quiet grumblings have begun, and the private sector is rightfully wary of being squeezed out of Sisi’s economic revitalization ambitions.
Labor is also likely to see some battles over legislation. Trade unions have been in turmoil since the late Mubarak years, with state-sanctioned organizations jostled by “independent” unions, each seeking a favorable legal framework. While the former seem to be dominant, the effort to control new unions could spark protest among parts of the society that have become a bit more vigilant about having their voices heard.
The swath cut by NGO legislation has also mobilized some opposition. The Egyptian Initiative for Personal Rights issued a statement signed by 29 organizations calling on Sisi to reject the recently proposed law, saying that it constitutes a “flagrant breach of the constitution and Egypt’s international obligations” and “will criminalize the operation of NGOs and subordinate them to the security establishment, shutting down the public sphere in Egypt to all but regime supporters.”
The National Council for Human Rights also called for postponing the issuance of the draft legislation, which carries criminal penalties of up to one year for individuals who fail to comply. Yet this opposition, however vocal, seems likely to secure only minor, or simply cosmetic, changes, at most. If there is any more effective opposition, it is likely to come from the state institutions charged with enforcing the law—and even then, the impact would be limited.
And even if parts of the state apparatus join those outside of it in expressing disquiet with the new order, their dissidence will likely be limited and quiet. Over the long term, the judiciary may offer some space for challenge as it did on occasion under Mubarak; other state bodies jealous of their autonomy might similarly open up possibilities for creative political actors to widen gaps among the country’s governing institution. Official bodies may also push back a bit more, especially if they feel their own status or prerogatives are threatened.
For instance, Sisi’s recent decision to disregard recommendations made by the State Council, a judicial body that gives legal advice to the government, raised eyebrows and may have undermined the effect of his gestures to respect judicial independence. Should he alienate the courts, Sisi risks losing a key institutional ally in the Egyptian state apparatus at a moment when he is still politically untested and in need of all the support state institutions can provide. But given the pro-regime tenor of recent court rulings, such a development seems possible only over the long term.
Politics in Egypt today is hardly dead, but it is weak, circumscribed, and contained. The choices voters face seem carefully structured to channel popular voices in specific ways or to dilute them among weakly organized forces. Critical views are beginning to emerge but have yet to coalesce around any organization, movement, or agenda. And any attempt to move out in the streets is met with force.
Against that backdrop, the new Sisi presidency is developing a legal framework that will only enhance the power of state institutions to act as they wish—and without public oversight. At the same time, Sisi himself is moving to capitalize on existing and vague legislation to further sideline or eliminate his opposition. The absence of a parliament, together with the presence of sufficiently cooperative courts, mean the practice is likely to give strong protection to a reconstituted Egyptian authoritarianism.
Three and a half years after they received a disorienting shock that paralyzed many of them, Egyptian state institutions are going back to doing what they do best—governing in a way that claims implausibly to serve the people without listening to their voices.
Katie Bentivoglio is a junior fellow in Carnegie’s Middle East Program.
1 “Full English translation of Egypt’s new protest law,” Ahram Online, November 25, 2013, http://english.ahram.org.eg/News/87375.aspx.
4 “Egypt’s Council of Universities approves expulsion of ‘saboteurs,’” Ahram Online, January 6, 2014, http://english.ahram.org.eg/NewsContent/1/64/90935/Egypt/Politics-/Egypts-Council-of-Universities-approves-expulsion-.aspx.
5 “Mansour to review law on expulsion of students for ‘terrorist’ acts,” Mada Masr, January 11, 2014, http://www.madamasr.com/content/masour-review-law-expulsion-students-‘terrorist’-acts.
6 “Egypt’s Council of Universities approves expulsion of ‘saboteurs,’” Ahram Online, January 6, 2014, http://english.ahram.org.eg/NewsContent/1/64/90935/Egypt/Politics-/Egypts-Council-of-Universities-approves-expulsion-.aspx.
7 “Counter-terrorism draft law ready for president’s approval,” Egypt Independent, April 6, 2014, http://www.egyptindependent.com/news/counter-terrorism-draft-law-ready-president-s-approval.
10 “Cabinet discusses draft law to combat ‘serious crimes of aggression,’” Daily News Egypt, August 12, 2014, http://www.dailynewsegypt.com/2014/08/12/
13 “Egypt: Draft Law Threatens Independent Organizations,” Human Rights Watch, July 14, 2014, http://www.hrw.org/news/2014/07/14/egypt-draft-law-threatens-independent-organizations.
14 “Proposed Government Law Makes NGOs Subordinate to Security and Ministry Control,” Egyptian Initiative for Personal Rights, July 9, 2014, http://eipr.org/en/pressrelease/2014/07/09/2154.