Harsh as the government of Abdel Fattah Sisi continues to be it has suffered some significant setbacks at the hands of the judiciary, the religious establishment and the parliament. This is so despite its tens of thousands of political prisoners and severe repression of civil society associations committed to defend free expression and the rule of law as well as its more obvious political opponents. Each individual defeat can be explained as the result of a combination of idiosyncratic factors, but the growing list suggests reconsideration of our understanding of the regime as simply an authoritarian state.
These conflicts are worth attention because these institutions have been so closely identified with the creation of the current regime. Many trial judges enthusiastically supported the new regime and issued guilty verdicts against a wide swath of opponents of the coup who were frequently labeled terrorists. In hundreds of cases defendants were sentenced to death and in thousands of others they were given long prison terms. The chief justice of the Supreme Constitutional Court served as interim president. Leading religious figures, including the head of the Azhar, associated themselves with the ouster of former president Muhammad Morsi and with Sisi himself. The parliament, elected in 2016 under the constitution that replaced the one written during the Morsi era, is widely viewed as a docile, rubber stamp. It affirmed most of the decrees Sisi issued during the year and a half in which Egypt had no legislative body whatsoever. Parliament was to some degree the creature of the intelligence agencies which influenced the election process. To the extent that it represents anyone at all, it represents the interests of powerful local elites who were threatened by the Muslim Brotherhood and the Morsi presidency. The religious establishment, notably the head of the Azhar but including past and present officials, opposed the Morsi government and publically provided support to the coup in the days leading up to it and in the formation of the government afterwards.
There is a widespread presumption that each of these institutions is subservient to and directly controlled by the president. This may not be the case. It may, in fact, be the case the Sisi presides over an elite coalition whose internal disputes and conflicts make its members difficult, if subordinate, partners in the current regime. It is convenient to think of each of these institutions as completely under the control of the armed forces, President Sisi, and the security forces. They are certainly not independent or unaffected by the army, the president, or the intelligence agencies, but they also have independent reasons to support the current regime and on occasion to dissent from its policies. Examining those moments of dissent is revealing of the contours of the Egyptian state and politics today.
Contemporary political science has a dichotomous understanding of political regimes: democratic or authoritarian. Although there are various “flavors” of each type, when political scientists speak of the types of governments there are they invariably are interested in how political officials are chosen. Speaking of democracy it is common to point out that more than free elections are required and to propose a list of individual freedoms that democracies must protect if they are to be considered real. Political science describes dictatorships in a variety of flavors which themselves are largely devised to explain how public officials are chosen or choose themselves.
Interesting as this is and useful as it may be for American policy makers and pundits, it is different and possibly far less sophisticated than the political analysis of political regimes that dominated much European political thinking for hundreds of years when there were no democracies and most executives were ruling monarchs. During the centuries in which early modern Europe was made, almost no states were (in our contemporary sense) democratic nor was democracy generally conceived as either a viable or a valuable form of political organization. Until very recent times, when critics of autocratic rule thought about how socially prominent, politically powerful, and wealthy groups could temper the power of centralizing rulers they rarely mentioned democracy and they paid little if any attention to the rights of the lower classes, women, or religious minorities. They thought in terms of aristocracies, oligarchies, or mixed governments in which elites shared power.
Egypt is by no means a democracy and the government does not shrink from savage violence. We can understand it better if we think of it as an oligarchy composed of a coalition of interests and institutions. We can ask ourselves when their interests (both material and institutional) are aligned or at cross-purposes. Doing so casts light on contemporary Egyptian politics and it also casts light on why Egypt, in the wake of the Arab Spring, has turned out to be a very different place than Tunisia, Yemen, Syria or Libya. This is not to say that Egypt today is in a better place than its neighbors or even a particularly good place, only that it is worth trying to understand how it is different.
The regime is not unstable and the president will usually get his way, but occasionally some actors manage to outmaneuver the president. They do so at least partly to keep their own institutional power intact as well as for more direct reasons of interest. The Egyptian parliament, the Azhar and the judiciary are closely aligned with the presidency but they also have significantly more autonomy than at any time in the last 60 years with the obvious exception of the brief period between January 2011 and July 2013 when one repressive regime ended and another began.
Among the most recent and perhaps important defeats of the president came with an attempt to cede arguably Egyptian territory to the Kingdom of Saudi Arabia, with the attempted passage of a law regulating the civil service, and most recently with the attempt to eliminate men’s right to divorce their wives verbally. In each case the government’s position has faced some significant popular opposition but also ultimately was rejected by the judiciary, the legislature, and the religious establishment respectively. Each of these challenges to presidential authority occurred openly. The fate of the islands and divorce remain open but the government made at least some concessions on the civil service law.
