The Colour of Protest

“In the name of nine million unemployed, your rule Mubarak is void!” With this and other biting slogans, the pro-democracy, anti-Mubarak movements greeted the freshly sworn-in president on September 27. Amazing how far we’ve come from just six years ago, when Mubarak’s regime was more coherent, more secure, more confident. Today, crises are a piaster a dozen, Mubarak’s regime is in the throes of a botched facelift, the economy is precarious at best, and Egypt no longer commands the regional heft its rulers have long parlayed into considerable influence. A decrepit regime faces off with a society in movement. Egyptian society is debating, organising, learning, mobilising, demanding, manoeuvring, grumbling, watching, transforming, and of course, sulking. The creativity of newly politicised young people is astonishing, like this brilliant Mostafa Hussein creation that takes a leaf from old Egyptian film posters.

Egyptian popular forces have always been gifted at theatre. Deft symbolism, nimble humour, and an excellent sense of timing have always been their metier. All the more so when they’re contending with a regime quite unparalleled in its abominable image-making skills. On September 27, up in parliament, Mubarak’s handlers apparently thought fit to invite a fellow president-for-life to witness Mubarak’s “swearing in.” As Libya’s fantastic Mu’ammar al-Qaddhafi looked on and Suzanne gazed down lovingly from the gallery, Mr. Hosni Mubarak uttered the presidential oath to “sincerely protect the republic, respect the constitution and law, fully care for the people’s interests, and guard the homeland’s independence.” Down on the street a little later, flanked by Kamal Khalil, the outrage of ordinary Egyptians, and the literal drumbeats of protest, Kamal Abu Eita led a counter-oath, vowing to “continue the struggle for freedom and bread.”

The demonstration was chock-full of made-by-young-people paraphernalia, from the yellow Kifaya balloons and stickers to Mostafa Hussein’s creations to the novel drums brought by Amr. One demonstrator was decked out in a brilliantly simple costume of a paper crown and gown. The crown said, “Egypt’s Czar” and the gown enumerated the Egyptian president’s stupendous prerogatives. Street constitutionalism is back!

"We Want all of Egypt to Know the Facts"

The work of Youth for Change in particular deserves special mention, for its stunning admixture of political insight and artistic creativity. I’m completely in awe of the bravery and commitment of these young people, working on even less than a shoestring budget. Take the short film “Mubarak New Look 2,” where two young men take turns methodically puncturing prevailing political myths and Mubarak’s campaign promises. One young man is animated and impassioned, the other precise and professorial. Both are beyond eloquent, expressing in mellifluous ordinary language the duty, as they see it, of expressing reasoned opposition to the Mubarak regime.

There’s more here than mere hortatory speech. In the middle of the 28-minute film, we’re transported to a nameless “informal area,” which is in fact Kilometre 4 ½ on the Cairo-Suez highway. With the mournful tunes of a ney in the background, one resident after another recounts his/her horror stories with obtaining potable water. After 25 years of living there, residents still have no running water, and must pay £E1 per jerry can of water if they can find it. A 60 year old widow who lives alone paid £E300 for water to be delivered to her by someone who turned out to be a scam artist. She now depends on the kindness of neighbours for her drinking water.

A poor woman says, “I want to able to educate my kids like the president educates his kids.”

At the end of the film, one of the two young men says, “I won’t ask you to go to a demonstration or shout slogans. All I ask is that within your family, among your friends, say: I am opposed to this, the country has to be cleaned up. And when you take a stand, the person next to you will also take a stand, and so will your neighbour, and so will the guy sitting downstairs at the ahwa, and so will the man who lives down the street. The bounty of Egypt is for Egyptians, the bounty of Egypt is for Egyptians, not for its rulers, not for its masters, the bounty of Egypt is for Egyptians.”

As Ali al-Haggar’s soulful voice soars in the background, the other young man sagaciously points out, “We deserve better than our current condition. Regardless of who rules the country, the question is how he will rule.”

"Every Slap on Our Face Makes Us Stronger"

Other productions share the spirit of “Mubarak New Look 2” but add humour and satire. Blackk Maskk’s “Gamal, Baba, and the 40 Thieves” is a short, entertaining send-up of the Mubaraks’ posse-state, to the tunes of Dalida’s lovely “Salma ya Salama.”

Mahmoud Tawfiq’s audio collage “Batel w’Noss!” has an oddly powerful effect. A mélange of voices from street demonstrations, cabaret belly-dancing music reminiscent of 1970s B-films, and Tawfiq’s own wry commentary, the audio medium conveys the intensity of people’s convictions. Tawfiq understandably can’t resist digitally altering the voice of PEC Chairman Mamdouh Mare’i as he announces the results of the September 7 elections. My favourite is his parting salute, “Thank you to those who decided not to give up their rights.” As a demonstrator tells him, “This is a weak regime, every slap on our face makes us stronger.”

For a long time now, the Internet has offered a forum for all manner of anti-Mubarak insignia, of varying levels of quality and cleverness. The Socialist Studies Centre’s publications have always been among the most daring. The American-based Egyptians without Borders maintain a collection of rather predictable emblems and photos. Prolific cartoonist Tantawy often has his moments; this spoof (right) on the wildly popular film of a few years ago Mafia makes me giggle every time I see it. Posse-state, indeed.

