Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Last week, I had the pleasure of interviewing two members from the Egyptian American Rule of Law Association (EARLA). With all the recent changes in Egypt, I was thrilled to speak to Sahar Aziz, Professor and President of EARLA and Sally Baraka, Attorney and Treasurer of EARLA about what the latest developments mean for the future of democracy and rule of law in Egypt.
As one of the co-founders to the Egyptian American Rule of Law Association (EARLA), why did you form EARLA?
Sahar Aziz: EARLA was co-founded by approximately 10 Egyptian Americans, who soon after the revolution [of Spring 2011], felt compelled to support Egypt transition to a democracy. Because we were all lawyers, we decided we would leverage our skills, which was the law, and we knew full well that rule of law or the lack thereof was a problem in Egypt and that was going to be a fundamental component of redefining the aspirations of the revolution. So we started EARLA around April of 2011. It’s been a little over 2 years now that we’ve been in operation.
What improvements in rule of law have you seen after the ouster of President Mubarak and after the election of President Morsi?
Sahar Aziz: Unfortunately there hasn’t been a lot of progress in general on rule of law issues, primarily because the focus has been on much bigger political disputes. Often times, partisanship got in the way.
In the old constitution, the president appoints the prosecutor general and that person has life tenure unless they voluntarily resign, die or reach retirement age, which was 70. That was highly problematic. In the new constitution, which is now suspended, it did impose a 4 year limit on [the prosecutor general’s] appointment that would only be once in a lifetime and it did give the president the authority to appoint him, but he had to ask for the judiciary’s advice on that. But it at least limited the damage that a bad prosecutor general could do. It also didn’t tie the hands of a new president that may be coming into office through an election, by not having to be stuck with a prosecutor general that was pre-existing from the old regime, and who may be sabotaging the new president’s agenda.
Another very important rule of law issue that got very close to being passed 3 times was the Freedom of Information Act (FOIA). EARLA has published an extensive report that discusses how fundamental that law is to rule of law and to democracy because if you don’t have transparency, or access to information then you can’t hold your government accountable. And you operate in the dark and in a world of conspiracy theories where there is no access to the facts. So therefore public perception can be manipulated based on rumors and the public can’t find out for themselves what the truth is and it also affects journalists and their ability to access facts. It could lead to unprofessional practices where journalists are desperate for a story and they rely more on hearsay, which may be used to manipulate information and again the public is not adequately informed. Without that transparency component it’s very difficult to move forward.
Sally Baraka: When Morsi came in, it was somewhat of a failed administration. There were requests that he be more inclusive of different political views, and in theory, he tried to have a group of drafters of the constitution that did come from different backgrounds. But obviously that wasn’t very successful and that was one of the gripes of the Egyptian people. But there were different processes put in place. For example, the concept of the referendum that took place after the constitution was drafted reflected an intent to have government by the people. The group of 50 or so people that were drafting it, they finished the draft, but it still had to go to the population to vote on and it did pass.
How will the recent changes in Egypt impact the rule of law work you’re doing?
Sahar Aziz: Everything is on hold right now because of what happened on July 3rd. The military deposed Morsi and there’s a debate as to whether it’s a coup or not. The extent that it does turn into a military regime, even if it’s not facially so, it doesn’t bode well for rule of law in Egypt.
There is a very strong legal reform community that is composed of civil society leaders, development specialists, human rights lawyers, private sector lawyers, and government lawyers. People understand and they know the situation needs to be fixed. The legal regime needs to be fixed and many of them know how to do so but to actually implement that is very difficult because of the political situation. There needs to be stable processes that are put in place where people can resolve their differences without constantly having to resort to the streets, which is very destabilizing. Until that happens, rule of law is going to be put on hold.
Legitimacy is one very big challenge that is more of a political issue, but it does affect rule of law. Legitimacy is a key component of rule of law. What you produce out of a legal process has to be legitimate and part of that is having a consensus and part of that is making sure that every significant stakeholder feels they have an opportunity to give their input, to highlight the flaws, to give their critiques, and to have their perspective be heard.
The next 3 months will be very important in terms of establishing a baseline in the new constitution to make sure that some of these key laws such as separation of powers between the 3 branches, the independence of the judiciary, keeping a check on the prosecutor general’s office in light of past abuses, ensuring that freedom of expression and association are protected, ensuring women’s rights at a fundamental constitutional level are protected, and ensuring that the executive does not find alternative means to control the judiciary.
As members of the Egyptian Diaspora and the legal community in the US, EARLA has a very unique role to play in strengthening rule of law in Egypt. How has this role helped strengthen rule of law efforts in Egypt and does it help to operate as an entity distinct from the international community?
