The Brothers, the Revolution, and the Right to Protest

A new political order always arrives with a package of legislation establishing its political and socioeconomic orientations as law. In its broad sense, a revolution effects a “fundamental change” in the political and economic order, with the support of the majority of the people.[1] Egypt experienced this shortly after the 1952 Free Officers’ coup d’état, as it developed into the July Revolution.[2] Egypt’s second experience in this regard came with President Anwar Al-Sadat’s accession to power, and continued under Hosni Mubarak, who preserved the political and socioeconomic orientations of his predecessor. The new regulations brought in by Sadat and Mubarak included the abolition of several privileges conferred to citizens of Arab countries,[3] legislation encouraging business,[4] and the abolition of privileges conferred to farmers in accordance with the laws of the so-called socialist era.[5] Following the handover of power from the ruling Supreme Council of the Armed Forces (SCAF) to the Muslim Brotherhood on 30 June 2012, the latter began to draw the contours of the new political order, translating its political and socioeconomic orientations into legal stipulations.

With the Muslim Brotherhood in control of the presidency, observers continue to pose a number of critical questions about the change, if any, that the Brotherhood will bring to Egypt, specifically: Is there a significant difference between the Mubarak and Morsi regimes’ legislation? With the Brotherhood in power, is Egypt witnessing a “revolution,” or merely a change of state elites that is accompanied by no change, or, at best, a slight change, in state practices and policies?

In attempt to provide some provisional answers to these questions, this article offers a critical analysis of the draft laws on the right to protest drawn up by the Ministry of Justice and presented to the parliament’s upper house (the Shura Council) in March 2013. While the policies of the Muslim Brotherhood are still evolving and it is still too early to reach a final verdict about their commitment to enacting transformative revolutionary change, understanding the philosophy behind legal stipulations, such as the right to protest bill, offers some tentative conclusions about the new ruling regime’s revolutionary orientations (or lack thereof).

A Brief History of Legislation on the Right to Protest in Egypt

At present, the legal provisions governing the right to protest in Egypt are implied in four principal items of legislation – Law No. 10 of 1914 on Assembly (amended in 1968), Law No. 14 of 1923 on Regulations Pertaining to Public Assemblies and Demonstrations in Public Roads (amended in 1928), Law No. 109 of 1971 on Police Authority, and the Labor Law No. 12 of 2003 (with provisions relevant to the right to strike).

A review of this legislation generates the straightforward conclusion that the three different regimes that ruled Egypt in the last one hundred years have held similar political orientations regarding freedom of expression. These regimes spanned the colonial era from 1882 to 1952, the July Revolution era from 1952 to 1970, and the era of Sadat, Mubarak, and the SCAF, from 1970 to 2012. That is to say, there was little difference between the way the occupiers dealt with the right to protest and freedom of assembly in Egypt, and the way the national regimes did, notwithstanding differences in other areas.

The Muslim Brotherhood from Protesting to “Regulating” Protests

Starting with the Muslim Brotherhood dominated parliament of January 2012, and until the 30 June 2012 power handover by the SCAF, the Brotherhood’s desire to “regulate” the right to protest and freedom of assembly was manifested in five attempts to introduce a law to this effect. The first was in March 2012. Sobhi Saleh, a prominent lawyer and a leader in the Muslim Brotherhood and its Freedom and Justice Party (FJP), had submitted a draft law on the “regulation of demonstrations,” but this was met with massive protest. Salafist MP Mamdouh Ismail criticized it strongly, Salafist MP Adel Afifi sarcastically said that “it only lacked Mubarak’s signature,” and Nasserist MP Mohammad Mounib said that it constituted “a return to the British occupation.” In the end, the Brotherhood majority decided to retract the draft and put off the matter. Saleh himself denied responsibility for it, claiming that he had only “collected the members’ proposals.”