Defense of the nation’s borders is a constitutive element of modern nationalism. National sovereignty over national territory has mobilized Egyptians for more than a hundred years. British troops did not completely leave the country until 1954 and Israeli troops occupied the Sinai Peninsula in 1956 and again between 1967 and 1982. Between 2011 and 2013 there were rumors that President Morsi planned to give Sinai to the Palestinians so that they could withdraw from Gaza and create a state. During those same years Egyptian army officers also frequently warned of plans to divide the country into separate statelets. Unfounded and ridiculous as these rumors were, they served to intensify a sense of existential threat and the fragility of national sovereignty.
The failure of the armed forces to prevent the creation of a sovereign Israel in Palestine in 1948 was a proximate reason for the military seizure of power in 1952. The army’s defeat in 1967 was a deeply-felt national catastrophe weakening the Nasser regime. President Sadat carefully nurtured the image of the 1973 war as a military victory to enhance his legitimacy as did President Mubarak after Sadat’s assassination. Even intellectuals highly critical of the Nasserist regime and its repression have expressed fears that integration into the global economy could threaten national sovereignty.
Egyptian writers have, on occasion, expressed popular fears about tyranny, corruption, and existential threats to the nation. Sometimes these expressions have been humorous and sometimes nightmarish. Gamal Al-Ghitani is known in the US and Europe, to the extent that he is known at all, as the author of the short novel Zayni Barakat. It first appeared in Arabic as a magazine serial in 1971 and in 1974 as a single volume. Its English translation, introduced with a foreword by Edward Said, provided a much wider audience with access to a story of how a police state works. El-Ghitani set his account of authoritarian excess in early 16th century Mamluk Egypt. Other accounts of the Nasserist state by authors like Naguib Mahfouz such as Karnak Café were set in the historical present. While they detailed the ethical and physical destruction such government produced they did not portend the collapse of the state. By setting his novel just as the Ottoman conquest of Egypt occurred, El-Ghitani seemed to suggest that authoritarianism had deep historical roots as a strategy for governance but that it also created a government that could be fatally unresponsive to external challenge.
By the time of his death in 2015 El-Ghitani had long ceased to be an insurgent figure in Arabic literature or the Egyptian literary establishment, but his early work remains a useful touchstone. The recent decision by the Egyptian Supreme Administrative Court voiding a treaty that would have ceded two islands in the Red Sea to Saudi Arabia makes it worth revisiting his 1978 story, “What Happened to the Land of the Valley” written when Israeli troops occupied the Sinai Peninsula and Israeli settlers built towns along the northeast coast.
“No one knew when it began,” Ghitani opens his story, but voices were raised against allowing foreigners to own land even then. Elements of irony abound when we learn that initial purchases include not only apartments and small stores but even pavement. A dystopian global market drives foreigners who can no longer afford housing in London, Paris, and Sidney to buy more and more property in Cairo and its environs. When they have purchased the entire country the new owners attempt to evict the inhabitants. The eviction is thwarted by the discovery of an acre in Upper Egypt which remains out of their possession. In a dramatic but uncertain conclusion thousands of Egyptian men, women, and children link arms to protect the acre from being flooded as the alien purchases open dams and dikes to flood the single crucial acre of sovereignty that remains.
When it was announced in early 2016 that the Egyptian government planned to cede control over Tiran and Sanafir, two islands between the Sinai and Arabian peninsulas to the Kingdom of Saudi Arabia, Egyptians were stunned. The Saudi government claimed that Egypt had occupied the islands in the mid-20th century at its request to protect them from Israel. Egypt was not ceding territory; it was simply returning islands mid-way between the Saudi and Egyptian mainlands to their original sovereign.
The government never gave a clear reason for the transfer and popular and elite suspicions blossomed that the regime was exchanging the national territory for billions of dollars of aid it had already received from the Saudis. These concerns are not new. The billionaire Saudi investor and prince Walid Bin Talal was forced to relinquish an agricultural project in Upper Egypt in the early months of the 2011 uprising due to widespread concerns about corruption and undue influence over the Mubarak government.
It is not surprising that intellectuals, activists, and ordinary citizens quickly moved to stop the transfer. Public demonstrations occurred despite a ban that has frequently been enforced with murderous violence. Khalid Ali, an attorney and leftist opposition candidate for president in 2012, initiated legal action. Within weeks historians, legal scholars, and others identified decrees, maps, and legislation showing that that the islands were subject to Egyptian control in the late 19th century. If so the islands would have been Egyptian well before the Saudi state came into existence. This matters because the government cannot, under the existing constitution, alienate Egyptian territory. The government’s initial explanation of the transfer of the islands was that it resulted from delineating the Egyptian-Saudi maritime boundary. The argument for border delineation made the transfer an administrative decision rather than a legislative act. Just for this reason the ultimate arbiter of the legality of the transfer was the High Administrative Court rather than the Supreme Constitutional Court. The court determined that the evidence put the transfer outside the administrative power of the executive authority. It could only be accomplished by a legislative act regarding the sovereignty of the state.