Sally Baraka: Because EARLA is based in the US, we revised the amount of impact that we can have given how far we are. But we view ourselves as a research or support arm to the work that is going on inside of Egypt. The reason that the Freedom of Information legislation became a project for EARLA was that groups within Egypt, groups that support civil society in Egypt, recognized it as something that was needed. We took on the role of doing the research and comparative research of what other similar governments have gone through.
I think definitely because we have that Egyptian connection it’s easier for us to have access to those that are doing this work. If you’re going into different parts of the world and advocating for rule of law it becomes difficult to promote an image of rule of law that’s more western. You need to tailor the arguments for rule of law or the efforts for rule of law in other countries that share similar, not just cultural, but also economic backgrounds because then it becomes very valuable. One of the things that EARLA did in the FOIA report was a comparative analysis and also the other valuable thing is that it tracked what governments were able to achieve when they implemented FOIA legislation. One example was India. While India is very different culturally from Egypt, the story behind it is something that Egyptians can relate to. So the cultural part is very important but also other struggles a country faces such as economic pressures, and education. It’s easier to make the case for rule of law when doing it from the perspective of other countries that aren’t western.
Sahar Aziz: I think what EARLA does is provide a nuanced, sophisticated, and diverse analysis of the situation in Egypt vis-a-vis rule of law. We are over 55 members now with very different skills and areas of expertise and also different perspectives, politically and ideologically. I think it brings to the table these perspectives that are enriched and informed by the Egyptian perspectives. We in many ways are a liaison between Egypt and the United States and I think that’s a very important role and voice that’s been missing. Many of our members interject into the discourse a lot of fresh perspectives that are not included in, for example, the DC policy circles which do influence American foreign policy. They also bring with them training, a skill set, and a perspective that is based on the strengths of the American legal education and legal system and they bring that to bear when we speak with our counterparts in Egypt. We can give them perspective of how things can operate differently. We understand things are very different in Egypt, but here’s how the system here has been able to function as well as it has. Our interaction with the Egyptian legal reform community exposes them to that and creates relationships and whether formally or informally, that’s where we see ourselves being mutually beneficial to both sides of that relationship.
Many first and second generation members of other Diaspora’s are seeking to play similar roles in strengthening rule of law efforts in their country of origin. How has EARLA mobilized the Egyptian Diaspora to build rule of law in Egypt? What have been some of the challenges and lessons learned?
Sally Baraka: If you’re not an attorney, it’s not easy to facially convince people that this is something that is just as important as building hospitals or distributing food. In these countries where there are bigger issues, it’s not at the forefront of people’s mind to establish laws that promote rule of law. We certainly face that within the Egyptian community. When there were shortages of food or oil as what happened this summer in Egypt, those are the more immediate needs people think about. It’s a little bit more difficult to make the case for supporting rule of law efforts when you’re not an attorney that recognizes this as self evident. It requires more engagement, but people care enough about the transition in Egypt and the government and the middle east. They’re very curious to see what will come next in Egypt.
Sahar Aziz: EARLA is focused solely on the legal Egyptian Diaspora and to some extent policy experts. We’re not a grassroots organization. I think we’ve been very successful at attracting the best and the brightest and we continue to get inquiries by other Egyptian American lawyers who discover us and are very interested in joining us. We’re able to mobilize and be more efficient in being a resource for all of these individuals who want to find a way to assist the Egyptian legal reform community through their own specific skill sets. This is a one stop shop for the legal Diaspora, the Egyptian lawyer Diaspora, for those who are looking for that type of information or that type of support whether it’s in the DC think tank/policy world or whether it’s in the Egyptian legal reform community.
What lessons have you learned from the rule of law work you’ve done in Egypt?
Sally Baraka: I went in October [to Egypt] and we were promoting a new report on the Freedom of Information Act (FOIA)and sharing it with as many civil society groups as possible because we knew that there was going to be legislation or we were hoping that there would be legislation that would bring about FOIA. One group in particular was promoting different types of campaigning and voting activities and when we met with them, that meeting was insightful because it was one of the few glimpses that we got of the young mid-20s to early 30s generation of Egyptians that still are in Tahrir square. They were the ones that were carrying the revolution. At the time that we were there, we already had the Muslim Brotherhood in power, so those that were in government looked very different from those protesting in the square. These younger groups who don’t share the same similar political ideology, they came from a variety of backgrounds, and political views and they were coming together to promote an organization that would help Egyptians recognize and learn about the campaigning and voting process.