The Politics of Linkage

The above is only a sampling of the creative energies of Egyptians, overflowing after years of pent-up demands and execrable claims about their supposed “apathy” blah blah blah. Instead, before our very eyes, old actors are reinvented and new ones christened, old modalities are refurbished and new ones innovated. Seasoned dissidents stand shoulder to shoulder and argue with newly inducted political activists. The spirit of the 1970s is resurrected. Ahmad Fu’ad Nigm is everywhere. The palimpsest has a new layer.

In my opinion, the most remarkable process in all this is the blurring of the lines between supposedly “elite” issues such as trimming presidential prerogatives and “popular” concerns about bread, prices, education, health, etcetera. Whether in protest slogans or street theatre or the proliferating samizdat, weighty political issues are twined with everyday concerns. Presidential powers are a street-level issue. Bread and freedom. Politics is life, life is politics. Don’t take it from me. Go watch “Mubarak New Look 2” and listen to these courageous, clear-thinking young people who’ve turned political profundities into the stuff of everyday life.

And happy birthday, Kifaya. ‘Uqbal meet sana.

Edward Wadie Said (Nov. 1, 1935-Sep. 25, 2003)

“Sleeplessness for me is a cherished state to be desired at almost any cost; there is nothing for me as invigorating as immediately shedding the shadowy half-consciousness of a night’s loss, than the early morning, reacquainting myself with or resuming what I might have lost completely a few hours earlier. I occasionally experience myself as a cluster of flowing currents. I prefer this to the idea of a solid self, the identity to which so many attach so much significance. These currents, like the themes of one’s life, flow along during the waking hours, and at their best, they require no reconciling, no harmonizing. They are “off” and may be out of place, but at least they are always in motion, in time, in place, in the form of all kinds of strange combinations moving about, not necessarily forward, sometimes against each other, contrapuntally yet without one central theme.”

Out of Place: A Memoir (1999).

Of Ruses and Resistance

Now that Hosni Mubarak is safely installed as “the first elected president of Egypt,” we all have a right to wonder about the next steps. It’s no secret the man is ailing, weak, and no longer fully in control. And it’s old news that his son Gamal is a major powerbroker and may even be the de facto president, if word on the street and in political salons alike is to be believed. The Gamal Mubarak Project will surely rage on, perhaps with even more fervour in the coming months. But just as surely, it will continue to spawn ever bolder and more intrepid societal resistance. So it’s a wonder to me how the ruling family continues to blithely pursue this most execrable of ideas. Are they so cloistered from reality, so astonishingly oblivious? Or are they so intoxicated by their illegitimate power that anything seems possible? Perhaps, true to form, they’re just exceptionally brazen.


Whatever the cause, the project is already a failure. Not only has it not succeeded in normalising the outrageous and assimilating the indigestible. It has vastly augmented the public’s antipathy to the Mubaraks, though no doubt there are those who benefit from and thus look with favour upon a father-son presidency. It has subjected the president to heavy doses of societal scorn and derision, besting even the illustrious Sadat in a job at which he excelled. And it has crystallised powerful calls for trimming the president’s powers, limiting his terms to no more than two, and electing him by direct popular vote. If there’s one thing all of Egypt’s political class agree on today, it’s that the presidency must be disciplined and cut down to size. So, once again, it’s all about grandiose plans undone and base schemes uncovered. Call it the triumph of plebeian sense over patrician designs.

Plotting and Scheming

The Gamal Mubarak project has of course been with us since at least 2000, that is, since the ruling party’s resounding failure at the parliamentary polls. The much-hyped ostensible party housecleaning was the perfect political cover for Gamal’s mercurial rise. To add colour, Gamal and his people spun a neat little story about an entrenched “old guard” resisting an intrepid, reformist “new guard.” Credulous foreign audiences lapped it up, thanks in part to the loyal services of Nabil Fahmy, Egypt’s ambassador to the U.S. and an exquisitely serviceable little toady. In reality, there is no ideological, Soviet-style struggle between two camps. “Old guard” stalwarts no longer useful to the regime have been shunted aside without so much as a whimper. Think of Yusuf Wali and his retinue, long thought to be an untouchable kingmaker. The old guard-new guard story fails to mask the obvious: a mere changing of the guard substituting crusty old bosses in ill-fitting suits with relatively young faces in more correct raiment…and marginally better English pronunciation.

Now that parliamentary elections are upon us again, it’s no surprise that the Gamal Mubarak spectre raises its minatory head, with even more gall. It’s never receded far from view: recall this infamous Tahrir Square billboard (right) back on September 10, 2004, showing Gamal bey with Egypt's Olympic Gold Medal winner in wrestling (the billboard was swiftly taken down right after). But today the regime has to tread extra-carefully, since the make-up of the next parliament is directly entangled with the selection of presidential candidates. As per the amendment of Article 76, any presidential contender from now on will have to come from a legal political party commanding 5% of parliamentary seats. What’s more, the party has to have been in existence for at least five years. Right, currently only the NDP fits the bill, and that is the point. But, if Gamal were to run in say one or two years when his father reaches 80 and becomes completely incapacitated, it would be most propitious if not mandatory to have a few “competitors” from recognised opposition parties to run “against” him and put on a good show.

