Corruption After 25 Jan

Electronic copy available at: http://ssrn.com/abstract=2246459

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AFTER THE REVOLUTION: EGYPT’S CHANGING FORMS OF CORRUPTION1

M. Patrick Yingling2 and Mohamed A. ‘Arafa 3

“When a republic has been corrupted, none of the ills that arise can be remedied except by removing the corruption and recalling the principles; every other correction is either useless or a new ill.”

- Montesquieu, The Spirit of Laws

INTRODUCTION

Egypt’s revolution of January 25, 2011 was the result of many factors. One of those

factors was government corruption. More specifically, it was “conventional corruption,” which

occurs when government officials illegally abuse public office for private gain. Illegal quid pro

quo transactions, including acts of bribery, are prominent examples of conventional corruption.

This form of corruption is to be contrasted with “unconventional corruption,” a form of

corruption that has only recently begun to emerge in Egypt. Unconventional corruption occurs

when elected officials make decisions without regard for the public interest, but in lieu of an

illegal quid pro quo transaction, in order to achieve re-election to public office. This often

overlooked form of corruption involves decision-making that is undertaken to induce private

parties to make campaign contributions and expenditures. Thus, with unconventional corruption,

1 This article will be published in the University of Baltimore Journal of International Law in 2013. The

article was presented at the International Law Weekend Conference at Fordham University School of Law on a panel titled “Towards a Culture of Accountability: A New Dawn for Egypt” on October 27, 2012 and will also be presented at the American Society of Comparative Law, Younger Comparativists Committee Conference at Indiana University Robert H. McKinney School of Law on April 19, 2013. The authors thank Ronald Brand, Ahmed Eldakak, Haider Ala Hamoudi, and Ian Hartshorn for the helpful advice. The views expressed, along with any errors, are to be attributed only to the authors. The content of this article is subject to change until publication. Please only cite to the final version of the article.

2 Law Clerk to the Honorable D. Michael Fisher, U.S. Court of Appeals for the Third Circuit, 2012-2013; Associate, Reed Smith LLP, 2012; Visiting Lecturer, Moi University School of Law, Kenya, 2011; J.D, University of Pittsburgh School of Law; B.S, Bucknell University. For any comments or questions, please contact the author at [email protected].

3 Adjunct Professor of Islamic Law, Indiana University Robert H. McKinney School of Law; Assistant Professor of Criminal Law and Criminal Justice Systems, Alexandria University Faculty of Law, Egypt; S.J.D., Indiana University Robert H. McKinney School of Law; LL.M., University of Connecticut School of Law; LL.B., Alexandria University School of Law. Professor ‘Arafa is also a Visiting Professor of Business Law at the Arab Academy for Science, Technology, and Maritime Transport (College of Business Management). For any comments or questions, please contact the author at [email protected].

Electronic copy available at: http://ssrn.com/abstract=2246459

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elected officials make decisions with the purpose of serving a relatively small group of political

funders and spenders, instead of making decisions with the purpose of serving the people.

The unconventional corrupt act is not the spending of money by private parties or the

intermediary actions of lobbyists; rather, it is the elected official’s decision to act without regard

for the public interest for campaign finance purposes. Unconventional corruption is not a

problem associated with gratitude; it is problem associated with incentives – the wrong

incentives. Instead of decisions made with the incentive of serving the public interest, elected

officials make decisions with the incentive of receiving future campaign contributions and

expenditures.

These different forms, conventional and unconventional corruption, are not necessarily

exhaustive of the universe of corruption. However, classification of corruption in these terms

serves a purpose. These forms of corruption are related – when conventional corruption

decreases, there is a correlating increase in unconventional corruption. This article analyzes

conventional and unconventional corruption in the context of Egypt’s remarkable past, its

tumultuous present, and its hopeful future. Part I elaborates on the concepts of conventional and

unconventional corruption. Part II catalog’s Egypt’s history of conventional corruption. Part III

describes Egypt’s recent revolution and transition. Part IV analyzes Egypt’s new constitution

and its expected impact on conventional corruption. Part V explains why Egypt is likely to

experience a rise in unconventional corruption. Part VI details what can be done to combat the

rise in unconventional corruption.

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I. CONVENTIONAL AND UNCONVENTIONAL CORRUPTION

Government corruption is commonly defined as the abuse of public office for private

gain.4 Under this broad definition, corruption exists in different forms. One specific form is

“conventional corruption,” which occurs when government officials illegally abuse public office

for private gain.5 Illegal quid pro quo transactions, including acts of bribery, are examples of

conventional corruption.6 In addition, perhaps the most notorious form of conventional

corruption is the illegal theft of an election.7

Conventional corruption can be further broken down into two basic kinds: grand

corruption and petty corruption.

8 Grand corruption involves theft or misuse of vast amounts of

public resources by government officials.9 This kind of corruption most often originates with

high-level officials who recognize and exploit opportunities that are presented through

government work.10

4 Transparency International, FAQs on Corruption,

http://www.transparency.org/whoweare/organisation/faqs_on_corruption#defineCorruption (defining corruption to generally involve “the abuse of entrusted power for private gain”); Peter J. Henning, Public Corruption: A Comparative Analysis of International Corruption Conventions and United States Law, 18 ARIZ. J. INT’L & COMP. L. 793, 802-03 (2001) (“Professor [Bruce] Gronbeck, a linguist gave a straightforward definition, that ‘the term political corruption’ encompasses those acts whereby private gain is made at public expense.’ Professor [Abraham] Eisenstadt, a historian, offered a similar description, that ‘[p]olitical corruption means that a public official has perverted the office entrusted to his care, that he has broken a public trust for private gain.’”).

