Ryan J. Suto's Blog

22 December 2014

Egypt’s New Terrorism Law

The original can be found at the Atlantic Council here.

Egyptian president Abdel Fattah al Sisi approved a new terrorism law earlier this month. While disturbing, the law is not surprising when viewed in the context of Egypt’s consistent rhetoric of its war against terror. With the Egyptian militant organization Ansar Bayt al-Maqdis recently pledging allegiance to the Islamic State of Iraq and al-Sham (ISIS), the threat is real. The recently passed law, however, comes at a high cost. 

First, the terrorism law is deeply flawed, as it is overly vague and allows legal culpability for constitutionally-protected actions. According to Article 1 of the new law, “a terrorist entity is any group which disrupts public order or threatens the safety, security or interests of society, or harms or frightens individuals or threatens their lives, freedoms, rights or security or harms national unity…” Here, any organization that the Egyptian government claims has ‘disrupted public order,’ ‘threatens the interests of society,’ ‘frightens individuals,’ or ‘harms national unity’ can be labeled a terrorist organization. In reality, any organization which publicly expresses displeasure with the social or political status quo in Egypt could foreseeably fall into one of these categories. 

The Cairo Institute for Human Rights Studies criticized the potential designation as a terrorist entity any group which calls “through any means to stop a specific law or overturn a court verdict,” noting that such wording could include peaceful political expression. Free expression is guaranteed in Article 65 of Egypt’s constitution. This law, however, empowers the government to label organizations which peacefully and constructively express political or social opposition as terrorists. In practice, this law could be used to silence, for example, organizations calling for protests against the verdict in which charges were dropped against ousted president Hosni Mubarak.

Second, the law gives the executive branch of the Egyptian government potentially damaging power over the rights of Egyptians with no or insufficient due process. The government first has the right to dissolve, freeze the assets of, and arrest the members of an organization designated as a terrorist entity in a manner discussed above. Under Article 74 of the Egyptian constitution, a political party can only be dissolved by a court judgment. The government can also create a listof terrorist entities (Article 2) and a list of national security threats (Article 5). In short, the executive branch, security forces, and the public prosecution are empowered to identify and eliminate terrorist organizations by ending the organizations’ activities and seizing their property. 

Missing from the bill is any judicial or legislative involvement, and no requirements of evidence are to be submitted to any independent reviewer. While groups areallowed to appeal decisions labelling them terrorist entities, the label itself allows wholesale removal of all political, property, and monetary rights, which would only be restored if the appeal were successful—a process which the law itself allows to take up to three years. Effectively, the Egyptian government can unilaterally remove all functional rights from any organization without having to present any evidence of its claims for three years, potentially violating constitutional Article 54’s due process requirements for restricting rights and freedoms.

When considering the political context of this law, is important to remember that Egypt does face legitimate terrorism threats, primarily but not exclusively in Sinai. Ansar Bayt al-Maqdis has been a thorn in the side of every Egyptian government since 2011 and shows no sign of stopping. The Egyptian people have legitimate fears of violence which any government would have to address. 

However, laws which combat terrorism but still allow for free political expression exist both within Egypt and around the world. Article 237 of Egypt’s constitution, for example, allows the government to combat terrorism, but cannot logically be inferred to violate the free expression guarantees of the same document while maintaining consistency. The removal of all rights from peaceful and lawful organizations will not defeat Ansar Bayt al-Maqdis, and the Muslim Brotherhood has already been prevented from functioning, had its assets frozen, and has been declared a terrorist organization. The terrorist entities law is yet another example of legislation passed by the Egyptian authorities which aim to restrict public space. It joins the so-called NGO law, which has given the Egyptian state regulatory authority over NGO funding and activity, and a restrictive protest law requiring that the ministry of interior receive prior notification of all demonstrations.

In the context of these previous legal actions, the goal of Egypt’s new terrorism law appears to be to suffocate the country’s civil society by granting the government the ability to eliminate any group it sees fit without providing evidence or reasoning. The ambiguous wording also affords it the opportunity to silence critics, activists, and journalists. This will chill any attempts to present alternatives to the political or social status quo, which is a key function of civil society and a free media in a liberal democratic society. 