So the ruling regime is now weighing the option of a mixed electoral law, combining individual candidacies with party slates, hoping that the latter will give opposition parties a boost to meet the 5% threshold. As for Gamal, there are several guises under which he could run. To learn these, we have to await the ruling party’s Congress later this month, to which it makes sure to invite foreign dignitaries and foreign media and to feed them some fine-sounding ideas. There we will see whether Gamal bey will be promoted, how, and to which position. Note that the Gamal Mubarak project does not hinge on the dauphin necessarily becoming president. The only requirement is that he remain at the commanding heights; under what cover is the question.

But let me not get lost in the details and neglect the obvious. The Gamal Mubarak project has never been anything more than a lustful bid to protect ill-gotten gains. The Mubarak family wants to ensure a successor loyal to it, one who will safeguard its secrets, nourish its primacy, and extend its ruinous control over the country. All that drivel about “New Thought” blah blah blah is just noise. And all those academic sycophants pretending that they believe in a new “reformist” project are so many rank prevaricators. I have no interest in entertaining their sputtering excuses and mealy-mouthed disquisitions. It goes against every precept of logic, to say nothing of veracity and decency, to sit around debating whether Gamal bey’s ideas are good or bad, or earnestly affirming that he really “cares” about “reform,” as his posse likes to circulate. Toz. How he parachuted down on our heads in the first place is the fundamental issue.

Praxis

Exactly one year to the day after the above picture was taken, demonstrators took to the streets decrying Hosni Mubarak’s fake democratic legitimacy. On September 10, 2005, a motley crew made up of the Popular Campaign for Change (Freedom Now), Kifaya, Ayman Nour, Saad Eddin Ibrahim, Ahmad Fu’ad Nigm, Muhammad Abdel Quddous, Youth for Change, et al marched in downtown streets railing against the presidential selection show. The ever-noble Kamal Khalil (with megaphone) revved up the crowds, flanked by some wonderful Hamla signs: “A law for the independence of the judiciary is the demand of all patriots!”, “Emergency law is the foundation of a corrupt regime!” And the extremely pithy, “The election is invalid, and the battle continues.” This is what Gamal Mubarak and his bunch must contend with. What are their responses, I wonder?

Resistance against tawrith (inheritance of power) fed and bled into resistance against tamdid (extending Mubarak’s tenure). An intense, bespectacled man deserves much of the credit for this linkage; on one occasion he nearly paid for it with his life. I confess that before 2002, I didn’t think much of Abdel Halim Qandil, classifying him as a rather defensive and shrill Nasserist. But exigent circumstances spawn unexpected metamorphoses. Between 2002 and 2005, Abdel Halim Qandil came into his own as Egypt’s most articulate, most clear-headed, and certainly most effective critic of the Gamal scheme. I don’t remember precisely when his Sunday columns became much-anticipated events, when friends asked, “Did you read Qandil today?!” and marvelled, “This man is committing suicide!” I do remember erupting in little temper tantrums when al-Araby was sold out by noon on Sunday. I can’t imagine what the week would be like now without Qandil’s electrifying intervention. By what strange turn of events does a slight, lapsed physician with a gifted, intrepid pen morph into one of the most formidable threats to la famiglia Mubarak?

Qandil’s brand-new book Against the President is one of the most important projects taken on by Merit , thanks to the discerning and committed publisher Muhammad Hashim. The book is a no-frills compilation of Qandil’s columns (no Table of Contents, for God’s sake!), from May 2000 to July 2005. He prefaces it with a characteristically concise, uncowed challenge, “This is my crime!” Here he puts to paper what he’d previously circulated only among friends: the constant pressures from regime emissaries on Diaa Eddin Dawoud, Nasserist party head, to tone down the newspaper’s line or have it closed. The sudden cancelling of Qandil’s daily column in the Qatari al-Raya, a perch he’d uneventfully occupied for nine years. Discomfort in high places from a certain appearance by Qandil on al-Jazeera. And the desperate coup de grace: the November 2004 kidnapping of the man by burly, suited thugs who left him naked on a deserted stretch of the Cairo-Suez highway, but not before pummelling and warning him to stop talking about “the big people.” What was that again about Mubarak “allowing” bold criticism in the press??

