Ways to Strengthen the Democratic Transformation in Egypt

A conference held in cooperation between Cairo Institute for Human Rights Studies, the United Nations Democracy Fund (UNDEF) and Foundation for International Relations and Foreign Dialogue (FRIDE) Spain

26 27 July 2011 Cairo, Egypt Semiramis Hotel

Necessary Safeguards against the Reproduction of the Police State

Dr. Mohammed Mahfouz Former Police Officer Member of the Officers, But Honorable Coalition

The term police state is often used in intellectual circles more as a synonym for a generally repressive state and less as an academic term describing a set of practices in the political administration of the state. A police or security state is one that manifests the following characteristics: The line separating the law and state institutions exercise of their prerogatives is confused and blurred. What the state does or wants becomes tantamount to the law. In turn, the enforcement of the law in a police state depends on top-down orders that either permit or prevent enforcement; it is not related to the autonomous force of the law. Most problems, whether economic, social, or political, are left to fester until they become security problems. The security apparatus is then called upon to intervene and address them with security solutions, which naturally tend toward repressive methods. Solutions are also always intermediate; they may disguise the signs of resistance to the problems, but they do not stop the buildup of rage, which may explode in bursts. Access to important government positions in all institutions engaged in all type of activities is dependent on the approval of the security apparatus, even if the law does not mandate it. A sizable share of government positions of all types and competencies are allocated to security personnel. Much non-security related, social activities are put under the purview of various security institutions. As these characteristics illustrate, the police state has an institutional structure and political traditions that make its survival independent of particular individuals or an individual ruler. It is a political system whose perpetuation is grounded a series of institutions and set of practices, which can only be eliminated through an integrated set of safeguards that permit the dismantling of these institutions and the criminalization of these practices and so block any attempts to reproduce the police state. These safeguards are discussed below. I. Functional safeguards (to address dysfunctions) These are safeguards related to the proper functioning of the security establishment in society. In a police state, there are deep-rooted functional deficiencies in the structure of the security apparatus that cause it to deviate from the means and objectives it is meant to serve. The role of the security apparatus in any society consists of two related parts: Preventive role: The aim is to prevent crimes before their commission through precautionary security measures, guards, security patrols, and surveillance cameras in cities, neighborhoods, and places of assembly. An overt, deterrent security force narrows the space for lawbreaking. Criminal role: The aim is to apprehend those responsible for crimes after their commission through collection of evidence, questioning of witnesses, and apprehension of suspects of convicts. Both the preventive and criminal roles are marked by dysfunction due to the structure of the police state. The preventive role is distorted by the undue expansion of suspicion, which indicates the security establishments exaggerated concern with prevention. This, in turn, has a negative, unintended consequence: the presence of police forces in the street tends to intimidate citizens rather than inspiring a sense of security. Ultimately, the obsession with preventive security is directed to political security (the security of the regime) and becomes a justification to spy on political parties, opposition figures, and professional, labor, and student associations. The criminal role is distorted by the security apparatuss usurpation of prosecutorial authority. It supersedes its role to collect evidence and begins exercising investigative authorities with suspects to extract statements and confessions using psychological or physical coercion.

The proper role of security, both preventive and criminal, is inextricably tied to the political regimes political will. Establishing clear boundaries and red lines that the security establishment may not overstep and setting deterrent legal penalties to prevent the apparatus from usurping the prerogatives of other authorities requires the following safeguards: 1. Public oversight: Through a constitutional guarantee of the principle of the separation of powers, this establishes the elected legislative branch as the permanent watchdog of the executive and its security apparatus and makes the judiciary independent and capable of exercising all its authorities without fear of conflict with other state authorities. 2. Social oversight: By legalizing the role of civil society rights groups to exercise popular social oversight over the security apparatus, a type of oversight independent of and competing with legislative and judicial oversight. 3. Internal oversight: By granting security personnel the right to association, thus permitting them to establish a syndicate to defend their rights and regulate their duties. This will help foster awareness among security personnel of the importance of establishing internal oversight norms that shore up their sense of moral responsibility to society, in consideration of the rights guaranteed them in the constitution and the law. At the same time, this is closely linked to a set of constitutional and legal obligations that aim to achieve security for society, not security for the state. As this illustrates, a specific, clear legal formulation of the preventive and criminal roles of the security apparatus which must be accompanied by several guarantees that achieve public, social, and internal oversight, such that this triangle provides the functional framework to deter any practices that may reproduce the police state. II. Structural safeguards Structural safeguards involve restructuring the police apparatus to change its existing institutional structures, which reflect the police states need for security institutions as a tool to guarantee its survival. These structural safeguards are: 1. Address the inflated organizational structure of the security apparatus: In a police state, the Interior Ministry is given non-security related duties that permit the security apparatus to keep an eye on all state bodies, which allows security concerns to pervade society and has a negative impact on the performance of securitys basic tasks. As such, the Interior Ministry must be relieved of all duties unrelated to the core of its security competence that negatively influence the performance of its fundamental mandate. For example, the Interior Ministrys jurisdiction over the organization of the pilgrimage should be transferred to the Ministry of Awqaf, while the Civil Status Department can be placed under the Ministry of Administrative Development. Responsibility for issuing work permits can be given to the Ministry of Manpower; the Passports, Immigration, and Naturalization Department can be moved to the Foreign Ministry; supervision of prisons can be placed under the Justice Ministry; and medical oversight of detention facilities and prisons can be shifted to the Health Ministry. In addition, several non-security related tasks assumed by general directorates that are directly under the Interior Ministry must be abolished, as security offices of other bodies or private security firms can perform these tasks using trained security personnel. These include, for example, the General Directorate of Transportation Police, the General Directorate of Electricity Police, the General Directorate of Tourist and Antiquities Police. These bodies constitute a human and financial burden on the security establishment that restricts the performance of the primary tasks of the security apparatus. They permit the security apparatus to extend its reach into all state facilities and allow the security state mentality to pervade society. 2. Decentralize the National Security Agency: To ensure that State Security will not be reconstituted under a new name, the competencies of this agency in the sphere of political crime and counterterrorism must be transferred to divisions (and merely divisions) attached to local police 3