14 December 2014

Explaining America: #BlackLivesMatter and CIA Torture

One of the hats I wear is a teacher of English as a new language, mostly to new Americans. They all came here for a reason—for a better shot at happiness—and as such generally have a personal stake in the American Dream not only being a reality, but having room for them and their children, as well.

In order to present a full picture of the United States, however, I try to allow the students to draw their own conclusions from the country’s past: our relations with Native Americans, our Founding, our reactions to the various waves of immigrants, the history of slavery and its role in our governmental development, and the Women’s Rights, Civil Rights, and Gay Rights movements. The 2000 presidential election, for example, is a great lesson on our respect for governance institutions. I try to highlight the pressures and interests which explain what seems bad about American history and note the asterisks which often follow what seems good about American history.

In previous months, I have been asked questions which lead to teachable moments. An individual burning a Quran in Florida leads to a wonderful discussion of free speech and the path of 1st Amendment litigation during the 20th Century and where it stands today. A discussion on curbing climate change leads to a mention of the Kyoto Protocol, and therefore a lesson on the concept of dualism in international law. The controversies surrounding the Affordable Care Act can lead to an important lesson on federalism.

This past month has been different. Sure, the grand jury verdict regarding the death of Michael Brown led to a discussion about evidence and the presumption of innocence, but the verdict following the death of Eric Garner made the previous lesson feel hollow. Of course the CIA Torture Report can bring to the fore the separation of powers, but the existence of such programs which are so obviously “contrary to our values” is difficult to present in a non-judgmental way.

I love my country. I view America as a good literary protagonist: she has a complex past and she does make mistakes, but she’s affable and fundamentally good. These terrible news stories, however, have made explaining America more difficult and more troubling. Are Jim Crow and Korematsu really just skeletons in America’s closet, or are they examples of her deep flaws which she refuses to address? December 2014 suggests the latter.

The beauty and frustration of a federal republic is that no single institution can address these flaws alone. But America’s story is not over: We The People must actively engage in all levels of governance in order to write the chapter that we wish to read. Looking forward to 2015, I hope we write for America a better future, so when it eventually becomes the past itself, the job of explaining America will be an easy one.

06 November 2014

Simplistic and Orientalist: How Atheists Attack Religion

Over the past month a refreshed debate between atheism and Islam has been raging in the Anglosphere. While hardly new—Atheists have been intellectually attacking religion in general and Islam in particular since 9/11—this debate has intensified since the exploits of the “Islamic State” have given rise to a new brand of religiously-inspired violence which has terrified much of the West. Bill Maher, Reza Aslan, Ben Affleck and Sam Harris have been the most high-profile participants in this debate by shouting past each other on television.

But while religion genuinely has much to answer for regarding its place in and contribution to the modern world, much of the criticism by the so-called New Atheists has been simplistic and Orientalist—offending many and leaving others unconvinced.

An atheistic point of view

For those who view religion and religious belief as outsiders, it is clear that there are many troubling features of religiosity which seem antiquated at best and dangerous at worst. For example, one of the many objections to religion by Western seculars is the jailing of people like Jabeur Mejri or the repeated attacks and calls for murder against Danish cartoonist Kurt Westergaard. Both men merely posted depictions of the Prophet Mohamed. Indeed, the mocking or disrespect of any idea should never be met by the threat of physical or legal force. The schoolyard rule remains true here: words are fought with words, and only physical attacks, or the imminent threat thereof, warrant physical responses.

When attempting to discredit religiously based actions, atheists generally ignore arguments of moral relativism and instead argue in favor of universal human rights: protections for free expression, blasphemy, apostasy, and other actions which have been claimed to violate various religious traditions such as homosexuality and a denunciation of gender roles. While some see religion as the source of the conception of universal human rights, atheists find no need for religion here either, and instead find secular sources of human rights.

In the face of violent actions which are claimed to be religiously motivated, many mainstream theists (not to use moderate) attempt to distance themselves from the perpetrators thereof. However, when peaceful adherents of a religion state that violent adherents are not actually following the faith, they are engaging in a no true Scotsman argument which merely pits their interpretation of ancient texts against that of their co-religionists, whom often similarly denounces the pacifism or tolerance of the mainstream.