Reading Qandil’s columns in chronological order opens an extremely instructive window onto to the development of some pivotal ideas. And sets the record straight. Anyone who seriously claims that Mubarak called for amending Article 76 only in response to American pressure needs to reconcile that with some inconvenient facts. On May 4, 2003, at the height of anti-regime ferment on the streets in the wake of the American invasion of Iraq, Qandil wrote, “We want an elected president.” In his usual taut, crisp prose, he concluded, “We want an elected president for Egypt. The reason: Egypt is in danger, and change—now and not tomorrow—is the greatest wall of defence.” On July 6, 2003, he began his column, “Let’s be clear: al-Araby’s campaign against the passing of the presidency to Gamal Mubarak will not stop until an official, decisive refutation is announced.” When Hosni Mubarak proffered that refutation on New Year’s Day, 2004, Qandil shifted to the next pressing topic: “President Mubarak is capable of making history if he decides not to nominate himself to a fifth term,” (January 18, 2004). And so on in relentless fashion, along the way reviving a venerable Egyptian journalistic tradition of reasoned opposition to the powers that be, ever since the days of Ahmad Hilmi. Finally, not to be missed is Qandil's dedication to his mother, an extremely moving, even haunting piece that juxtaposes the reticent decency that she and and other ordinary citizens represent against the obscene schemes and abusive ploys of the powers that be.

Years from now, when we think back and remember the travesty that is the Gamal Mubarak project, we’ll surely and rightly count it among the biggest scams ever pulled on the Egyptian public. But we shouldn’t forget what it helped midwife: A feisty popular campaign against tawrith, some choice jokes at the expense of an underwhelming, ignorant, and exceptionally uninteresting little parvenu, and a remarkable consensus that hyper-presidentialism is a profound danger that must be rigorously checked and leashed, beginning with direct popular election. With their limitless faith in public relations and spin, what the Gamal people would like us to do is change the topic, focus on peripherals instead of fundamentals, get lost in the details and bicker over inanities. What history will record is their well-deserved comeuppance, at the hands of a sagacious and vigilant public standing up for some basic values: decency, truth, and the republic.

*Photos from AP and AFP. Book published by Dar Merit (2005).

Pessimism of the Intellect, Optimism of the Will

So now we know the predictable results: out of 32 million registered voters, a paltry 23% turned out, itself a considerably inflated figure. Hosni Mubarak received 88.571% of the vote, Ayman Nour 7.3%, and No’man Gom’a a pathetic 2.8%. The only surprise is that Nour came in second place with quite a respectable showing.

The fascinating thing about the presidential selection spectacle is certainly not that it constitutes a “huge step” on some hypothetical road to democracy, or that it “opens the door” to democracy, or that it’s a “historic turning point,” or any of the other unbelievably pat metaphors mechanically repeated ad nauseam these days. To me, the really noteworthy fact is how an evident farce was turned into a real process by those who refused to be sidelined and deceived. Consider: On February 26, Mubarak made his “historic announcement” to permit direct presidential elections, which he surely thought was a brilliant manoeuvre to extend his tenure in democratic garb. Six months later, there’s utterly unprecedented societal mobilisation against rigged elections, judges and courts have joined the battle on the side of citizens, the regime’s cronies and their fake institutions are severely discredited and embattled, and on election day activists marched through downtown streets filling the air with cries of “Batil! Batil!” (Void! Void!). Seems like even the best-laid plans are bound to unravel. Pity.

It all reminds me of Antonio Gramsci’s lovely, paradoxical phrase: pessimism of the intellect, optimism of the will. The Italian communist activist and thinker believed that one could be simultaneously gloomy about the prospects of change yet retain the vision and stamina to actually effect such change. Gramsci’s aphorism is a paradox, one that perfectly captures the ethos of Egypt’s democracy activists. Realising full well the vast power disparities between them and the Egyptian regime, and the real likelihood that they’ll never see meaningful change in their own lifetimes, activists still insist on turning regime stratagems into dead-serious affairs. Optimism of the will beckons the muse of history, Clio. And Clio loves to usher in unintended consequences. This isn’t unprecedented in Egyptian chronicles. As hoary history-lover Muhammad ‘Awda told al-Jazeera, “This is not a unique moment, but a new moment within a continuous frame.”

The Best Laid Plans...

A week before the election on September 7, everything was going swimmingly for the Mubarak regime. All the requisite ingredients were in place. A very correct Presidential Elections Commission (PEC) headed by the Supreme Constitutional Court chief was conjured up to lend an air of gravitas. The president’s handlers arranged for the best makeover money can buy, featuring a new and improved Mubarak with a studied populist touch, though no one missed the visible fatigue of the star “candidate.” Suzanne Mubarak was trotted out to recall her girlish crush on her future husband, sharing with the nation her feelings of immediate attraction to the handsome young man in uniform (shudder). No’man Gom’a was prevailed upon to lend his services, with promises of handsome rewards. And clueless American senators blessed the whole process as historic bla bla bla, and bla.

Foreign-trained Egyptian image-makers were flown in to choreograph the president’s make-believe campaign. It was deemed fitting to surround Mubarak with model citizens outfitted in model garb. There was the token muhaggaba, the token peasant in gallabiyya, the token clean-cut professional in sharp suit, a veritable panorama of the nation’s sartorial diversity. All were instructed to paint solicitous expressions on their faces and muster those plastic smiles. Mubarak was also positioned in down-home settings flanked by idyllic vistas, bantering with ordinary Egyptians and partaking of their afternoon tea. No surprise that we all saw this for what it was: a fake exercise dripping with the Mubaraks’ notorious contempt and disregard for hardworking, ordinary Egyptians.