The second time the matter was brought before the legislature was in late December 2012, weeks before the massive and violent protest movements on the second anniversary of 25 January 2011. On the one hand, unconfirmed reports that the Shura Council was discussing new legislation on demonstrations spread all over the media, but on the other hand, members of the Council remained silent and did not comment on these allegations. Ambiguity surrounding the matter continued until Egyptian Daily, Al-Masry Al-Youm, leaked and published the draft law. The draft was met with massive criticism from rights activists, jurists, and opposition members. This lasted for several days, eliciting no reaction from the Brotherhood, the Shura MPs, or the Minister of Justice, whilst rumors spread that the Ministry of Interior had written the draft. Days later, all parties involved denied responsibility for the draft and Essam El-Erian – the leader of the Brotherhood’s bloc in the Shura Council – announced that Shura MPS had not discussed the draft, upon which the matter vanished for the second time. Both draft laws unprecedentedly contained extremely restrictive provisions[6] that would only exist in authoritarian regimes and that violate several international standards and best state practices on regulating the right to protest, as discussed below.

The third, fourth, and fifth times that the regulation of the right to protest was a prominent issue in Egypt’s busy political arena occurred when the Ministry of Justice officially drafted a bill, which appeared three times in succession with very similar content. Unlike the previous drafts – which would appear, attract massive criticism, and then definitively disappear – the Ministry of Justice draft would appear (the first time was on 30 January 2013), attract criticism, and then reappear again with some amendments. It finally appeared and passed “in principle” on 26 March 2013, winning enough votes to become a bill on the Council’s agenda.

On the same day, different media outlets circulated the findings of Sheraa – the Independent Association for Legal Support – which had published its commentary on the latest bill on the right to protest. A brief list of Sheraa’s critiques, and a comparison between this bill and the provisions that exist and have existed for around a hundred years in Egypt, offer several indications as to the political orientation of Egypt’s new rulers toward the right to protest.

Sheraa’s report started with a general critical appraisal of the bill, stating that it was clearly influenced by contemporary British and French legislations on the matter. Besides the fact that these are states in which rights groups are concerned about the undue restriction of the right to protest, Sheraa’s main concern was that the bill adopted all the restrictions established in the aforementioned legislations, while ignoring the guarantees, rights, and liberties conferred upon protesters in return.

For instance, the 29 January draft (that is, the third attempt) provided that:

it is prohibited to organize a demonstration [the term “demonstration,” in the context of the bill, refers to all gatherings of five or more individuals] without prior notification to the police station or division of the district in which the demonstration is planned to take place; this shall be at least five days prior to the scheduled time thereof.

Around a month later, in the fourth and fifth attempts to pass the bill, the notification period was reduced to only three days prior to the time scheduled for the protest. In this regard, the draft adopted a harsh provision from British law, and ignored the fact that the notification prerequisite in Britain is only imposed on “marches” and not all gatherings. There is also the additional exception of cases in Britain when the march is an immediate response to an event that is not “reasonably predictable” according to section 11 of the Public Order Act 1986. No such exception exists in the Egyptian bill. 

Another example is the prohibition of demonstrations inside the so-called “designated area” in front of certain premises named in the bill. The number of these premises was significantly reduced in the latest two attempts to bring the bill to the Shura Council, and the size of the “designated area” went down from five hundred meters away from the named premises to two hundred meters. Moreover, this article was recently amended in Shura to include all “public premises.” 

In addition, the bill imitates European states’ laws, while completely disregarding the Egyptian context. For example, how could these restrictions be implemented in a country that witnesses such a large number of protests? Indeed, the Democracy Indicator mentions that Egypt currently has the highest rate of protest worldwide, having witnessed 1,354 protests in March and 1,462 in April 2013.

Furthermore, the bill permits riot police to use force against demonstrations “deviating from the conditions agreed between the police and the organizers,” even those which remain peaceful. How do the bill’s authors expect this stipulation to be executed without limiting the right to protest, given that organizers, where they exist, have almost no power over the gatherings due to their size and, most importantly, their spontaneity? How are the organizers to sit with police and determine the route of each march and the time of its termination, in such circumstances? Indeed, how can the organizers sit and talk with the police, given that the issue of security sector reform is still a pressing one on the path of the January 2011 uprising, and that the overwhelming majority of Egyptian activists believe that the Ministry of Interior has not changed at all?