Reza Aslan tells us that often both the violent and peaceful versions of religion can often be validated by interpretations of the same religious text. As such, deciding who ‘truly’ represents the religion is often a fruitless and impossible task. In defending religion, Aslan states,
People of faith insert their values into their Scriptures, reading them through the lens of their own cultural, ethnic, nationalistic and even political perspectives... If you are a violent misogynist, you will find plenty in your scriptures to justify your beliefs. If you are a peaceful, democratic feminist, you will also find justification in the scriptures for your point of view.
So the pious judge religion by their previously-held views, they do not judge their views by their previously-held religion. If this is so, then it is clear that secular foundations of understanding what is right and wrong are the initial sources of our values, and only later do we mold religion to fit that understanding. It has been clear for some time that religion is not a source of scientific knowledge, and Aslan seems to unavoidably imply that it is not a source of ethics, either.

Nietzsche may not have killed God, but Darwin and now Aslan have certainly neutered him, rendering impotent his follower’s claims of wisdom and social value.

Over simplified argumentation

Despite this seemingly strong intellectual foundation from which atheists can argue, their talking points have undermined their positions by being blatantly simplistic.

For example, whether reading about conflicts in the vast majority of human history or the contemporary Arab world, separating politics, religion, and economics is not only difficult, but it renders analysis nonsensical. Attempting to blame this war or that conflict on religion—or even claiming that certain atrocities would not have occurred sans religious motivation—is an illusory argument which engages in counter-factuals and an anachronistic view of human social organization, as most societies have not viewed these concepts as inherently separate. When even the “Islamic State” imposes a claimed “Islamic customs duty” at the edge of their controlled territory, the goals seem more financial than faithful.

Attempting to remove mixed and alternative motivations like individual variables in a physics experiment shows how much more complicated the human world can be than the physical world. If religion provided the only necessary motivation toward violence, then all religious people would be violent. Once another variable is admitted, the confidence in our conclusions must be questioned: is religion the driver and politics or nationalism or patriotism or xenophobia the passenger, or vice versa? This ambiguity shows that it is supremely foolish to conclude that religion is the source of all of our troubles.

Religion is not ‘off the hook’ for providing an excuse to systematically oppress women, nonbelievers, homosexuals, and others for a majority of human history, however. It simply must reasonably share the blame with other human fears, desires, motivations, and institutions.

The original sin of Orientalism

More insidious than poor reasoning is Orientalism. Herein the term will be used to mean a Western tendency and attempt to simplify, other, and impose external interpretations on Islam. While figures like Sam Harris, Richard Dawkins, and Bill Maher have attacked Christianity and religion in general, Islam has been somewhat of an obsession of these vocal critics.

Harris argues that Islam is simply different: its falsehoods more false, its dangers more dangerous. Harris’s contention that modern terrorism flows from Islam dances dangerously close to belonging on Fox News—and is simply incorrect. But the criticism does not stop at an association with terrorism. “Islam breeds theocracy!” many Western atheists have claimed. Any more than Christianity? The goals and methods of Christians have been, both historically and presently, little different than the goals and methods of Muslims, and 34% of Americans want the United States to be a Christian theocracy. While the support for theocracy may be higher in many majority Muslim countries, it’s important to note that the difference is numerical, not categorical. Up until the 1960s Catholic Church had no requirement that non-Catholics be given rights to practice their religion, a guarantee found in the Quran and many historical interpretations thereof (though subject to the problems of interpretation mentioned above). “Islam is anti-democratic!other Westerners have claimed. Less democratic than Catholicism, with its patriarchal, trans-national hierarchy which emphasizes lay obedience? Many questioned whether Catholic countries could become democratic back when they were the popular group to be othered.