Aside from the inconvenient little fact that nobody bought it, the Mubaraks’ plan seemed impeccable: the president would “win” by a respectable margin, go through the pomp of swearing the oath before parliament, and then deliver an address calling on the nation to come together in magical consensus to confront the challenges ahead and continue Egypt’s march to democracy. Voilà! Mubarak’s ugly autocracy would be outfitted in the beautiful new robes of democracy, carping domestic critics would fall silent, restive foreign patrons would be satisfied, and the Gamal Mubarak project would be handled by stealthier means. What could possibly go wrong?

Crimps

Some Egyptians taking it all seriously, that’s what. As with so many moments in Egyptian history, a silly farce suddenly turned serious, completely overturning all expectations and radically altering the calculations and strategies of all relevant parties. I refer to seemingly quixotic gestures such as suing the PEC suddenly leading to momentous consequences; relentless judges refusing to abdicate their hard won power of certifying the people’s representatives; ordinary citizens taking it upon themselves to act as election monitors; election extras such as Ayman Nour shrewdly capitalising on regional grievances to extend his name recognition outside of Cairo, particularly in Port Said and Sinai; and demonstrators roaming downtown streets on election day, vilifying Mubarak. Much as they trip over themselves to appropriate societal energies, I have a hard time believing Mubarak’s people foresaw any of this.

One of the most fascinating lessons to be distilled from the whole elections exercise is the contest between real and fake judicial structures in Egypt. This subterranean struggle has been ongoing for two decades, of concern only to judges and lawyers anxious to uphold professional standards and self-governance. Completely unbeknownst to Mubarak and his henchmen, the elections have exponentially increased the audience interested in this previously obscure affair, exposing the regime’s tactics of infiltration, co-optation, and corruption of the judicial community.

Nowhere is this more evident than in the delicious comeuppance of the Presidential Elections Commission (PEC). The PEC is of course the regime’s signature showpiece in the election ruse, set up by Presidential Elections Law 174/2005. Designed to mimic the cachet of the venerable Election Commission of India but with none of the content, the PEC was soon exposed for the fraud that it is. Everyone castigated its “mythical” and “dictatorial” powers and took to task its bumbling chairman, Supreme Constitutional Court chief Mamdouh Mare’i, who’s always been held in maximum contempt by the very legal community to which he nominally belongs. Law 174/2005 is blatantly unconstitutional, exempting the PEC’s actions from any appeal before any body, violating Article 68 of the constitution and absurdly setting the PEC’s writs above even the president’s, whose decrees aren’t immune from judicial oversight.

In an evidently fanciful move, human rights groups decided to challenge the PEC’s immunity. They contested its decision to exclude them from monitoring polling stations before the first-instance Court of the Administrative Judiciary (Mahkamat al-Qada’ al-Idari). On September 3, the court handed down a package of election-related rulings whose significance shouldn’t be forgotten as we enter the parliamentary elections hoopla. First, the court ruled that the PEC has no jurisdiction over the issue of NGO monitoring, and that civil society groups should certainly be allowed to enter polling stations and observe voting procedures. Second, the court contradicted the PEC’s judgment and surmised that presidential candidate Wahid al-Uxori (head of one of the cardboard opposition parties) cannot enter the race due to the disputed status of his party leadership.

Third, the court referred the suit by Kifaya to the State Commissioner’s Authority (SCA), an important court advisory body that prepares legal opinions which are then often adopted by the court. Recall that Kifaya contested the Interior Minister’s decree announcing the results of the May 25 referendum on the amendment of Article 76 of the constitution, buttressed by the Judges’ Club report indicating that average turnout did not exceed 3-5%. The referral to the SCA means that the court sees merit in Kifaya’s suit and doesn’t deem it frivolous. Fourth and in many ways most remarkably, the court agreed to refer specific articles of Law 174/2005 to the SCC, arguing that the fact the law was vetted by the SCC before passage by parliament (already an irregular and unprecedented occurrence) does not rule out further judicial review.

The rulings are not only significant for bolstering activists’ demands. Taken together, they completely shatter the PEC’s immunity, question its judgment, and by referring Law 174 to the SCC again, implicitly challenge Mamdouh Mare’i’s competence as both SCC chief and PEC chairman!

Quagmire

Mare’i’s response to the verdicts was outrageous, sending ripples of shock through Egypt’s political class. He said the PEC would not abide by the court’s rulings. The prospect of an SCC chief flagrantly ignoring a court ruling was remarkable indeed. As all first-year law students know, failing to implement a court ruling is a crime punishable by imprisonment, as per Article 123 of the Penal Code. Prime Minister Ahmed Nazif convinced no one when he dutifully chimed in, “The election commission is headed by the head of the supreme court in Egypt, which is much higher ranking than the administrative court.”

