Devils in the Details

01-26-2017

By: Nathan Brown & Mai El-Sadany

This article originally appeared at Diwan and is reposted here with their kind permission.

 

In Egypt today, many unusual decisions are being made.

Last November, the Egyptian pound was floated in a dramatic departure from years when its value was propped up. In December, Egypt withdrew its sponsorship of a United Nations Security Council resolution on the Israeli-Palestinian conflict at the request of U.S. president-elect Donald Drumpf. In January, a major corruption investigation implicated two senior officials in the administrative court system—one of whom was found dead in his jail cell.

It is unclear who made these decisions and why. Many seemed to surprise key state bodies in their nature and timing. And sometimes, other actions—the sudden cancellation of a television program and the murder of an Italian doctoral student, for example—were not directly traceable to state bodies, despite justifiably strong suspicions, since the fingerprints were figuratively (and perhaps literally) wiped clean.

The Egyptian political system would seem to be too murky in its processes to describe clearly. And yet, clear patterns are emerging. The best way to understand the current political order is to spend a bit less time swapping rumors about the dramatic events and instead read the boring news emanating from state bodies: The prime minister announces that in order to prevent cheating, secondary school examinations will be printed by a “sovereign body.” The main Islamic religious institution, Al-Azhar, issues a year-end summary of its accomplishments, citing its efforts to “renew religious discourse.” The Supreme Constitutional Court names some new members to its Commissioners Body, a group of judges that prepares cases to be decided by the full court. Parliament introduces controversial ideas into the draft legislation governing nongovernmental organizations and judicial appointments, but the bills never make it to the president’s desk.

Such decaffeinated news can actually help us trace the evolving political order in Egypt—one where the president is supreme but controls the state uncertainly; where security bodies play a powerful and growing, but also often hidden, guiding role; and where various state officials are frequently able to protect their own interests, but find that their autonomy rests on sometimes shaky foundations. The authoritarian nature of the system is a given—or at least it has been for over six decades, with the exception of the contentious two and a half years following the January 2011 uprising. But authoritarianism has many guises. Which institutions matter? How is policy made? Whose word is supreme?

A Balkanized State

In the 1960s, there was an all-powerful presidency, with its occupant and many key supporters coming from the military. The office dominated the political system through a bombastic ideology, an intrusive and repressive security apparatus, state control of major economic enterprises, and a single political party.

Many of those instruments decayed over subsequent decades. The military lost some of its political role, most attempts to develop an official ideology were abandoned, parts of the economy were liberalized, and the single party morphed into a weak structure that united top regime supporters in a nominally pluralistic system. Yet what had existed before was not fully abandoned. The military still had a dominant presence in some spheres; state control of the economy remained strong; and the security services were expanded.

However, the overall institutional effect of this evolution was clear. To repeat some analysis one of us offered in 2013, the resulting “wide” state was also a Balkanized one, with fiefdoms within a sprawling apparatus. Each key sector (education, foreign affairs, justice, and so on) expected a senior member from its own ranks to serve as minister. By the 2000s,
     the Egyptian state was no longer micromanaged from the presidency. Of course, the presidency was still in a central position and, when push came to shove, had ways to override any law
or procedure and impose its will. But push rarely came to shove, and critical state institutions were allowed a very considerable degree of internal autonomy. The presidency managed the state apparatus by appointing individuals to key positions (such as the prosecutor general or the chief editors of the state-owned press), cooptation (doling out higher salaries, plum appointments, or other benefits to key individuals or institutions), and fostering institutional duplication (with an array of courts to use if one proved unreliable; overlapping security services, and so on).

These various bodies could achieve surprising autonomy within their own realms, so long as their boss remained loyal. They could allocate their budgets and sometimes even find their own sources of revenue, provide housing and medical benefits to their members, and hire sons and daughters of existing members into their own ranks. Some were able to develop strong corporate identities as well as a strong sense of their own institutional self-interest. Important contests sometimes took place within these state bodies (as some saw their leaders coopted and other rivalries divided key institutional personnel), and occasionally an institution might seem like it was pushing the presidency too far (as happened with judges in the first decade of the 21st century).