Make no mistake, however: It is specifically Islam which is the object of derision from the New Atheists, not simply non-Western religions. Ignored has been the violence of Buddhists against Muslims, as well as Hindu attacks in India against Hindu female -Muslim male weddings. Just as religious people can justify their motives with religion, these prominent atheists justify their xenophobia toward Islam with critical argumentation. Islam is historically no aberration with respect to other religions on issues of tolerance and violence. Many of its adherents, however, have been the victims of historical and structural violence against their identity groups, the results of which they deal with daily. While there is no acceptable justification for offensive violent action, it is important to understand that this is a background to some of the violence in the Muslim world. Having empathy can allow one to see the broader social and political context in which violence in the name of Islam sometimes occurs. Given similar political and historical backgrounds, violence would find a similar audience within our society, as well. Such empathy would allow us to work with Muslims to mitigate the causes of these exacerbations of violence instead of only addressing their symptoms. But because we live in a post-9/11 world where many Anglophones are unfamiliar with the anthropological context of Islam, the religion of a growing number of those with whom we share our communities, attacking the entire Muslim world is an easy way to sell books and gain applause.

Suggestions for future discussions

Where does the conversation go from here, then? Here are four suggestions for analyzing the role of religion in society and dialogue between atheists and theists:

First, social commentators must take theists at their word when they state religion is the motivation for their actions. Yes, religion is a scapegoat for many, but to impose onto an actor our external ideas of what are his or her real motivations are is simply another form of imperialism. If someone is willing to kill or die for a belief, who are we to not take that person at his or her word, and to simply make presumptions about authenticity and intentions? If the societal value of religion is strong enough to inspire others to commit violence and act immorally, it is a social force worth critiquing. Nonetheless, be mindful about what implicit motivations might also exist: What are their stated goals? What are their methods of achieving those goals? What are the steps taken toward those goals?

Second, religion is simply an identity, which, like any other identity, breeds shared experience, exclusion, animosity, a sense of belonging, and social division. Reza Aslan writes, “As a form of identity, religion is inextricable from all the other factors that make up a person’s self-understanding, like culture, ethnicity, nationality, gender and sexual orientation.” Even Richard Dawkins has conceded that volunteers for the “Islamic State” sign-up more out of a sense of tribalism than religion. Political science has known for some time that divided societies are generally harder to govern than monolithic ones, and in that way the continued existence of religion presents a political challenge across the world.

Third, all beliefs, including democracy and Islam, must be criticized, defended, and mocked. This is because correct beliefs will be found through a free marketplace of ideas, wherein beliefs are attacked, allowing us to see if they are strongly grounded in reason. Otherwise, we would be engaging in censorship, allowing an authority to determine which beliefs are correct or incorrect. Stifling debate and the flow of beliefs artificially limits the scope of belief destruction and creation, impeding the progress of human thinking and innovation.

Fourth, atheists are generally literalists. Many atheists can only read texts, religious or otherwise, literally. In an odd way, atheists need the religious fundamentalist, the person who thinks Adam and Eve really existed and Noah’s Ark was really built. Atheists know how to counter factual claims, and thus take comfort in easily uncovering the meaning of a text upon its first reading. This is why atheists discount religious texts which have inherent contradictions or are as vague as horoscopes in supplying wisdom. Atheists must realize that religion for many, but of course not all, is an emotional connection with others, a sense of comfort, and something which many believers are fine with not analyzing line-by-line. All the Muslims that I have met, similar to any other religious group, simply want to be good people and to have those they respect view them as such. To the extent that religion is involved in that, which varies greatly, they are religious.

Secularism, especially coupled with humanism, offers a strong alternative to religion as how people see the universe and reality. However, when criticizing religion, atheists must be diligent in crafting arguments. Making shallow statements about the blood on the hands of religion or launching thinly-veiled xenophobic critiques toward Islam will not lead to apostasy, but will encourage Muslims and others to do what all humans do when their identity is being challenged by an outside force: double-down and become stubborn. As is true for much of life, humility and empathy on the part of the religious critic here can go a long way.

04 November 2014

The trials of Mohamed Morsi

This was written for Middle East Eye and was originally published here.

The postponed and pending trials of former Egyptian President Mohamed Morsi have punctuated the news coming from Egypt in 2014. But below the transparent cover of legal procedure lies the base political desires of the judiciary: to marginalize and eliminate the defiant Muslim Brotherhood from Egyptian political life.

On 3 July 2013 Mohamed Morsi was removed as President of Egypt. Shortly thereafter, the new interim government detained him; he has been in the custody of the Egyptian state ever since. Later in 2013 the government began to level a series of charges against Morsi, leading to a string of various trials which can best be characterized by Morsi’s defiance to recognize the court as legitimate and the frequent postponements.

