Heba M. Khalil is an assistant professor of sociology and criminology at Nebraska Wesleyan University. She holds a Ph.D. in sociology from the University of Illinois Urbana-Champaign, where she studied Egyptian legal professionals and their politics.
In a forthcoming paper with the Indiana Journal of Global Legal Studies, she traces the role of the bar association in Egypt and its relationship to autocratic tendencies. In this interview, she discusses her research and the general role of lawyers in supporting or enabling democratic decline.
Your research focuses on the role of the bar association in Egypt, so let’s begin with that. Could you tell us about lawyers’ associations in Egypt and their role enabling or resisting democratic decline or authoritarianism?
The main crux of my forthcoming paper is about the lawyers’ association, and I look at two historical moments that I think are very comparable to one another. One is in the ’50s, and the other one is in the last 12 to 13 years. These are two moments of rising autocratization in Egypt, and I’m asking: What is happening to the lawyers in these moments, and what roles are they playing?
The lawyers’ association in Egypt is pretty much like the American bar. You have to go through their exams to be able to practice the law, and you belong to specific regional associations, and that association belongs to the National Association of Lawyers. If the association wants to kick you out, you can’t practice law. I highlight two connected moments because we see how the lawyers, represented by a very strong association in the 1950s, are the ones who are trying to correct the path of a government takeover later. In the ’50s, the military overthrew the Kingdom in the name of liberating Egypt from British occupation. They liberate Egypt from colonization, but then they end up building an autocratic system out of that. In this moment, we see the lawyers’ association very carefully praising the anti-colonial movement and becoming the intellectual powerhouse of the political elite in Egypt throughout the 20th century. They appreciate that the military and decolonization were needed. But at the same time, they’re looking at how the military is not returning to the barracks and they’re concerned.
Despite [the bar association’s] best efforts, lawyers en masse joined the protests.
Heba M. Khalil, assistant professor, Nebraska Wesleyan University
In episode after episode, we see how the bar is trying to speak out against the consolidation of power. But this results in punishment. It’s not the classical way we might expect of imprisoning a bunch of people. Instead, the state punishes lawyers by trying to undermine the association and its power in the country.
This takes us to 2011—what we call the Arab Spring. We hear calls for protests on the national day of the police in Egypt—January 25, 2011—and the calls had been ongoing for two weeks. Everybody knew that there would be at least a protest; nobody knew how large it would be. The association officially communicates to lawyers messages like “You cannot protest” and “If you’re a lawyer in Egypt, you cannot protest; we don’t do that” and “This is a ploy to destabilize the country, and we support the current government” and “We support reform, but we don’t want a revolution. We don’t want to overthrow the system or anything like that.” They even have signs on the association doors: “We support stability.” But despite their best efforts, lawyers en masse joined the protests. And there wasn’t really the fear of being disbarred, which is interesting, because technically and legally the association can disbar anyone. They can take away the ability to practice the law in courts. But I think the lawyers knew that the association was too weak to even recognize specific people who are instigators of protests or active participants in the protest movement and go after them, especially when recognizing freedom of expression.
There was a sense that “the association says something, but that doesn’t mean anything to us. We don’t have to obey them.” And with that we see a big mass of lawyers join the democratic movement and organize in very clear networks, including building the Front for the Defense of Egyptian Protesters, a nationwide collective of pro bono lawyers with representatives in every region, which to this day still exists. Lawyers start organizing apart from the bar association.
In 2013 the military will come to the forefront again and consolidate power after a revolution and after two years of a democratic experience, a new constitution, elections, and everything, they overthrow the incumbent and they come to power, again, at the heels of protests. During this second moment of autocratization, the lawyers’ association wasn’t even invited. In the 1952 moment, the head of the association, the representative of all lawyers, is sitting at the table, and he needs to at least nod. If there’s no buy-in from him, then what’s happening is considered illegal, or not necessarily unconstitutional but there’s something wrong with it. In the 2013 moment, the association is not even invited—even though a lot of people were invited, it wasn’t a small group. If it’s a big party, and you never got invited to the party, something’s wrong.
There are many people there to represent the judges, and the person who ends up enabling the whole show is the head of the Constitutional Court—Adly Mansour. Mansour takes on the presidency for another year in a transitional period that the military oversees. But the association is not there—they are not strong enough to even enable autocratization. And still, lawyers have a lot of space to organize in different ways that could potentially undermine this autocratization.
How would you describe the role of lawyers in enabling or resisting this autocratization?
