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Air and Space Power Journal (ASPJ), 2014
"Ever since the creation of constitutions that know the concept of states of emergency, emergency powers have been used by dictatorial regimes to consolidate their position. This is not to say that the legal mechanism of the state of emergency only exists in dictatorial regimes. On the contrary, the state of emergency is a feature of the democratic state. Particularly during natural disasters (wildfires, tornadoes etc.), governors in the United States declare states of emergency in the form of executive orders in order to access federal emergency funds and/or to mobilize the national guard. Due to this administrative function, state of emergency declarations happen in the US more frequently than in other states. This is indicative of the fact that state of emergency declarations are subject to a consideration by the executive branch whether any kind of event can be dealt with within the boundaries of the ordinary laws and regulations. The strategic role of states of emergencies imposed by repressive regimes, however, remains undisputed. Thus, while in general emergency laws are for the most part designed to give an extraordinary measure of flexibility and an extended reach to the executive to cope with a crisis, their effective use and their duration can suggest different end goals, such as the repression of enemies of a regime."
Transitional Justice in the Middle East and North Africa (ed. Chandra Lekha Sriram, Hurst Publishers 2017), 2017
When Egyptian courts sentenced over 1,000 defendants to death in the spring of 2014, and when former President Hosni Mubarak was months earlier acquitted of human rights violations despite decades of documented torture, serious questions arose about the independence of the judiciary. Of all Egyptian institutions, the judiciary’s history of resisting executive interference caused many to believe it to be the least likely to partake in such affronts to individual rights. A closer look, however, reveals that Mubarak’s efforts to curtail judicial independence successfully produced a conservative body whose top echelon supported the law and order narrative that facilitated the generals’ return to rule. As a result, legal reforms are unlikely to come from within the judiciary. This chapter argues that transitional justice did not occur in Egypt following 2011 and stood little chance of occurring for three reasons. First, despite valiant efforts by revolutionary opposition groups that triggered the January 25th uprising, a political transition never materialized. And without a political transition, transitional justice is improbable. Second, a conservative judiciary whose top echelon had been effectively coopted by Mubarak’s centralized executive played a key role in ensuring that no political transition could occur. Finally, the different opposition groups calling for transitional justice, and in effect a political transition, diverged in their expectations of what that entailed. Revolutionary groups including youth activists, labor activists, and progressives called for thick rule of law that would overhaul the legal system substantively, rather than only procedurally. As they chanted “The People Want the Fall of the Regime,” they demanded that government affirmatively improve the lives of Egyptians through distributive justice. In contrast, established secular liberal opposition groups and the Muslim Brotherhood (MB) were satisfied with establishing thin rule of law that enforced procedural protections against everyone, including the political elite. The established opposition was focused on reforming the existing legal system rather than developing new structures to redress decades of political suppression and corruption. In the end, transitional justice proved elusive, denying many Egyptians a remedy for decades of tyranny under Mubarak. In analyzing why the courts failed to meaningfully hold Mubarak era officials accountable, Section I begins by examining rule of law as a contested concept whose definition depends on the proponent’s ideological leanings. Section II proceeds to describe the restraints on Egypt’s judiciary leading up to January 25th which contributed towards its circumspect stance toward the uprising. The executive branch had put in place various structural mechanisms to restrain the judicial leadership from being led by judges acculturated and empowered to uphold the law irrespective of its impact on the executive’s power. Indeed, independent adjudication entailed prohibitively high costs to a judge’s professional and personal life, including unfavorable judicial appointments, disparate disciplining and transfers, and denials of certain promotions. The Judicial Authority Law of 1972 that governs the judiciary coupled with informal coercive tactics incentivize judicial self-censorship and voluntary compliance with executive branch expectations. Finally, Section III examines how Egypt’s judiciary impeded the transitional process through its cooperation with the Supreme Council for the Armed Forces (SCAF) and defiance of Morsi. Specifically, the SCAF’s constitutional declarations and executive decrees were consistently upheld as lawful while the Morsi regime’s actions were heavily scrutinized by a skeptical judiciary with an apparently obstructionist agenda. Indeed, the Supreme Constitutional Court issued decisions clearly aimed at handicapping a president from the long distrusted MB. Although the judiciary is not monolithic, a sufficient number of judges at the helm of a centralized governance structure, coupled with a powerful and politicized prosecutor-general, had vested interests in cooperating with the military-security apparatus to sabotage the young revolutionaries’ reform efforts and prevent any systemic restructuring of the political and economic system.