offices in every governorate. The issue at hand is not the agencys prerogatives per se, but rather the agencys centralized structure, which makes it semi-autonomous and thus unduly stronger than other state authorities and citizens. Decentralizing the agencya major pillar of the police state distributing its competencies to local police, and merging it into a central authority with general jurisdiction over political and ordinary crimes that exceed the capabilities of the local police, as only one division among many, will do much to bring this agency down its normal size within the security establishment. 3. Police academies and institutes: The teaching system at the police academy and its institutes must be fundamentally overhauled to stop training security personnel to be tools of the regime; numerous police academies, civilian and open, should be established. This will promote the civil nature of the police force and eliminate its martial aspects. This can be accomplished through several interventions: Abolish Article 14 of the police academy law, which places academy students under the jurisdiction of martial law. Abolish the closed-campus system at police academies; students may live at home or in other dormitories with students of other academies. Establish several police academies on a provincial level instead of maintaining only one academy in the capital, thus also addressing the security gaps between provinces. Limit enrollment to police academies to graduates of law schools and train them for police work within an appropriate period for their area of specialization. 4. Abolish the detailing of conscripts from the armed forces to the Interior Ministry: the police academy has contributed to the militarization of the police, but there are other causes as well: The detailing of military recruits to the Interior Ministry, where they perform their compulsory military service, under Article 2B of the military and national service law. Minister of Defense Decree 31/1981, which considers the Interior Ministry a military institution in which military service may be performed. Unfortunately, detailing military conscripts to the Interior Ministry for the term of their service militarizes the police, in violation of the former constitution and the current constitutional declaration. In order to end this militarization, which is a primary prop of the police state, this system must be abolished. Service in the Interior Ministry should be by appointment only, such that the ministrys second rank is limited to police who accept of their own free will to be involved in the security profession. 5. Abolish the Central Security Forces and the Security Forces: abolishing the system of detailing conscripts to the Interior Ministry necessarily entails abolishing the Central Security Forces and Security Forces sectors, as these are the armed pillar of the police state. Anti-riot forces attached to local police departments, to be staffed by specialized police personnel, not conscripts, should replace them. The prime task of these forces should be to protect assemblies and demonstrations, not prevent or restrict them. Further, the law should criminalize the use of weapons against any popular assembly unless there is gunfire from the demonstrators. III. Administrative safeguards Administrative safeguards are those that counteract the administrative methods that produced the police state by replacing them with alternate methods that reproduce the rule of law. These include: 1. Political administration: The Interior Ministry should be headed by a political minister from outside the police, thus allowing security issues to be approached from a social and political perspective and ensuring that the ministry will be bound by the security agenda and priorities of society rather than imposing its own security priorities on society. Ending reliance on a security figure to lead the Interior Ministry will allow for a broader political vision of security management, taking it 4

out of the narrow, professional vision that is more aligned with the security establishments interests than those of society. In turn, this further promotes the idea that the Interior Ministry is an instrument to serve society rather than the arm of the regime. 2. Local security administration: The security establishment must be transformed from a strongly centralized administration to a local administration with every governorate having its own police administration; this administration should be subordinate to the provincial governor in executive matters and subordinate to the Interior Ministry in technical and administrative matters, with the caveat that governors are elected. This would make improving security services an element of the campaign of gubernatorial candidates, which would in turn help direct the security apparatus to the service of citizens rather than the central authority and would wholly divorce the apparatus from the executive authority and the compromised relationship that only produces a police state. 3. Election of the head of the judicial authority: Experience has shown that the lack of any responsibility for the management of the judiciary undermines its independence. Whether the executive intervenes in the operation of the judiciary or judges refrain from assuming their constitutional responsibility toward the people, the result is similar. An authority without responsibility opens the door to corruption and neglect through which the pressures of the executive may be felt. Judgments issued by the courts are headed by the phrase, In the name of the people, illustrating that the judiciary draws its powers from the people and issues judgments in their name. The election of the head of the judicial authority is thus necessary to make him responsible to the people for the competence and honesty of the judiciary. This will prevent the police state from reproducing itself through a principal instrumenta non-independent judiciary. IV. Legislative safeguards These refers to the need for amending legislation to eliminate the ambiguous legal formulations that open the door to police state practices and to make it appropriate to the institutional reforms of the security apparatus to bring it on the side of citizens instead of the regime. These safeguards are: 1. Amend provisions of the Penal Code related to domestic crimes and misdemeanors harmful to the government, and all other articles related to the issue. These provisions are ambiguously worded and vague, which creates a broad punitive framework that stokes a general climate of fear and allows the bodies responsible for the security of the government (or the state) to grow stronger than citizens and other state authorities. 2. Pass a new police law that meets the demands for respect for the rule of law and human rights, and is suited to the structural changes to the security apparatus and its role in society. 3. Ban security personnel from public office for a period of several years after their retirement. 4. Amend legislation to make it possible to directly petition the Supreme Constitutional Court, which will allow direct challenges of all violations of constitutional principles, rights, and liberties and thus deter practices that tend to reproduce the police state. This set of functional, structural, administrative, legislative guarantees constitute a framework that will block attempts to reproduce the institutions and practices of the police state and, in turn, lay the foundation for a state of human rights and public liberties, where the separation of powers is entrenched, and law is sovereign.