While that order seemed initially threatened in January 2011, the immediate effect of the Egyptian uprising was actually the precise opposite for many bodies: the presidency’s controlling hand was removed, and some key bodies managed to see legal changes pushed through that increased their ability to name their own members and leaders. The 2014 constitution enshrined some of these concessions, especially for the military and police.

But this same constitution has also served as the basis for a restored presidency and parliament. The harsh measures used against political opposition of all stripes has removed, at least for now, the daily pressure of politics emanating from groups and interests outside of the state apparatus. But many of the lines of authority within the state are uncertain or shifting.

Where Boring News Becomes Helpful

And that is where reading the boring news can help. Having a “sovereign body”—likely the military, though the term can also refer to security agencies—print secondary school examinations is an example of a trend in which the military is playing an increasing (and increasingly public) role in Egyptian governance, as the institution that can get things done. The Al-Azhar report is part of a response to presidential nagging and hectoring on Al-Azhar’s need to engage in “the renewal of religious discourse.” The institution insists that it has been doing so on its own and is the official body that is to be charged with the task (in the face of a minister of religious affairs who keeps using the presidential phrase to assert his own role). The Supreme Constitutional Court appointments included two sons of former chief justices as well as some sons of senior judges from other courts.

In Egypt today, the presidency remains a strong and central institution. Its suppression of politics and reliance on repression are clear. But it sometimes seems uncertain in pulling the levers of power. Overall, it plays an unclear policy role, with few identifiably influential figures and an apparent heavy reliance on those with military background, and it often seems unable even to give general guidance. In this respect, it seems (to use sociologist Juan Linz’s description of authoritarian regimes more generally) to be informed more by mentality than ideology.

And while the presidency is reasserting itself in an uncertain and unpredictable manner, other state bodies are stepping forward. To be sure, not all are enjoying autonomy. The state-owned press has returned to the state of sycophancy it survived in for decades. State-licensed and regulated professional associations are feeling a tightening of the reins.

At the same time, Al-Azhar and the judiciary are using the tools they have not to reshape the regime, but to insist on autonomy in their own realms, and doing so with some success, at least for now. And that leads us to the part of the story that is clear in its outlines but where even reading the boring news will not reveal the details: an apparent attempt by the security services to rein in independent voices in society and the state—but to do so through Parliament in a legal but non-transparent manner.

Egypt has a clear set of legislative processes within the state apparatus. Generally, interested ministries, affected state bodies, and the cabinet are all involved in drafting laws. The State Council, a judicial body, is called upon to review any draft. Formal legislative authority may lie with Parliament, but its role in initiating and drafting laws is very limited.  With weak resources, weak parties, a strong speaker picked by the executive, and the absence of any true opposition, Parliament generally follows the regime line.

Who Speaks for the Regime?

But who speaks for the regime? In two recent instances there were strong signs that security bodies had worked to bypass much of the formal drafting process and push their own versions of legislative changes through friendly parliamentarians. Drafts suddenly appeared on the scene introduced by parliamentarians without the Cabinet and other executive branches having been involved. The first of these efforts involved nongovernmental organizations (NGOs); the second one involved the state itself, specifically the judiciary.

The Law on Associations and Foundations, popularly known as the NGO Law, is the first example. The minister of social solidarity had long been leading an effort to draft an NGO Law to replace Law No. 84 of 2002. A draft was approved by the Cabinet last September 9 and thereafter sent to the State Council and Parliament for review. Benefiting from the noise around the cabinet draft, an alternate NGO bill that had been apparently produced by the security sector and found a parliamentarian, Abdel Hadi al-Qasebi, to sponsor it was presented and approved by Parliament in a process that was far more rushed and less public than normal. The security sector’s version of the law was approved in a final vote on November 29. However, despite initial news that it had been referred to the president for ratification, in a recent interview Qasebi stated that the draft legislation remained in the hands of Parliament and had not been sent to the president’s desk. The reason for this abnormal procedural delay was not clear.