Police forces and security agencies genuinely accountable to democratically elected civilian authorities have not emerged in either Egypt or Tunisia four years after popular uprisings forced the countries’ longtime leaders from power. Ministries of interior remain black boxes with opaque decisionmaking processes, governed by officer networks that have resisted meaningful reform, financial transparency, and political oversight. Until governments reform their security sectors, rather than appease them, the culture of police impunity will deepen and democratic transition will remain impossible in Egypt and at risk in Tunisia.
Connecticut International Law Review, 2015
Despite warnings that bleak socio-economic conditions were pushing Egyptians to the brink, few could have predicted the timing and extent of what has come to be known as the “January 25th revolution.” For the two years that followed this unprecedented revolutionary moment, many Egyptians believed their nation was headed toward a political rebirth in the direction of democratization – albeit in fits and starts. But what ultimately transpired was far from a revolution, but rather an uprising. Those who risked life and limb in multiple mass protests are now in jail or dead while the military-security apparatus sits firmly at the apex of power. Rather than join other countries moving forward toward a free society, dissent in Egypt is brutally crushed harking back to Gamal Abdel-Nasser’s pervasive police state. This article seeks to answer the question on the minds of millions across the globe who witnessed Egyptians inspire the world as they rose up against a brutal authoritarian state: What happened to Egypt’s revolution? In hindsight, it has become clear that the moment the Egyptian military took on the official reins of leadership through the Supreme Council of Armed Forces (SCAF) on February 11, 2011, a pall was cast on the people’s revolutionary aspirations. What was supposed to be a historic political opening to transition Egypt onto a more democratic political trajectory resulted in a regression to military domination where soldiers, rather than civilians, control the levers of political, economic, and security power. This is part of a larger project that addresses the role of law and the judiciary in Egypt’s stillborn revolution. As such, this article provides the political backdrop in the lead up to January 25 and the key political decisions made by the SCAF and the military-backed interim government led by President Adly Mansour, which lays the foundation for my future articles on the Egyptian judiciary and the role of law in Egypt’s post-January 25 aftermath. In doing so, I analyze the historic events of the past three years to address the first of two pressing questions: 1) did January 25, 2011 permanently redirect Egypt’s political trajectory toward a more democratic, openly contested political system and 2) what role did the law play in producing the outcome? Here, I argue that, as of the fall of 2014, Egypt shows signs of increasing political contestations at the margins while simultaneously regressing to repressive state policing practices firmly under the grip of the military. There is a growing tension between Egyptian youth’s expectations of meaningful political change, regardless of their political or religious persuasions, and the state apparatus reverting to calls for stability at the expense of political rights. In the end, the military hijacked a revolutionary moment by transforming it into a mere uprising. Recognizing Egypt’s missed opportunity to have the revolutionary outcome called for by its youth paves the way for an honest discussion on whether a real revolution is imminent, if not inevitable.
Recent political and legal developments within the Arab region have resurrected previously dormant historical debates and endowed them with a new life and vitality. The theory of exceptionality has been prominent within these debates, being repeatedly reasserted in different constitutional drafts, and even celebrated, as a means through which political authority maintain and secure ‘the public order’. Over the course of the 20th century, the debates about the state of emergency being a ‘profoundly elusive and ambivalent concept’ have been analyzed in as an act of political governance. Egypt long lasting rule relying on an emergency context has provided a worthy manifestation of how emergency rule had been installed in political and legal settings; and become presented as an only way to govern. The emergency rule had been incorporated in different constitutions and manifested into a political exercise. we argue in this matter that to why post-revolutionary regimes have failed to deliver a meaningful transformative constitutionalism that is based upon the principle of the rule of Law and continued to rely on the emergency status as module of governance. In this matter, we try to feature that this failure is related to three arguments; the first is that the exceptional ruling has been institutionalized in most of the political and legal settings since Nasserism; in which the revolution wasn’t able to change, nor did new constitutions introduce substantive changes to these dynamics. Second, that post-revolution regime used the exceptional status as way to legitimize their ruling through the political rhetoric of securitization, and thirdly the state of exception became normalized in the everyday political and legal settings.
European Parliament, Directorate-General for External Policies, Policy Department, 2012
2013
Crown Center for Middle East Studies, 2012
Journal of Social and Political science, 2019
Egypt and the Contradictions of Liberalism: Liberalism, Intelligentsia, and the Future of Egyptian Democracy, 2017, 2017
Middle East Law and Governance - Volume 7(2), 2015
Emory International Law Review, 2014
Democracy and Crisis: Democratizing Governance in the Twenty-First Century (Palgrave Macmillan), 2014
Respublica Litereria , 2019