Here is a short update as to the status of the trials of Mohamed Morsi. He faces:
  • A trial for espionage, which includes a total of 36 defendants. Most recently, it was postponed earlier this month and will resume on 14 September, at which time media will be allowed to cover the proceedings. The charge alleges the senior leadership of the Muslim Brotherhood conspired with foreign organizations such as Hamas and Hezbollah regarding terrorist activity within Egypt;
  • A trial regarding the charges faced with respect to Morsi’s 2011 escape from prison. On 18 August the case was postponed to 23 August, and then was postponed again until 15 September. An additional 130 defendants await that trial date;
  • A trial for the charge of inciting murder, postponed to 11 October. That trial includes 14 other defendants and is regarding the deadly protests in late 2012 outside the Ittihadeya presidential palace; and
  • Two other charges: insulting the judiciary and economic fraud. Dates are not presently associated with the potential trials originating from these charges.
The noted frequent delays have been most often due to the availability of witnesses or due to the wishes of attorneys involved for the purposes of preparation.

It must be stated unequivocally: these trials are political. This past year has left little doubt that the Egyptian judiciary has become a political actor, and there is no reason to view these Morsi trials as in any way above the political fray. Egypt’s judiciary has not only tried hundreds of defendants at once during trials lasting only a few hours with no procedural protections, but has upheld many of the resulting convictions

The charges against Morsi range from the possibly sound pending the evidence presented (inciting murder against protesters at Ittihadeya, escaping from prison), to the incredibly weak (insulting the judiciary), to the fanciful (conspiring with Hezbollah to commit terrorism). 

The legal merit to these charges under existing Egyptian law at the times of commission will have little to no influence on the outcomes of the trials themselves. Ironically, last October I wrote about Morsi’s potential legal liability under Egyptian and international law regarding the death of four Shia shortly after he spoke nearby in the presence of rather explicit anti-Shia hate speech. That is not among one of the charges here, however. While that case would by no means be a ‘slam dunk’, it stands on more firm legal ground than several of the charges Morsi faces presently.

If the judiciary wishes for the law, and therefore their decisions, to give behavioral guidance to Egyptians and be respected by Egyptians, they must have judicial consistency - or at least provide legally defensible arguments therefor. No reconciliation has been made between the hundreds of death sentences handed down after a few hours of trial and a few dozen charges of insulting the judiciary requiring months of delay occurring within the same legal system and under the same laws. It is clear, then, that the structural health of the judiciary or the legitimacy of Egypt's greater legal system is not the primary concern with respect to these trials.

Viewing the subject more broadly, the trials of both former Egyptian presidents Hosni Mubarak and now Mohamed Morsi represent an ad hoc and ill-conceived version of transitional justice. Each deposed president has been strung along after many delays and multiple charges which are often peripheral to why they were so despised. This is either the result of an attempt to take extreme procedural care when trying a former head of state or a desire to neuter their respective followings by continually placing both men in the public consciousness as merely medium-level criminals, while also being careful not to create new martyrs. 

Regardless of the intention, the approach is ineffective. Those who support Morsi will clearly not disappear as a result of court verdicts, and those who were felool (derogatory term relating to the old regime) with respect to Mubarak’s government have already done their damage by continuing to occupy the machinery of the state to this day. Instead, these drawn-out trials, juxtaposed with the blistering speed of the trials of low-level Muslim Brotherhood supporters, merely give the impression that the judiciary does what serves its own political ends.

The immediate results of the charges against Morsi will follow the political prudence of the judiciary: the trials will be postponed when beneficial, the charges dropped when needed, and the defendant convicted when desired. 

As always, unfortunately, the real victims of the Morsi trials are the Egyptian people. While ideal transitional justice mechanisms remain unlikely to surface in Egypt in the foreseeable future, Morsi’s treatment by a demonstrably biased institution serves only to further polarize, not heal, a public in desperate need for moderate politics. This past year has given no evidence to even the most optimistic observer that the judiciary in Egypt can be a properly principled institution which can be so crucial to a democratic transition.

03 June 2014

A Renewed Case for a Syria Tribunal

This post was written for the Atlantic Council and can be found here.

