Egypt is not a lawless country. Its legislation is complex and covers many fields. It may be lagging behind on some issues, but this is not the general rule. It also has a judiciary that goes back many years.
The claim that Egypt’s judges do nothing but obey the instructions of the executive branch of government is not true, but to deny that the country’s judges and police officers know each other would be equally erroneous. They may discuss and exchange views, but the general rule is that each person does the job for which he is responsible.
It is true that relations between the state prosecution authorities and the police are quite complex, and that they can greatly vary according to the case in question, the development of the investigation, and the people involved. More often than not, both sides complain, at least in private. But in every country the balance between “cooperation” and “independence” is a delicate one.
It is also true that many of Egypt’s judges are former police officers, but this does not mean that they do not do their jobs properly, and neither does it mean that they do not understand the differences between the two. Some of them were fierce opponents of the former Mubarak regime. To assume that judges who are former police officers represent the police in the judiciary is probably a gross mistake.
Reading different accounts of the post-2011 transition in Egypt, it is possible to be astonished at the amount of time the Supreme Council of the Armed Forces (SCAF), which ruled the country after the resignation of former president Hosni Mubarak, and its aides devoted to sorting out constitutional and legal problems.
The law bound them to do so. When dealing with any governmental administration, one soon discovers that every civil servant knows the law, the rules, and the relevant precedents, and that he also knows how to toy with them, either in a constructive or an obstructive way.
The fact of the law is pervasive, even if it is always possible that those who know the rules may consider this knowledge to be an asset and misuse it. However, the number of legal verdicts that have clearly embarrassed the executive in Egypt has been impressive, and some of these have been very recent. So where are the problems with the legal system in Egypt?
The first problem lies in the conception of the relationship between sovereignty and the rule of law. This is a classical problem: it is possible to consider the law to be the expression of the supreme will and to claim that the will of the sovereign, whether an absolute monarch, the people, or something else, is above the law.
This supreme will can, for instance, declare a state of emergency, as Mubarak did during his period of rule. It is also possible to think that the law is above sovereignty, that it sets limits to sovereignty, and that the law comes first. There are also centrist and more subtle conceptions of the relationship between the two.
The Egyptian state belongs to the first camp. Too often, it looks at the law as a tool to organise its own actions and the duties of its citizens. This instrumental conception of the law can delegitimise the notion of the “rule of law”.
The second problem is that Mubarak and his aides had a specific approach to the problem of the relationship between the supreme will and the law. The law was there to forbid almost everything, and it would be decided on a case-by-case basis whether the law should be enforced or not. In other words, the law forbade everything, but the ruler could be tolerant or benevolent in enforcing it. He often forgave or preferred to look the other way.
This may look smart, as people then could have felt indebted to the president. But in fact it was pernicious. A former British prime minister once told an Arab diplomat who wanted an exception to be made to the UK law, for example, that “I know that the law is unfair in this case, and I am willing to try to modify it. But as long as it is in force you must abide by it. To violate one law is to violate all laws, and this cannot be tolerated.”
Mubarak’s radically different approach, which instead considered the law to be a kind of sword of Damocles hung above people’s heads, inflicted terrible damage to the rule of law in Egypt. I remember visiting some members of the opposition some dozen years ago who were fiercely against a very tough draft law on the media that was being debated by parliament at the time. I was surprised that they seemed to be so relaxed about it. “Mubarak never enforces his restrictive laws, so this one is meant as a threat,” they said. “We are opposing it just in case.”
The third problem is that a new phenomenon emerged some 20 or 25 years ago in almost all the Middle East, including Israel. Some civil servants or law-enforcers started asking questions. “This law seems to be contrary to the law of God,” they said, “so we do not want to enforce it.” You could tell them as long as you liked that the laws in question were constitutional, but they still said that this was “not an answer.”
This idea has some positive aspects, of course, as people may feel there is a divine law, or a natural one, that delegitimises oppressive positive laws. However, the damage inflicted to the authority of the state and the rule of law by such an attitude is obvious. Moreover, it led to the growing influence of religion over legislation. Some interpretations of tradition could oppose some modernising laws and could legitimise others.
The fourth problem is that in many areas the population has preferred “customs” to state law. This can be accepted as long as the former do not contradict the latter. However, this is not always the case, and more and more frequently the state has preferred to placate popular opinion, to restore calm, and to tacitly admit that customs have the upper hand, even if they contradict the law.
The fifth problem is that it should be admitted that the law may often be ill-conceived. It may be wary of individual initiative, and its safeguards and guidelines may inhibit positive ones. Many laws are socialist or statist in inspiration and do not fit with the requirements of a capitalist economy or of some kinds of activity and intervention.
I know of many former officials in Egypt who have broken the law because they were dedicated to the public good. Replacing equipment, a car, for example, may require procedures that can waste a lot of time, and the temptation is to try to get around them.
I knew one widely respected individual who had no objection to doing just that. He bought what was necessary and then started to look for ways to regularise what he had done. He could have ended up in jail, but in the event he saved lives.
One former governor claimed in his memoirs that it would be impossible to do his job without breaking the law, and he seemed quite proud to admit that he had acted illegally thousands of times.
My point here is clear: there is a mindset that says that the law is equivalent to bureaucracy and that bureaucracy is the equivalent of inefficiency. The law is the refuge of those who do not want to move and to help solve problems. This mindset is not a universal one, but it is not a rare one either.
The writer is a professor of international relations at the Collège de France and a visiting professor at Cairo University.
*This article was first published in Al-Ahram Weekly