There are very simple and clear ways in which lawyers can enable any system. Lawyers represent the government at times; they represent incumbents. The current president of Egypt, who used to be the Minister of Defense, has his own lawyers. They’re the ones who suggest legal language for specific laws. These are a very elite class of lawyers.
But largely, the enablers of democratic decline tend to be the judges. In Egypt, lawyers and judges don’t mix. This isn’t a story where everyone goes to law school, and then you practice as a lawyer for a few years, and then you go and become a prosecutor or a judge. In Egypt, judges and prosecutors keep themselves separate from lawyers and the legal profession, because they don’t view it as classy enough. They go to law school, but they don’t necessarily go to the same law school. Law schools are state schools in Egypt, and we’ve historically had French and Arabic language state schools. Like other state universities, they are tuition-free, and the Arabic ones are the ones that produce the class of lawyers. Now, Arabic is almost everybody’s mother’s tongue, so it’s not a big deal to know the Arabic, but if you know French, then that tells us something about you. You must have been sent to private school to pick up French by the time you’re getting ready for college, because you’re studying Egyptian law in French.
These are remnants of the colonial system, but they continue to be in place. And they are public schools, so you still don’t pay much tuition, but you go into the French section. And that French section of the Cairo University School of Law is a place where they recruit the judges. On one hand, they’re getting very similar types of education, but there’s a very clear class division between who gets to become a lawyer and who gets to become a judge. Those who want to become judges will either work in the court system or join the prosecution and become a prosecutor until it’s time for them to apply for a judicial position. This is a divided profession—it’s not 100 percent separate. Sometimes people can cross, but largely the overlap is kept at a minimum between both professions.
Not every lawyer is there to resist, and not every judge is there to enable, but there is definitely a class interest for the judges to enable autocracy, and their association is very willing and able to enable.
Heba M. Khalil
Judges are considered an elite part of the profession and hold a special place in the Egyptian ruling system. They’re constantly portrayed as neutral. “We’re not doing politics” is what they always say. They are also always fighting for judicial independence. During every election—for their association leadership or executive board—it’s always about judicial independence. But when you look into what judicial independence means to them, it means controlling their budgets, controlling whom they hire and how they run the profession. Egypt’s current president, Abdel Fattah El-Sisi, pushed very hard for more women in the judiciary, and the judges refused, insisting on their judicial independence. They are OK with reproducing autocracy and repression in the courtrooms, but don’t touch their judicial appointments.
Of course, not every lawyer is there to resist, and every judge is there to enable, but there is definitely a class interest for the judges to enable autocracy, and their association is very willing and able to enable. And there is a common class interest for the lawyers to resist, even though there are lawyers who don’t share in that view, who want to join the government. One of the big ways that lawyers can act as enablers is by running for parliamentary positions and joining the judicial committees, which are like judicial committees in the U.S. Congress, for example. Then, they can write laws that legalize repressive and autocratic practices, such as laws that make protesting harder, or freedom of speech more restricted, and strikes more difficult, and so on.
The resistance component is really interesting because I think that’s where you see how fragmented the legal profession is. There are well-coordinated efforts, like the Front for the Defense of Egyptian Protesters. We joke a lot about government services being slow, but you text the Front’s number and you say, “I need to be bailed out” or “I was arrested in a protest,” and within an hour, there’s a lawyer with you. They’re everywhere and they’re efficient.
So you have this expansive network of lawyers in the Front, but then you also have local lawyers who represent their communities. One of the most important instances of autocratic legalism in Egypt in the last 10 years has been displayed through forced evictions. It’s not the police force kicking people out of their homes without any legal basis. It’s very legally structured, the court is involved, a judge is involved, there’s a warrant involved. It’s all done according to the law, usually by saying, “We need this number of homes because we need to build a highway.” Or, “This is going to be a new bridge.” Or something for public interest. It’s a great example of autocratic legalism because you see how basic rights get stripped away in the name of the law and legality.
Lawyers have to find all kinds of ways of organizing their communities in and outside of courtrooms.
Heba M. Khalil
For a number of years, when community lawyers took these cases to court—some of them were major cases with huge populations in the heart of Cairo—they were very successful. Resistance was simply representing the communities. But lawyers were too successful for a number of years in challenging these cases, to the extent that the judicial committee and the parliament had to change the law because the government was losing in court. Now, the government does not need an excuse to kick people out of their homes.
