From Manshiya to Alexandria: Re-Examning the Process of Constitutionlizing and Normalizing the Emergency Status in Egypt

Abstract

Recent political and legal developments within the Arab region have resurrected previously dormant historical debates and endowed them with a new life and vitality. The theory of exceptionality has been prominent within these debates, being repeatedly reasserted in different constitutional drafts, and even celebrated, as a means through which political authority maintain and secure ‘the public order’. Over the course of the 20th century, the debates about the state of emergency being a ‘profoundly elusive and ambivalent concept’ have been analyzed in as an act of political governance. Egypt long lasting rule relying on an emergency context has provided a worthy manifestation of how emergency rule have been installed in political and legal settings; and become presented as an only way to govern; in which it had been incorporated in different constitutions and manifested into a political exercise. We dedicate this article to witness these overlapping challenges to analyze why post-revolutionary regimes have failed to deliver a meaningful transformative constitutionalism that is based upon the principle of the rule of Law and continued to rely on the emergency status as module of governance. In this matter, we try to feature that this failure is related to three arguments; the first is that the exceptional ruling has been institutionalized in most of the political and legal settings since Nasserism; in which the revolution wasn’t able to change, nor did new constitutions introduce substantive changes to these dynamics. Second, that postrevolution regime used the exceptional status as way to legitimize their ruling through the political rhetoric of securitization, and thirdly the state of exception became normalized in the everyday political and legal settings. To illustrate this, we engage first in the colonial roots of the emergency rule dated back to the British era and Nasserism. Historically, Egypt has been thriving upon the emergency status dating back to the post-colonial era. The Law no. 16 of 1958 was introduced in the Gamal Abdel-Nasser era as way to constitute and construct a military rule that envisages the colonial exceptionality rule. This Law has been considered a prominent document to base and construct continuous regimes and affirm them with exceptional power to control both the public and private sphere of citizens. We dedicated section II to illustrate the continuous institutionalization process of the emergency status in the legal and political realm in Egypt in the era of Sadat and Mubarak. The reason is an attempt to feature a certain pattern that have been repeatedly re-asserted in different rulings and eventually shared similar characteristics; a continuous declaration of the emergency status without reasonable nor real grounds; establishing a parallel judicial military system, a production of legislative acts that maintain the settings of the emergency status, a reliance on a political rhetoric that fears either Islamists or Israel, and a continuous repression of other political actors. The last section, we track the practices that occurred after the revolution. We argue that post-revolutionary changing regimes engaged in a process to ‘re-constitutionalize’ and normalize the exceptionality rule either through constitutional and legal texts, or through political practices, leading in this manner to oppress the demands of the revolutionists.