Last month, China and Russia predictably vetoed a French UN Security Council proposal to refer Syria to the International Criminal Court (ICC). Without Syria’s ratification of the Rome Statute, the Security Council is the only body that can refer investigation of the conflict to the ICC. Although this window has effectively closed, other options exist to hold accountable the perpetrators of the gross human rights violations that have occurred in Syria over the past three years. 

In the spring of 2012 at Syracuse University College of Law, Professor David Crane began a new course, which would become the Syrian Accountability Project (SAP). Professor Crane is a former Chief Prosecutor for the Special Court in Sierra Leone, the tribunal which held former Liberian President Charles Taylor responsible for war crimes. The task of the students in that course was to connect news reports, social mediadocumentation (viewing pictures on Twitter and watching videos on YouTube was perhaps the most difficult task), and other data to attempt to corroborate claims and create a comprehensive narrative of the Syrian Civil War, from the beginning to contemporary accounts. The goal was accountability: the SAP sought to identify individuals who either commanded or performed major acts of violence. Next, the SAP sought to match each entry in its database with applicable law to identify possible violations of international humanitarian law or the Syrian penal code. 

Since then, the international community’s attention toward Syria has waned. Nonetheless, the Syrian people continue to languish in one of the most devastating and thoroughly documented man-made tragedy in our lifetime. The world at large has done nothing to seek justice for Syria.

The SAP nonetheless continued these efforts over the past two years, bringing on other esteemed international jurists and organizations to consider the legal options for transitional justice once the widespread violence ends. Last year this group released the Chautauqua Blueprint, a draft statute for a Syrian tribunal for the prosecution of human rights atrocity crimes. The document is much like a legal Mad Lib, allowing specific decisions to be made at a later time. The drafters of this document understand first-hand the glacial pace of international bureaucracies and internal negotiations when creating transitional justice mechanisms. As such, they attempt to help provide a key structural framework to accelerate the process in any way, because justice delayed is justice denied. 

At the release of the document, the drafters acknowledged that the political context needed for such a transitional justice mechanism might not materialize anytime soon—or perhaps ever. Religious extremism, the Saudi Arabia-Iran regional rivalry, and the US-Russia international rivalry have exacerbated the conflict, made unlikely a diplomatic resolution, and prevented international intervention, respectively. That same political context has kept the conflict going for three years, with no hope to curb the massive loss of home and life, and has now prevented the ICC from gaining jurisdiction over the country. 

Previously, ICC prosecutor Fatou Bensouda stated she would support a special tribunal for Syria if the ICC was not granted jurisdiction over the conflict. This option is not without critics, however: the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia were hugely expensive endeavors that give pause to many when discussing transitional justice. However, the structures recommended in the Chautauqua Blueprint more closely resemble the Special Court in Sierra Leone, which was one of the least expensive ad hoc tribunals to date. The international community also now has greater experience in creating and managing a variety of ad hoc trials, allowing for the implementation of best practices and a more efficient justice institution. 

Any transitional justice mechanism for Syria cannot begin functionality until a majority of the violence has ended and either a peace is brokered or a side is vanquished; sovereignty dictates that those in power must accept such a judicial mechanism. Any such structure would benefit from the incorporation of the Syrian penal code under the principle of complementarity and charge the gravest crimes against humanity as representative of the acts that have been occurring throughout the Syrian Civil War. A formal transitional justice institution should also complement an iteration of a truth commission which would concentrate on restorative justice for victims. Most importantly, a tribunal for Syria must be able to seek the justice which the Syrian people want. The Chautauqua Blueprint is an example of just that structure. 

Last week the international community again failed the Syrian people by not submitting the country to the jurisdiction of the ICC. The world has been unable or unwilling to stop the violence and now appears unwilling or unable to hold the perpetrators of that violence accountable. An ad hoc criminal tribunal for Syria, however, can still help bring justice to a people that have been victimized for so long. It is, quite honestly, the least we can do. 

28 May 2014

Pillar of autocracy: Egypt’s presidential election law

This post was written for Middle East Eye and can be found here.