Now, the lawyers have to find all kinds of ways of organizing their communities in and outside of courtrooms. Sometimes they would organize a literal protest in the courtroom without saying that they’re organizing a protest. They would tell the community members, “You’re going to have a court session today.” The judge presiding really gets swayed by public opinion. Judges want to be liked and viewed as very just and pro-people. Lawyers will tell communities, “Show up to court, and during the session, just hold a protest. Even if you get kicked out, it’s fine. Just show them how many people are behind this.” So they do everything from arguing in court on the law to grassroots-level organizing to challenge autocratic legalism.
What strategies have lawyers developed to operate in Egypt?
Despite the strategies lawyers use to continue to operate and do their jobs, I should note that they still, at times, get imprisoned. Sometimes it’s at the calls of the judges. If a lawyer loses their temper in court, a judge can hold them in contempt and put them temporarily in jail. If a lawyer is causing issues at the prosecutor’s office, a prosecutor can call for a lawyer to be jailed. When lawyers face those issues, and because they have a very weak professional association, they have no protection.
For instance, one strategy lawyers have used, like any activist on the street, is to record what’s happening on their phones. If a prosecutor is mistreating a defendant or even the lawyer, they’ll start recording, and they’ll make a scene out of it. They share it to social media, and it reaches the news. A few years ago, prosecutors decided, “You know what? Lawyers are not going to be allowed to come in with their phones anymore.” Lawyers gathered tens of thousands of signatures, and they took it to the elected head of the lawyers’ association, who met with the prosecutors to no avail. So even when the association tries to intervene, it’s too weak to be taken seriously.
What lawyers have is—and I know this sounds a little cheesy—but they have each other. They created the Front for the Defense of Egyptian Protesters to protect other protesters, but through that, they created their own network of people who will stand up for them when something goes wrong. When a lawyer gets in trouble, that person is not just going to be an anonymous name who’s rotting in jail and no one can remember them. They’re going to have people show up and look for them. Resistance lawyers have also built really strong relationships to the communities.
Having a strong [bar] association doesn’t necessarily mean that you’re able to resist autocratic legalism. You might buy into it, and you might be more likely to enable it.
Heba M. Khalil
It’s more controversial, but lawyers have also learned that lawyering is about more than professional ethics. It’s also about causes. Lawyers can be very political about their causes, to the extent that one of the strategies they use is to take a case to court knowing full well that they will lose the case or the case will be dismissed, but they want it to be dismissed or they want to lose in court so that they can use this to go to the media and show what’s broken in the justice system. They have done this, for example, with the protest law. In 2016 Egypt began restricting the freedom of assembly. For any type of protest of any size, you need to get permits. When kiosk owners were fined after protesting new street vendor laws, lawyers knew that according to the new law, they would lose if they were to take that fine to court. But they still took the case to court, lost in court, and ended up going to the media to show that these very poor working-class kiosk owners, who have very legitimate concerns, are just trying to stage a peaceful sit-in of their economic conditions, and that the restrictive protest law is making their peaceful protest impossible.
What can lawyers in other countries learn from the experiences and interplay of lawyers’ resistance or enabling of government power in Egypt?
The absence or the weakening of the lawyers’ association in itself doesn’t mean that lawyers are dead, or they’re not present, or they’re absent, or anything like that. I think there is the tendency to think you either have a bar that is very strong, and then the members of the association and all the lawyers are very strong, or you have a weak association, and then everybody’s weak and there’s nothing there.
We also need to be mindful of what it means to have a strong association. Comparing the lawyers to the judges in Egypt highlights that if you were to have a strong association—and by strong I mean an association that has to be reckoned with in national politics, that is well respected, and that also has good control over its membership—we would probably not see any movement on the side of lawyers. They would have too much interest to protect, like the judges, and they would be easily silenced. When judges have tried to rule independently in their courtrooms in ways that the executive branch wasn’t happy with, the executive punished their association, and in turn, the association ended up punishing the judges. In one famous case, for instance, where Egypt was ceding sovereignty of two Red Sea islands to Saudi Arabia, judges ruled in a way that made the executive branch unhappy in a number of courts at various levels. At the Constitutional Court level, all the decisions were reversed on jurisdictional grounds and the judges were punished. Judges were skipped for promotions, some of them were forced into early retirement, and some of them were punished by denying their sons jobs in the judiciary. They weren’t imprisoned, but they were punished.
The message then is having a strong association doesn’t necessarily mean that you’re able to resist autocratic legalism. You might buy into it, and you might be more likely to enable it.
Heba M. Khalil is an assistant professor of sociology and criminology at Nebraska Wesleyan University.