Experts pored over the legal morass, pitting a pillar of Egypt’s judicial structure (administrative courts) against a newfangled institution of dubious constitutionality (the PEC) headed by a presumptive legal maven who in reality is a loyal regime apparatchik. The regime moved to quickly contain the looming crisis. Under pressure from his bosses, Mare’i quickly retracted his disastrous statement and dispatched government lawyers to appeal the court’s rulings, thus effectively admitting the PEC’s status as nothing but an administrative organ. On September 6, the Supreme Administrative Court (SAC) issued a ruling that was widely interpreted as a hasty political compromise intended to salvage the elections scheme from grave constitutional crisis.

The ruling was a perfect instance of doublespeak, a delicate dance around the luculent unconstitutionality of the PEC. On one hand it upheld the PEC’s immunity from judicial review. On the other, it urged reconsideration of the provisions of Article 76 exempting the PEC from judicial oversight! The SAC’s deliberations stretched into the evening and were led by the head of Magles al-Dawla, Justice Abdel Rahman Azouz. Moreover, the ruling went against the report of the State Commissioner’s Authority, a rare occurrence. It’s certainly not the first time the government prevailed upon the SAC to override a perturbing ruling of a lower court; the administrative court’s history is replete with additional examples. Suffice it to note that the SAC was established in 1955 for precisely this function, to contain and control the spate of rulings against the government by independent-minded courts of first instance.

A Tale of Two Judges

I’ve already discussed who Mare’i is and his underwhelming judicial credentials. His mettle as a judge has been irrevocably dented over the past month, and one can only wonder what that will mean for the status and reputation of the Supreme Constitutional Court once Mare’i returns to it after this annus horribilis, especially since the SCC has already weathered significant infiltration after its July 2000 ruling on judicial supervision of elections.

At this juncture, I can’t resist honouring a judge cut from an altogether different cloth. Farouq Ali Abdel Qader is easily the most prominent and well-known judge in Magles al-Dawla today (seated moustachioed judge, above). He handed down the rulings of September 3, followed by another ruling just days later striking down the PEC’s decision to exclude hundreds of judges from supervising elections. Abdel Qader graduated first of his law school class in 1959 and has since crafted an upstanding, illustrious judicial career. Young judges speak of him reverently as “Farouq bey,” compiling and circulating his copious rulings on compact disc to pore over the important legal principles he sets down. You wouldn’t know it from his unassuming and genuinely modest bearing, but Abdel Qader has one of the most truly indispensable and difficult jobs in Egypt today.

As President of the Courts of the Administrative Judiciary (34 circuits), Abdel Qader literally sits at the interface between citizens and state. Administrative courts are the arenas where citizens contest any and all acts of the administration. As head of the crucial first circuit (da’irat al-afrad), Abdel Qader determines the fate of citizen petitions against the government. As he sees it, he is constantly mediating between citizen freedoms and state power. From that vantage, he’s handed down some remarkable rulings in defence of citizen rights.

Just a handful of examples: the ruling authorising marches and demonstrations to protest the American war on Iraq; the ruling allowing the newspaper al-Shaab to resume publication; the ruling that deemed unconstitutional the controversial tagging of garbage collection fees onto electricity bills, and the ruling ordering that Tareq al-Zomor be released from prison. al-Zomor has served his 22 year sentence in connection with his role in the Sadat assassination. Unlike most administrative court verdicts, this last was not reported in the state-owned press.

Whether these rulings were implemented or not is another matter entirely (the last certainly wasn’t), and whether one agrees or not with Abdel Qader’s verdicts is immaterial. The point is that for decades now, he has been a quiet, diligent, and upstanding defender of an inadequate but still decent constitution. I can scarcely imagine what it is like to be deluged with the thousands of petitions that he contends with, at a time when acts of the government grow more arbitrary and legislation more repressive and unjust. His sense of responsibility must be crushing, for every administrative court judge is keenly aware of how his verdicts shape future cases. So when Abdel Qader rules in favour of civil society groups monitoring elections, or in favour of reopening opposition newspapers, or in favour of peaceful demonstrations, he is aware that he is sending potent signals and setting subtle precedents that get at the core of the regime’s legitimacy and power.

I know I am not the only one who scoffed when I read al-Gomhuriyya editor-in-chief’s veiled attack against Abdel Qader on September 5. Or when I learned that Mamdouh Mare’i had decided to ignore Abdel Qader’s verdicts. There are judges and then there are judges. Maximum respect and admiration are owed to Abdel Qader and his colleagues.

Looking Ahead

As the regime sells Mubarak as “the first elected president,” let’s pay attention to the details of the voting process and its rampant abuses, amply documented here by the intricate network of citizen groups, with more sure to surface in the coming days. Let’s remember those righteous judges who refused to let the NDP’s voters enter polling stations en masse, earning an angry rebuke from Gamal Mubarak’s errand boy Mohamed Kamal. In a pre-emptive bid to blame the pathetic turnout on judges, Kamal complained on al-Jazeera of judges’ “rigidity” which turned voters away, he suggested. Gamal Mubarak pal Ahmed Ezz was reportedly also furious with stringent judges on election day, instructing NDP proxies to file police reports on those judges who refused to allow more than one person at a time into polling stations. And let’s await the post-mortems of judges themselves, which will determine their stance on the upcoming November parliamentary elections. The Judges Club will begin hearing sessions on Monday to collate judges' experiences supervising the poll and prepare its report.