The youth recognize the need for non-partisan rule of law type developments. They appreciate it the most; the benefits of establishing a strong legal structure in the country. It didn’t matter to them what the political background was, it was an apolitical/non partisan effort among these individuals to build something that would be more solid to withstand the test of the time. Whereas a lot of other people we met with, their political views shaped their view of civil society. That element is still very strong in Egypt and I think it’s probably what caused the protests of June 30th. The lesson moving forward is that this group has to be included in whatever changes come from the government.
Sahar Aziz: Making sure that you do not fly in and super impose an agenda that you created based on a completely different context or some abstract idea. Make sure you have credible partners, people who are serious about the work that you’re doing, as opposed to those who may be opportunistic and have ulterior agendas. It’s very important to be transparent and not hide anything or be afraid. If people reject you, then you have to accept that because it’s not your right as an international group, to assist the country and the people, it’s a privilege and they can retract that privilege.
Also I would suggest, don’t become political. Don’t be a political organization- that is a domestic issue. You have to let countries figure out their own political issues. You have to understand that your role is really supportive as defined by the circumstances of that country and the people. Your role is not to go become a political stake holder because you’re not a citizen of that country.
What do you think international organizations should be doing to improve the rule of law in Egypt?
Sally Baraka: If international organizations can help those on the ground by linking those that have been successful and linking their efforts with aspects of Egyptians, I think that would be tremendously beneficial. If countries like Mexico or India or those that have been really strong in the rule of law work, if they are able to communicate with Egyptians and share with them one on one their experiences, I think that could be very valuable and I think people in Egypt are open to that story as opposed to a story of a more western approach to rule of law. There’s a lot more inherent credibility with those that have gone through this in the past 10 years as opposed to those who have had those types of rules for decades.
Sahar Aziz: The most important principle to keep in mind is that at the end of the day the Egyptians themselves have to fix the system. They have to decide what values any reforms are going to be based on. The international community has to approach it with that perspective – that this is an indigenous project and then think about how they can support the process and define their programs based on the request or the stated needs of those on the ground doing this work. This is a key component of our approach is we do not go and read things and think about ideas in abstract and then decide that “Egypt needs X. This is how to fix it.” We go and speak to people there, who live and work in the trenches. This is their life commitment and we talk to them and ask how can we help you. And some of them say you can’t because of various circumstances, and others say you can and here’s how you can and then we decide is this something we can do and produce in a high quality matter or is this outside of our own scope. That’s how we collected the freedom of information as our key issue. We spoke to many different people there and we found that was a very consistent need and they felt they didn’t understand the issue very well and they didn’t have the time to research it.
One EARLA member commented that a cultural shift must accompany constitutional reforms for a genuine democratic transition to take place. As members of the Diaspora, what role has EARLA played in helping with this shift and what have you learned?
Sahar Aziz: The cultural shift is really about shedding the adverse consequences of oppression and the oppressive regimes they’ve been under for 60 years. I think that it is a cultural shift to have enough confidence in the system to think, that if I lose it doesn’t mean I’m going to be imprisoned, tortured and possibly executed. When the stakes are that high you can’t afford to compromise or lose. Everything is an existential battle. The government also needs to stop violating human rights, freedom of expression, and making the consequences very harsh and the stakes very high so people can have that space to do that. But even when the space is there, people need to get used to it and accept it. We can disagree and still be friends. If we lose an election, we don’t have to boycott and try to bring the system down and try to destroy everything. I can preserve the system and try to figure out how to win in it. That is certainly a different mentality.
There’s not that much we can do, this is a grand societal issue, and it’s going to take years possibly a generation to do. The only thing we can do is emphasize those points and be an example. We are able to do it internally. We’re able to function as a society this is how we deal with losing and disagreeing and these are ways we resolve our disputes and hope that affects those we work with, even on a micro level, but realistically that’s much more of a national project and beyond the scope of EARLA.
Sally Baraka: It is a cultural shift to now expect that your government is going to be transparent. There has to be among Egyptians, a shift in their perception of what government will and will not disclose. If FOIA was passed in Egypt, hopefully you’ll have a group of people that now want to seek out that information. So the expectation that Egyptians have towards their government, because the expectation is so low, it’s like they have to expect a little bit more and be a little more involved themselves.
Leaders have to take charge in some of these things and gradually people will appreciate the benefit and will start asking, whereas before they may not ask. If they change the expectation, whether or not it leads to action, it gets them to want the information. The journalists are probably the biggest element with this regard. Hopefully they too will have a role in shifting expectations and the information they report and demanding more transparency from government. If readers see and get that information, then hopefully people will become more inclined to ask questions.