Indeed the bill also overlooked the Egyptian context in terms of the use of force from the other side, namely the police itself. The bill considers the riot police forces of the European countries to resemble those of Egypt. It therefore allows them to use force, as the British law does. This, however, ignores the fact that the police did not kill any one during the 2011 riots in Britain, whereas Egypt’s police killed tens of Egyptians since the January 2013 protest waves. The bill also permits the use of firearms by referring to the Police Authority Law No. 109 of 1971, which in turn refers to the Decree of the Minister of Interior No. 156 of 1964 on Regulation of the Use of Firearms. Both regulations permit the police to use firearms, and even machine guns, on the sole condition that the use of force represents “the only means to prevent the exposure of “public security” to danger.”

In contrast to the bill’s influence by two of the most heavily criticized laws on the matter – the French and the British – Sheraa’s commentary referred to more credible and suitable sources of legislation on the right to protest. The report cited the United Nations Human Rights Council (UNHRC) Report of the Special Rapporteur on the Rights to Freedom of Assembly and of Association, the African Charter on Human and People’s Rights, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials adopted by the eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) Panel of Experts on the Freedom of Assembly (“Guidelines on Freedom of Peaceful Assembly”), the International Covenant on Civil and Political Rights, and International Labor Organization (ILO) Convention 87 on Freedom of Association and Protection of the Right to Organize. It also referred to practices of other states that recently underwent political transition, as well as best practices of other states still.[7]

 The Opposition’s Draft Bill

On 27 March 2013, the Egyptian Social Democratic Party presented an alternative draft and representatives from the opposition and other parties, including the Salafist Al-Nour Party endorsed it. Comparing it with the bill of the Ministry of Justice – that passed “in principle” a few days earlier – reveals a very important difference. The spirit of the Ministry of Justice bill is clearly restrictive of the right to protest, whilst that of the opposition asserts this right. The opposition’s draft aims to establish obligations on the police force to protect protesters and respect their rights, whilst the Ministry of Justice bill introduces new restrictions, re-criminalizing already criminalized acts by virtue of other provisions in the law. In effect, the Ministry’s bill imposes no new obligations on the police, and indeed confers new deterrent powers upon the Ministry of Interior.

The draft presented by the opposition proposes the establishment of a new unit within the Ministry of Interior to hold training courses for riot police forces on the non-violent dispersal of protest. The draft suggests that such riot police replace the Central Security Forces (CSF, quwat al-amn al-markazi), the special police force which has long been in charge of dispersing “illegal” gatherings. Riot police would be recruited based on higher education qualifications, ending the current practice in place by which the CSF only drafts so-called “category-4” or uneducated soldiers.[8] By contrast, the authors of the government’s bill are only interested in affording the police the right to object to and intervene in organizing protests, based on the sole condition that an agreement proved “impossible” to reach with the organizers during a meeting preceding the “demonstration.”

Finally, the opposition’s draft includes “strikes” in the definition of assemblies, and guarantees the right to strike in compliance with Egypt’s international obligations. By contrast, the government’s bill makes no mention of freedom of association and the right to strike. This leaves the matter to the restrictive Law No. 12 of 2003, which the Mubarak regime designed to circumvent Egypt’s obligations according to the ILO Convention 87,[9] and to SCAF’s Decree Law No. 34 of 2011, on the Criminalization of Obstructing the Freedom to Work and Sabotaging Public Facilities.[10]

Conclusion

In short, it is clear that the Muslim Brotherhood does not intend to introduce the type of changes that could expand the scope of the rights to protest, freedom of assembly, and freedom of association. The right to protest bill that emerged in March 2013, after a long struggle on the part of the opposition, and significant concessions by the Brotherhood, still does not improve on the narrow scope of civil liberties that previous regimes drew up.