The presidential elections ploy is over, Mubarak is still president, the regime’s stability is untouched. But I’m not concerned here with regime stability. I’ll leave that sordid topic to those who call themselves “risk analysts,” to foreign embassy types, and to those quaking at the very mention of the word change. A step to democracy hasn’t been taken, because democracy doesn’t proceed in neat little graduated steps that we can tick off and list. What strikes me is how government ploys have this pesky habit of going awry, thanks to the actions of citizens and judges with other ideas. For the pessimism of their intellect and the optimism of their will, I bow to them in awe and respect.

*Reuters photo, September 7, 2005. In Tahrir Square, a Kifaya demonstrator holds a sign saying, “No to the last pharaoh.”

*Courtroom photo from al-Ahram Weekly.

Be It Resolved

Judges convened their general assembly meeting yesterday, where deliberations lasted for about six hours as demonstrators gathered in solidarity outside the Press Syndicate next door. The majority of judges resolved to monitor the presidential poll next Wednesday, on the following terms: (1) judges will permit members of civil society watchdog groups to enter polling stations and observe the vote, (2) judges will hand over copies of voting figures to candidates’ proxies, and (3) those judges who have been distanced from monitoring by fiat (approximately 1,700) will form their own fact-finding commissions and monitor the vote anyway, roving between polling stations much like the citizen watchdog groups.

Far from a capitulation, the judges’ decision is an exquisite example of calibration and measured defiance. All three of their conditions are in explicit contravention of the Presidential Elections Commission (PEC) and its imperious chairman, chief of the Supreme Constitutional Court Mamdouh Mare’i. Because they have decided not to give up on the cause of clean elections by boycotting monitoring, judges have now put themselves on a clear collision course with the PEC. Independent judges have essentially resolved to take matters into their own hands, bypassing Mare’i’s obstructionism and thus thoroughly puncturing his already threadbare legitimacy. So now we’re faced with a delectable but by no means unprecedented irony. The battle for Egyptian judicial autonomy and clean elections hinges more than ever on intra-judicial dynamics. But we’ve always known this, mish kida? In Egypt, there are judges, and then there are judges.

Activism

Judges’ collective resolve this year is in no small measure due to the leadership of several remarkable men of the Egyptian bench who are risking a great deal for the causes of professional autonomy and continued public confidence in the judiciary. To name just a few: Alexandrians Hossam al-Ghiryani, Ahmed Mekki, [Alexandria Judges Club president] Mahmoud al-Khodeiri, and Ashraf al-Baroudi, all inspired by the example of honorary Judges Club president (and wry Alexandrian) Yahya al-Refai. In Cairo, the outspoken Hisham al-Bastawisi and Judges Club board member Ahmed Saber are noteworthy, as are Hisham Geneina, Muhammad Nagi Dirbala, and Tal’at Abdalla.

Judges Club President Zakariya Ahmed Abdel Aziz deserves special mention, for he was not suddenly catapulted into the limelight this year but has had a track record of independence and relative outspokenness. In June 2001, Abdel Aziz beat long time regime loyalist Moqbel Shaker to the presidency of the Judges Club by a narrow margin of 200 votes. Shaker is the quintessential pro-regime judge, first coming onto the scene back in March 1969 in the Judges Club election that Nasser’s legal henchmen tried but failed to rig. But Abdel Aziz’s first year as president was marked by ever-escalating tensions with Shaker’s men, who had secured the board. Early elections were called a year later in June 2002 to resolve the crisis, with turnout approaching 50%. This time, Abdel Aziz triumphed over Shaker by 732 votes, ending up with a like-minded board. His election slogan: “Change and Renewal” (al-Taghyeer wa-l-Tajdeed).

Sure enough, his leadership has meant an amplified political profile for the Judges Club and more insistent demands for a new judiciary law. In June 2003, the Judges Club general assembly refused to comply with NGO law 84/2002. It is an enduring irony of Egyptian politics that the Judges Club is governed by the NGO law, i.e. it answers to the Ministry of Social Affairs! Clearly, judges are having none of it. Then in March 2003, in an unusually bold move, the Judges Club issued a high-profile statement against the Iraq war. Then, on March 12, 2004, 3,000 judges convened for another extraordinary General Assembly to protest warnings issued by the Supreme Judicial Council against judges Hossam al-Ghiryani (see more on him here) and Ahmed Mekki, the two Alexandrian judges spearheading the campaign for clean elections this year.

Containment

Rumours are now circulating that Moqbel Shaker has resurfaced at the Judges Club and is starting to drum up support for unseating Abdel Aziz during the next elections. He will surely gain the support of those still undecided judges ill at ease with Abdel Aziz and his board’s activism this year, as well as the backing of staunchly and openly pro-regime judges. Take PEC chairman Mamdouh Mare’i. When Fathi Naguib died suddenly in August 2003 while serving as president of the Supreme Constitutional Court (SCC), the regime scrambled to find another pliable judge from outside the court’s own ranks to continue trimming the SCC’s claws, especially after its July 2000 ruling requiring total judicial supervision of elections. It brought in Mare’i, an obscure head of the Cairo Court of Appeals and certainly no luminary in judicial circles, neither as a practitioner nor as a constitutional jurist.