Earlier this year Egypt’s interim government promulgated a new law to govern the country’s presidential election. That law regulates the administration, adjudication, and validation of the campaign period and electoral process of this week’s vote. The law has created a legal structure which has buttressed the political context created by the interim government to guarantee an electoral result amicable to the state’s interests.
Like any law, the presidential election law contains many unremarkable articles. For example, the total number of required endorsements needed to collect from the Egyptian people decreased from 30,000 for the 2012 presidential election to 25,000 this year. Nonetheless, in 2012 there were 13 candidates for the presidency; this year there are only two: former Field Marshal Abdel Fattah el-Sisi and Hamdeen Sabbahi. This likely has more to do with the process being viewed as a sham than the legal requirements for candidacy. However, the most important feature of the law is the new Presidential Election Committee (PEC), which is composed of present judicial Egyptian authorities who will act as an electoral management body.
The PEC has a broad range of powers and discretion: it alone creates a timeline of the election, approves the candidates, creates voter lists, administers penalties for interfering with the election, decides on polling locations, and reviews challenges to any election-related governmental action or claims of election fraud. Under Article 6, the PEC has the power to ensure equal treatment of the presidential candidates in state-owned media. Generally, it has broad control over the media, candidate campaigning, and campaign finance during the electoral period, and has prohibited campaigning two days before voters go to the polls.
Under the 2014 Egyptian constitution, polling stations will be supervised by members of the judiciary appointed by the PEC. The presidential election law allows for each presidential candidate to have a representative at each polling station, as well. Interestingly, the International Foundation for Electoral Systems (IFES) has suggested that the PEC should require the polling station official to initial or sign ballot papers before distributing them to voters as a protection against ballot counterfeiting. It remains to be seen if this recommendation is incorporated this week. After the election is over vote-counting will occur at the polling stations in front of the authorized observers such as the PEC and candidates representatives, and approved external actors such as the EU, the African Union, and Democracy International.
The most troubling characteristic of the presidential election law is that all decisions of the PEC are only reviewable by the PEC itself. No decisions can be appealed to an external judicial or government entity. Especially interesting, under Article 228 of the 2014 Egyptian constitution, this will be the only election managed by the PEC; future presidential elections will be managed by the national election commission (NEC), which will be in charge of Egypt’s legislative elections later this summer. The decisions of the NEC are in fact appealable. So why did the military-backed interim government create a body of named members of the maligned judiciary to have un-reviewable authority over only one election in which former Field Marshal Abdel Fattah el-Sisi has been heavily favored for some time? As the interim government could have easily allowed for appeals to the Supreme Constitutional Court, the answer can only be political in nature: the assurance of a state-desired result.
Beyond the law itself, there will be no surprise on 5 June if the results are heavily in favour of Sisi. Religiously-based parties, the Muslim Brotherhood, and April 6 have been banned and dissenters have been jailed, leading Marc Lynch, Director of George Washington University’s Institute for Middle East Studies, to write that the election is occurring “amidst a massively repressive atmosphere of intimidation, arrest, and institutional bias.” A free election cannot occur in the context of violence and fear which the interim government has created, as the opposition has no reasonable measure of confidence that free expression will not be met with imprisonment. Just last week hundreds more suspected Muslim Brotherhood members were thrown in jail.
Sisi does not support reconciliation with the Muslim Brotherhood (though the Brotherhood has expressed no interest in serious negotiation and will boycott the election), suggesting ongoing tensions in the immediate future. Sisi also supports the protest law which has been used continuously to arrest human rights advocates and regime opponents. The former field marshal also views the legitimate security threats to the state stemming from Sinai, Libya, and Syria as part of a war against terrorism. This ‘war on terror’ rhetoric of the interim government and Sisi alike may explain the apparent need felt for armored vehicles from the UAE in order to maintain order during this election.
The presidential election law has not itself created a fraudulent election. However, the legal infirmaries of the law, combined with an electoral context of fear and oppression, will insure that this week’s vote will not be free and fair: many regime opponents are in jail or banned from the political process, dissent has been criminalised by the protest law, and there exists no recourse for electoral decisions made by the PEC. Elections are necessary, but not sufficient for a democratic state: the people must be free to express their opinions and openly hear the opinions of their compatriots in order to make an informed electoral decision. That has not occurred over the past seven months and will not occur this week, either. 

25 May 2014

Episodes of oppression: the banning of April 6

This was posted on Middle East Eye and can be found here.