The generally compliant legislature has not voted either to transfer the islands or to grant the president the right to do so. This is not the first time the legislature has been recalcitrant to government initiatives. In January 2016 the legislature, reviewing laws promulgated before it was seated, rejected President Sisi’s civil service law by a vote of 336 to 150. The law, a revision of the pre-existing law on the civil service, aimed to make it easier to discipline workers and to fire them as well as to cut the growth of wages paid them. It was unpopular with civil service employees and their unions and led to public protests that, although illegal, were not dispersed with the kind violence deployed against political protests.
A revised civil service law was enacted at the end of 2016. The new law provided greater financial incentives to government employees than the original proposal and was clearly a defeat for Sisi. Egyptian analysts differ over why the legislature opposed Sisi on this issue. Some have argued that the police played a significant role in electing the current parliament and that the conflict over the civil service law reflects a continuing conflict between the police establishment and the military. Another possibility is that Sisi’s decree in July 2015 that the 75% of the seats in the parliament would be individual candidacies and only 20% party lists has had unforeseen consequences. Individual seats strengthen the candidacies of wealthy businessmen and influential families whose interests are not wholly dependent on the regime. Consequently the creation of the majority “For the Love of Egypt” list by the late military intelligence officer, Sameh Seif El-Yazal, did not or could not re-create the kind of pliant partisan apparatus that former president Mubarak had with the National Democratic party. Weakening the legislature may, in fact, have weakened executive control over the legislators. Lastly, the choice of the issue over which the legislature confronted the executive is meaningful. Over the last 20 years employment in state-owned industry has markedly declined as privatization and market-oriented policies have dramatically decreased the size of state-owned industry. Civil service employment has decreased but remains large. As an example of what this means, in 2010, government statistics indicated that just over 12% of Egyptians were employed in manufacturing which is increasingly in private ownership and almost 9% were employed in education which remains largely a public function and almost another 8% were employed in either the civil or defense administrations.
Fifty years ago the laws governing civil servants affected only a small, relatively secure portion of the workforce. As the work of Egypt’s Nobel prize winning novelist Naguib Mahfouz recounts, these employees may have been subject to chicanery and mis-treatment by their superiors but their positions were nevertheless largely understood as desirable. The Egyptian public service has grown larger and wages, especially at the lower levels, have become increasingly hard to live on while service rendered the public has become increasingly poor in quality. Less secure tenure not only eliminates one of the important perquisites of the positions but is widely understood to make employees even more subject to the whims of supervisors.
That parliament defended its own constituency is by no means an indication of its support for freedom of expression, liberalism, or support for any greater principle of good governance or democracy. Parliament has stripped two members of their seats in the last year. The first, Tawfiq Okasha, was ousted by a majority for having had contacts with the Israeli embassy without first gaining parliamentary approval. The second, Mohammad Anwar Esmat al-Sadat, nephew of the late President Anwar el-Sadat, was ousted recently for his attempt to prevent passage of extremely restrictive legislation governing the work of non-governmental organizations and his disclosure of wasteful spending on parliament itself.
Last, the regime has felt disaffection from the religious establishment including the public expression of discontent by Shaykh al-Azhar Ahmed al-Tayyeb. The Azhar is often described as a thousand-year old university and the most respected global institution of Sunni Islam. The Azhar does comprise an old and significant set of institutions for religious instruction where many of the officials who oversee Egypt’s mosques are trained. It also provides formal and informal opinions (fatwas) for government and private individuals about the religious character of their actions. Speaking of the Azhar can also refer to the modern university with faculties of medicine, politics and literature or the primary-secondary school system with more than a million students. The “Azhar” comprises a broad array of educational and religious institutions. Like the government educational bureaucracy and the court system, reaches deeply into Egyptian society. Like the army and the bureaucracy the Azhar has not been well or deeply studied, not least because it does not welcome external scrutiny. A poignant account of the life of a fictional Azhari graduate is to be found in Abderrahman Sharqawi’s 1952 novel “Al-Ard” (This Egyptian Earth): a graduate finds himself morally at odds with a government official who steals land from peasants but also finds himself trapped by his own economic insecurity in acquiescing in the theft.