Mare’i returned the favour swiftly. In March 2004, he clamped a lid on a raging debate exactly as the regime wanted it to be sealed. The debate centred on who gets to be defined as a judge and what organs are included in the vague moniker “judicial organs” (hay’at qada’iyya). The overwhelming consensus within the legal community is that only “sitting judges” adjudicating cases are to be counted as judges. And judicial organs are only those institutions that issue verdicts, such as the Administrative, Supreme, and Cassation Courts (and their lower rungs). In March 2004, Hosni Mubarak requested a binding interpretation from the SCC (one of its tripartite functions), and Mare’i decided to fly in the face of all expert consensus and adopt the broad interpretation of “judicial organ” to include the State Cases Authority and the Administrative Prosecution, both legal servants of the executive branch.

The coveted outcome? At sensitive moments such as elections, the regime can now use a seemingly legitimate SCC certification and mobilise its legal staff to man polling stations, thereby claiming that elections took place under full judicial supervision. Shoehorning the executive’s legal staff into judicial structures also helps undermine the latter’s coherence and dilutes their intractable esprit de corps.

As head of the PEC, Mare’i has managed to alienate ever-increasing numbers of people. Saad Eddin Ibrahim castigated the Commission for its vast powers and lack of any mechanisms to appeal its decisions (al-Raya, August 29). And this week, the Egyptian Organisation for Human Rights issued a very valuable report carefully detailing the PEC’s unconstitutional powers and the serious gaffes of its objectionable chairman.

It doesn’t end there. Further stoking festering tensions with the judiciary, Mare’i has enraged judges by ignoring the Judges’ Club repeated proposals, entreaties, and appeals on the proper conduct of judicial supervision. Insult was added to injury when the list of judges Mare’i drew up to monitor the polls excluded the names of 1,700 judges active in the call for judicial autonomy and supervision (al-Ahali, August 31, 2005). Finally, in a clumsy and transparent move, Mare’i ordered that the 329 main polling stations be supervised by heads of primary courts (easily amenable to executive influence), while more senior judges are relegated to the 9,737 auxiliary polling stations. Presidential Elections Law 174/2005 of course grants a preponderance of power to the heads of the primary stations.

Warning

The judges are proving to be shrewd and clear-eyed negotiators, with a keen sense of timing and studied escalation of their demands. Yesterday, they vowed to hold a sit-in at the Judges Club in October if the Supreme Judicial Council maintains its intransigent silence on the proposed new bill for the judiciary. Then they went for the jugular. Zakariya Abdel Aziz warned Mare’i, “The judges’ and Egypt’s reputation as well as the country’s future are in your hands. If this election takes place the same way the referendum did, the highest office, that of the president, will be under threat.” Note well. This is not just an upstanding judge berating an inferior colleague, but a pregnant reminder to Mare’i’s bosses in the regime. The message: judges are fully aware of the strategic resource they now control, namely the power of certifying the process of presidential election. In refreshingly blunt terms, Abdel Aziz is reminding Mubarak that presidential legitimacy is now in judges’ hands, and they are more than capable of effecting a constitutional crisis. Behold the devilishly unintended consequences unleashed by fake regime reform.

Legacies, again

As we know, judges are drawing on a vivid collective memory of past struggles to animate their mobilisation this year. And they have their eyes firmly trained on the next battle: parliamentary elections in November. It seems clear that the boycotting trend has waned among judges, giving rise to perhaps a more effective strategy of participating on their own terms. I confess that I was very taken with the boycott option, but if upstanding Egyptian judges have decided to pursue another tack, the least we can do is wait, watch, and lend them our support.

More so than at any other moment in modern Egyptian history, the judges in 2005 have lent their esteemed imprint to the society-wide ferment for democracy and justice. It’s a remarkable symbiosis: judges use their hard won clout to push for truly free elections that represent the citizens’ will, and citizens’ groups reciprocate by expanding the popular support base for judicial independence. Each buttresses the other’s quest for self-governance and autonomy. Each sees the other’s struggle as inseparable from its own. I love the ubiquitous protest sign held aloft at nearly every demonstration this year (see photo above): “O judges, O judges, free us from the tyrants!” (Ya quda, Ya quda, khallasoona min al-tugha!).

This judicial-societal alliance is bound to have a profound effect on the future of Egyptian politics. Of course, the regime and its judicial minions will work diligently to restore the familiar ways of doing things. But rolling back such innovation will be a difficult task, especially if this year’s political energy spills over into next year, and the one after that (foisting Gamal Mubarak on us in a year or two is a foolproof recipe for continued agitation). As in 1968, judges this year have had an intoxicating taste of their own collective capabilities, plus a robust test of their moral support base in society. Does this raise the spectre of an imperial judiciary? Methinks that’s highly unlikely. More likely is a judicial-societal alliance struggling for rights, sparring with a defensive imperial presidency ever so gradually being trimmed down to size.

*AP Photo, September 2, 2005.