JURIST Guest Columnist Tamir Moustafa of Simon Fraser University in Canada says that although the Egyptian government's recent extension of the emergency law may be the last in a string of renewals over the past half-century, this does not have pro-democracy activists dancing in the streets...
Like clockwork, this state of emergency has been continuously extended in order to maintain the regime's grip on power. However, the periodic renewal of emergency powers may finally be in its last cycle for the first time in a half-century. You might think that pro-democracy advocates are celebrating in the streets of Cairo, but they are not.
Here's why: Beginning in 2005, President Hosni Mubarak and his ruling National Democratic Party (NDP) began pushing through dozens of political reforms. All were packaged as progressive openings in the political system. In reality, they have done quite the opposite.
Take the first multiparty Presidential elections in 2005. Framed as a historic step, the actual nomination procedures as they now stand require a threshold so high that it is unlikely any parties will qualify to run candidates in 2011. And the leading candidate from the 2005 Presidential election? He's still in jail.
Similarly, President Mubarak promised that he will abolish the emergency powers that have been in force for the entire 27 years of his presidency. He may hold true to this commitment before the current emergency law expires, but if this comes to pass it is only because the regime will have completed a fundamental reengineering of a more foolproof legal system.
For at least two decades, the ruling NDP has progressively moved aspects of the emergency law into other areas of the legal code. Opposition parties, human rights groups, and civil society activists used the Egyptian court system throughout this process to fight the web of illiberal legislation spun out by the ruling National Democratic Party. They often achieved surprising legal victories.
But in the past seven years the legal battle became progressively more difficult. The Egyptian Supreme Constitutional Court lost much of its mettle when it was packed in 2001, and the ability of rights groups to effectively challenge government legislation was lost in the process. More worrisome for the long term has been the government's initiative to embed the most draconian aspects of the emergency law right into the Constitution itself. The most egregious example of this is Article 174 of the Constitution, amended in 2007, which now provides the President with the power to transfer all terrorism-related cases from the regular judiciary to military courts. What was once a procedure governed by a legal statute is now melded into the fabric of the Constitution. A new terrorism law, due out sometime this year or next, will also most likely be drafted with loose and ambiguous language, allowing for the effective transfer of all political opponents into parallel legal tracks with fewer due process rights.
All of this has made opposition activists nervous indeed. Already, activists of all stripes have felt the sting of the emergency state security courts. And despite the fact that the Muslim Brotherhood renounces violence and has worked for change within the political system (they hold nearly all of the opposition seats in the People's Assembly), they are periodically detained without trial and taken before military tribunals.
In many regards, the Egyptian story is similar to that of other states in the current wave of authoritarian consolidation. Like Russia, Venezuela, and others, the Egyptian regime has not cast aside law and legal institutions. Instead, the regime has actually made "rule by law" a central instrument of political control, going so far as to entrench these changes in the Constitution.
If and when the Egyptian government stops renewing its state of emergency, it should not be viewed as a mark of progress. Rather, it will indicate that a fundamental illiberal reengineering is complete.
Tamir Moustafa is Associate Professor of International Studies at Simon Fraser University, British Columbia, Canada. He is the author of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press, 2007) and co-editor (with Tom Ginsburg) of Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press, 2008)