In 2016 the government proposed a change in the law governing divorce in ways consistent with what many analysts have referred to as “state feminism”. Over the last 60 years Egyptian governments have occasionally attempted to use the law to shift the balance of social power toward women. These have generally enhanced the bargaining power of women in family law but without empowering independent civil associations of women. In Egypt Muslim men can divorce their wives at will. Divorce for men is what scholars call performative because saying the words “I divorce you” three times ends a marriage. The act of speaking the words constitutes the divorce which need not be communicated to the wife or registered with the state. Women can initiate proceedings to obtain a divorce but, unlike men, they cannot unilaterally end a marriage. Sissi proposed that verbal divorce be annulled to be replaced by a formal meeting with a religious official. His stated concern is both that there are too many divorces and divorce is increasingly common. Forcing the process into an administrative process might diminish their number if only insofar as it becomes more expensive, more cumbersome, and more public.
Tayyeb publicly opposed this measure which was unpopular with many of the Azhari ulama and especially the governing council. The proposed change may very well disadvantage men to some degree and it is at odds with received practice and understanding of family law as subordinate to Islamic norms. Because the constitution mandates that Islamic legal principles provide the basis of Egyptian legislation there is tension between institutions that claim authority to interpret what constitutes Islamic law or legal principles. These debates have become more acute as two constitutions were written, ratified and approved in referenda in the past four years.
This may appear to be a rather marginal issue on which to oppose Sissi and his government, but it indicates some important disagreement between the Azhari elite and Sissi’s proclaimed project of reforming Islam. There are good reasons for insisting that verbal divorces be registered—not least fairness to women who are divorced without knowing it. There are also reasons why members of the Senior Scholars Council which, in the wake of the tumult of the last few years, now wields significant authority again might reject such a proposal. Azhar has gained both autonomy and a secure constitutional role in the wake of the uprising. Where the head of the Azhar (the shaykh) was formerly chosen by the head of state, he is now chosen by the Senior Scholar’s Council and the constitution guarantees that the institution will receive government support. Azhar’s leaders have every reason to protect it against any encroachment.
Overall, the bench, the officers’ corps, the legislature and the religious establishment supported the coup and the creation of the current government. This is in contradistinction to the 1952 coup, frequently taken as the model and progenitor of Egypt’s current constellation of institutions. In 1952 large sections of the religious establishment and the free professions (from which the legislative elite was largely drawn) opposed the seizure of power by army officers and the Free Officers spent years subordinating the civilian elite to their control. Nasser spent years in frequent, and frequently unsuccessful, attempts to create a single ruling party. The ultimate success of Hosny Mubarak in creating the National Democratic party provided him with a means to transfer authority away from the army and, he seems to have hoped, ultimately to his son. The decision not to encourage a single majority party forecloses a possible repetition of that move but may have strengthened the concern of legislators to retain some independent influence over their electoral fate.
The civil administration has grown larger and far more important in Egyptian political and economic life than it was in 1952 even if it is arguably often over-staffed, less expert and inefficient. As the Egyptian political scientist Ashraf el-Sherif noted several years ago, many of the bureaucratic institutions and ministries have become more autonomous since the uprising. This may have begun during the long stasis of the late Mubarak era but it progressed with some rapidity after the uprising. Institutional autonomy is reinforced by the increased personalization of positions including inheritance. The children of officers become officers; the children of judges become judges; the children of legislators become legislators. The mechanisms may be subtly different in each case but they also reinforce the need and the ability to retain some institutional independence if only to ensure that the children can inherit the positions and authority of the fathers. In several well-publicized cases institutional closure has gone even further so that branches of the judiciary have refused to allow law school graduates deemed socially inferior to enter service.
Egypt is not a democracy nor is it a liberal political order. It may, however, be a mixed political system in which a powerful president is both sustained by and sometimes opposed by other powerful institutions that seek to retain as much autonomy as they can. The set of political institutions that have emerged since the coup are more stable than many people think and can probably survive a transition to a new political leader. To forestall such a transition Sisi will have to ensure the legislature and judiciary both agree to constitutional amendments. But it will take more than simply amending the clause limiting the president to two terms in office. It will also require amending the clause that forbids amending the limitation itself. If there is indeed any desire among legislators and the judiciary to preserve their independence that latter clause is one they will have to hold dear.
Jurists and legislators are now faced with a new challenge: President Sisi’s decision to invoke a state of emergency in the wake of the bombing of churches in Tanta and Alexandria. There is not much reason to think that the legislature will refuse Sisi’s requests to extend the state of emergency. It will be easy as well for legislators of limited horizons to cooperate against a judiciary that is widely perceived as self-interested, illiberal, and cruel. The decline of an oligarchy nourished in the long years of Hosni Mubarak and that flowered in the wake of his collapse will not mean democracy. Could it, however, lead to something worse than the present?