On the other hand, a flurry of draft legislation announced recently makes it clear that the Brotherhood does have intentions to introduce some change to the system. This change seems to encompass an emphasis on the business sector’s efficacy and economic liberalization with restrictions on civil liberties. According to statements made by outgoing Minister of Justice, Ahmad Mekki, and spokesperson for the Ministry of Justice, Ahmad Roshdi Sallam, the Ministry is currently working on over sixty draft laws. These include some very significant administrative, social, economic, and business legislation – laws on mediation, tenders and auctions, conflicts of interest, freedom of information, and the personal status of Muslims and non-Muslims. Added to this are the Sukuk (Islamic Bonds) Law, which won the affirmative vote of the Shura Council on 19 March, the Non-governmental Organizations bill, drafted by the Ministry of Insurance and Social Affairs, the Minimum and Maximum Wage bill drafted by the FJP, and the Taxation bill, drafted by the Ministry of Finance.

Thus an economic renaissance based on liberalization is a clear item on the Brotherhood’s agenda – indeed nahda (renaissance) is the official name they have given to their socioeconomic program. Yet the accompanying restrictions placed on civil liberties seem to be counterproductive for the Brotherhood, as it will need the support of other political forces, as well as international actors, to be able to move forward with its nahda project. Meanwhile, and bearing in mind that these developments in the state’s economic orientation are the product of the ousted president’s son Gamal Mubarak’s planning, the Brotherhood urgently needs to reconsider its economic plans, considering that the popular rejection of neoliberal policies arguably constituted one of the main reasons for the January 2011 uprising.

Moreover, when I attended the March session on the right to protest bill—as a representative of Sheraa and at the invitation of the head of the Shura Council’s Human Rights Committee—I observed that the FJP itself did not reach a consensus on its restrictive provisions: several FJP MPs had significant reservations. The Muslim Brotherhood elite needs to take these voices – those of its younger generation – into consideration. It should also stop exploiting the existence of groups that are perceived to be more “radical,” that is the Salafist, to portray itself as the “moderate” choice—something that the Brotherhood’s record hardly supports. Indeed, the Salafist positions appear no less “radical” than those that the Brotherhood proposed. In the same session, a Salafist MP from Al-Nour Party demanded the “abolition” of the right to strike and claimed he valued Joseph Stalin’s strict approach with regard to such matters, while Salafist MP Adel Afifi of Al-Asala Party argued that “a protester may turn out to be a criminal in a moment” and therefore “the police must be armed with live ammunition to practice its right to self-defense.”

On a related note, the Brotherhood is apparently unaware of the need for a revolution in Egypt’s legal system in order to overcome its dependency on French jurisprudence, which appears unsuitable in many respects today. In another Shura Council session that I attended in late April, Assistant Minister of Interior for Legal Affairs Ali Abd al-Mawla was invited to defend the bill. Abd al-Mawla and MP Majid Al-Helw, a Public Law professor, referred to French regulations in every one of their interventions, while FJP MPs supported almost everything they said. This spectacle, with different actors fulfilling the same conventional roles, was a mere replay of parliamentary sessions before 2011.

A legal vision that is more critical, and eager to learn – rather than to copy – from “democratic” European countries’ legislation is undoubtedly needed for a fundamental change to occur in Egypt’s socio-political institutions. Instead of simply borrowing French provisions, the Brotherhood needs to give a revolutionary generation of jurists an opportunity for influence. Specifically, there is a need for a new generation of jurists that does not fear adopting perspectives critical of French democracy and socio-political institutions, and that takes seriously French activists’ allegations of oppression by authorities, as well as problems in the French legal system.

The Muslim Brotherhood today faces a critical choice between overhauling Egypt’s socio-political institutions in a way that lives up to revolutionary expectations, or simply following a status quo agenda that introduces at most limited changes to long-standing political practices and economic policies. The Brotherhood’s approach in handling the question of the right to protest suggests that the group is leaning toward the latter approach, and that it has not (yet) garnered what it takes to advance revolutionary change that truly breaks with the past.