Last month, the April 6 Youth Movement was banned in Egypt for allegedly engaging in espionage and defaming the Egyptian state. The informal protest group likely caught the ire of the interim government by actively opposing its actions.
While the group has not kept quiet since the ban, urging the EU to cancel their observation of Egypt’s upcoming presidential election and contemplating actively campaigning against Sisi, the short-term future of open dissent in Egypt is bleaker than ever.
April 6 leaders Ahmed Maher and Mohamed Adel were sentenced to three years in prison in December under last November’s Protest Law which requires, among other things, government approval for gatherings of more than 10 people in a public place. Of course, many countries and international agreements (Article 19(3) of the International Covenant on Civil and Political Rights, for example) recognise reasonable time, place, and manner restrictions on free expression.
However, Egypt’s protest law should be, and could be, much more narrowly tailored as to not prohibit peaceful and legitimate political expression - vital for an open and democratic society.
However, the banning of April 6 did not result from the Protest Law. It was instead a result of a lawsuit which alleged the group was guilty of espionage and defaming the Egyptian state. The first charge is a result of an accusation that April 6 received funding from foreign sources. Accusing the movement of receiving foreign funds is not new, and has been refuted in the past.
The second charge is merely a modern equivalent of violating what are called laesa maiestas laws, which unquestionably attempt to limit legitimate political dissent by shielding the state from criticism. Such criticism is necessary for citizens to be able to make decisions on their approval or disapproval of state actions. As such, this is a clear violation of the ICCPR’s Article 19 and the Egyptian constitution’s Article 65 on free expression.
Moreover, April 6’s lawyers claimed they were not notified of the judicial hearing in question, a clear violation of Egypt’s own due process standards, including the constitution’s Article 96 guaranteeing the right of legal self defense. Thus, this ruling is both procedurally and substantively problematic.
The ruling should have been no surprise, however. The banning of April 6 marks only the latest step in the interim government’s oppression of all forms of dissent.
The past 10 months have seen the following episodes of oppression: the violent clearing of the Raba’a and Nahda sit-ins, the imposition of a curfew and a state of emergency, the aforementioned Protest Law and related prosecutions, the raid of Egyptian Centre for Social and Economic Rights, the declaration of the Muslim Brotherhood as a terrorist organization,the Al Jazeera trialthe mass death sentences of suspected Muslim Brotherhood members,the Terrorism Law, and now the banning of April 6. Many commentators have separated these actions into a ‘War on Islamists’.
However, if these twin wars were actually being waged by the interim government, the Tamarod protest movement and the Salafist Nour Party would be been banned and subject to similar state oppression as April 6 and the Muslim Brotherhood, respectively. Instead, both groups have chosen to be at the right hand of the government instead of in its path. As such, it is clear that these actions are part of a singular effort to silence all forms of dissent against the state. There is no ideological focus or reason; the most relevant division in Egypt is between supporters of the autocratic regime and its opponents.
A more nuanced analysis of the progression of the marginalization actions taken by the interim government shows an important trend. The actions begin as mostly executive (the clearing of the sit ins, the state of emergency), transition to legislative (the protest law, the terrorism law), and have now entered a judicial stage (the mass death sentences, the Al Jazeera trials).
While the lack of existence of a legislative branch makes the first transition less institutional than the second, each step is indicative of a further legalization of the authoritarian actions of the regime.
This step-wise process shows that the present interim government is methodically seeking long-term legitimacy by utilizing instrumentalities of each constitutional branch of government to meet its ends at silencing dissent. While this does not make the banning of April 6 a necessarily predicable move, it offers contextualization within a framework which explains the otherwise capricious actions of the interim government.
This legal entrenchment of the authoritarian suppression of dissent will create more generational problems for Egyptian democracy, as now even more laws and legal institutions must be repealed and reformed to allow for institutional democracy to consolidate. In the short term, the upcoming presidential and legislative elections will test first whether the interim government will allow free and fair elections.
They will also show how willing Egyptians are to again risk life and limb to oppose an authoritarian government. The banning of April 6 has shown little reason to hope the interim government has any intention to allow for open and free political debate and little hope that the Egyptian people will be left with political space in which to peacefully dissent.