Although rights groups had criticized the Cabinet’s version of the NGO law, the release of the version backed by the security sector made the earlier one seem quite progressive. The security sector’s draft passed by Parliament creates the National Foreign NGO Regulatory Agency, an entirely new body with representation from government, security, and intelligence officials that is mandated to monitor the work of foreign NGOs and the receipt of foreign funding. The Cabinet’s version of the law had delegated this authority to the Ministry of Social Solidarity and a coordinating committee established by the draft. While the Cabinet’s NGO bill had furthered some restrictions on NGO activities, the security-sector draft set forth much broader prohibitions, banning all activities that harmed “national security or public order or public morals or public health.” These are vague terms employed by the state in other legislation and regulations to entirely constrain human rights activities, among other things.

Furthermore, whereas the Cabinet’s draft proposed only fines for violations of the law, the security sector’s version imposed both fines and prison sentences. It is unclear whether the security sector’s draft will ultimately become law. However, its ability to sidestep the Ministry of Social Solidarity—presumably the expert on the subject—and get a draft that consolidates its power and that of the security state more broadly, rather than the ministry’s, is a significant development.

In a more recent occurrence, Egypt may be witnessing a highly unusual power play between the security sector and Parliament on the one hand and the judiciary on the other. On December 24, Egyptian media reported that a parliamentary committee would discuss a bill proposed by parliamentarian Ahmed Helmy al-Sharif governing the appointments of the heads of judicial bodies. The bill would grant a stronger role to Egypt’s president, effectively circumscribing the autonomy judges have within their own ranks. According to the proposed amendments, the heads of the Administrative Prosecution Authority, the State Lawsuits Authority, the Court of Cassation, and the State Council are to be appointed by the president from a choice of three senior judges nominated by leading members of the bodies themselves.

Sharif stated that the relevant judicial bodies would be consulted before the draft legislation went further and stressed that the independence of the judiciary would not be affected. However, the initial brainstorming and drafting process took place without the judiciary’s participation and despite its immediate push back.

As a more outspoken and powerful stakeholder than the Ministry of Social Solidarity, the judiciary will likely put up much more of a fight. In fact, on December 25 it was reported that the bill had been tabled until the opinion of judicial bodies had been taken into account. A year ago, the judiciary successfully resisted other changes that followed a presidential demand for swifter and harsher action in terrorism cases. But with several recent court judgments annoying the regime—most notably involving its decision to concede Saudi sovereignty over two islands—it is possible that the message of the legislation is best viewed as a warning that those who stick out their necks will find their heads chopped off.

Three and a half years after he announced the overthrow of Muhammad Morsi as president, Abdel-Fattah al-Sisi remains the dominant figure in Egyptian politics. But the nature of the authoritarian system Sisi heads still has murky lines of command and decision within its own ranks. What seems to be emerging is a state ruled from the presidency, the military, and the security bodies with the relations among them hidden from public view. However, the results of their decisions and the general contours of the regime they are building are fairly clear for those who read the boring news.

 

Mai El-Sadany

Mai El-Sadany

Mai El-Sadany is the Non-Resident Fellow for Legal and Judicial Analysis with TIMEP. She has previously worked at Robert F. Kennedy Human Rights; the American Civil Liberties Union; Human Rights First; Kohn, Kohn, and Colapinto LLP; and the Carnegie Endowment for International Peace. Ms. El-Sadany has been published on legal and constitutional issues in Egypt, sectarian violence in the Middle East, and the split between Sudan and South Sudan. She holds a J.D. and certificate in refugees and humanitarian emergencies from the Georgetown University Law Center and a B.A. in political science from Stanford University. You can follow her on Twitter: @maitelsadany.
Mai El-Sadany

@maitelsadany

Human Rights Law | MENA | Non-Resident Fellow for Legal/Judicial Analysis @TIMEPDC | @Stanford, @GeorgetownLaw Alumna | Tweets = My Own | Follow @SyriaCalendar!
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Nathan J. Brown

Nathan J. Brown

Nathan J. Brown is professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace.
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