Petty corruption, on the other hand, involves isolated transactions by lower-

level administrative bureaucrats who abuse their office by demanding bribes, diverting public

5 M. Patrick Yingling, Conventional and Unconventional Corruption, 51 DUQ. L. REV. 263, 266 (2013). 6 Id. 7 See id. at 273. 8 Id. at 266. 9 Anwar Shah, Tailoring the Fight Against Corruption to Country Circumstances, in PERFORMANCE

ACCOUNTABILITY AND COMBATING CORRUPTION 231 (2007); Mark Jorgensen Farrales, What is Corruption?: A History of Corruption Studies and the Great Definitions Debate 28 (University of California, San Diego Division of Social Sciences, 2005), available at http://ssrn.com/abstract=1739962.

10 See James Thuo Gathii, Corruption and Donor Reforms: Expanding the Promises and Possibilities of the Rule of Law as an Anti-Corruption Strategy in Kenya, 14 CONN. J. INT’L L. 407, 412 (1999); Kimberly Ann Elliott, Corruption as an International Policy Problem: Overview and Recommendations, in CORRUPTION AND THE GLOBAL ECONOMY 175, 178 (Kimberly Ann Elliott ed., 1997), available at http://www.piie.com/publications/chapters_preview/12/10ie2334.pdf.

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funds, or awarding favors in return for personal considerations.11 The individual transactions

that constitute petty corruption may involve very little money, but in the aggregate, can involve a

substantial amount of public resources.12

In contrast to conventional corruption, “unconventional corruption” occurs when elected

officials make decisions without regard for the public interest, but in lieu of an illegal quid pro

quo transaction, in order to achieve re-election to public office.

13 As such, unconventional

corruption is unique to democratic forms of government14 – at least in so far as corrupt

governments can be said to be democracies.15 This form of corruption is undertaken to induce

private individuals and entities to make contributions and expenditures to benefit a re-election

campaign.16 Unconventional corruption is thus accomplished with the purpose of serving a

relatively small group of political funders and spenders, rather than the people.17 This

overlooked form of government corruption, which is most often associated with the legislative

branch, involves a decision-making process that can corrupt a democracy to its core.18

Unconventional corruption is not necessarily illegal; many statutory prohibitions on

corruption, including those in Egypt,

19

11 Gathii, supra note 10, at 412; Elliott, supra note 10, at 178.

are defined so as to merely encompass the activities that

12 Shah, supra note 9, at 231; Farrales, supra note 9, at 28. 13 Yingling, supra note 5, at 267. 14 Id. 15 Juliet Sorensen, Ideals Without Illusions: Corruption and the Future of a Democratic North Africa, 10

NW. U. J. INT’L HUM. RTS. 202, p. 4 (Spring 2012) (“The absence of corruption alone does not engender democracy, but true democracy cannot exist where corruption thrives.”).

16 Yingling, supra note 5, at 264. 17 Id.; LAWRENCE LESSIG, REPUBLIC, LOST 19-20 (2011). 18 Yingling, supra note 5, at 270. 19 See, e.g., Egypt, Law No. 62 of 1975 (Illegal Profit-Making) Al-Jarida Al-Rasmiyya [THE OFFICIAL

GAZETTE], July 7, 1975; Law No. 80 of 2002 (Anti-Money Laundering), as amended by Law No. 78 of 2003, Al-Jarida Al-Rasmiyya [THE OFFICIAL GAZETTE], May 22, 2002; Law No. 58 of 1937 (Egyptian Penal Law), as amended by Law No. 95 of 2003, Al-Jarida Al-Rasmiyya [THE OFFICIAL GAZETTE], August 1973; Transparency International, National Integrity System Study, Egypt 2009, at 146, http://archive.transparency.org/publications/publications/nis_egypt_2009 (“The Penal Code criminalises both active and passive bribery, as well as using public resources for private gain.”).

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constitute conventional corruption.20 As a result, courts and academics sometimes assume that

government power can only be corrupted through illegal activities, such as those involving quid

pro quo transactions.21 Corruption, however, does not require an illegal quid pro quo transaction

in order to impose significant costs on society.22 Indeed, perhaps the most elusive and

counterproductive form of corruption in many transition and developed countries is the

unconventional form, which does not depend on the existence of a quid pro quo.23

The underlying problem of unconventional corruption does not involve secret deals

entered into pre-election; rather, the problem involves incentives that are offered post-election.

24

Similarly, unconventional corruption does not represent an ex-post effect whereby elected

officials take a position on a particular issue because of past contributions and expenditures;

instead, it represents an ex-ante effect whereby incumbent elected officials take a position on a

particular issue in anticipation of future contributions and expenditures.25

20 See, e.g., United States, 18 U.S.C. § 201(b)(2) (“Whoever … being a public official or person selected to

be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for: (A) being influenced in the performance of any official act; (B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or (C) being induced to do or omit to do any act in violation of the official duty of such official or person … shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.”) (emphasis added).

As Daniel Lowenstein

21 See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 909 (2010) (interpreting the U.S. Constitution and finding a government interest in combating only “quid pro quo corruption”); see also Jakob Svensson, Eight Questions about Corruption, 19 THE JOURNAL OF ECONOMIC PERSPECTIVES 19, 20 (Summer 2005) (“A common definition of public corruption is the misuse of public office for private gain. Misuse, of course, typically involves applying a legal standard.”); ROBIN THEOBALD, CORRUPTION, DEVELOPMENT AND UNDERDEVELOPMENT 15 (1990) (“[Corruption is] the illegal use of public office for private gain.”); but see RALPH KETCHUM, FRAMED FOR POSTERITY 58 (1993) (stating that the universally understood meaning of “corruption” is “the opposite of the public good”).

22 Henning, supra note 4, at 794 (“At a fundamental level, the term ‘corruption’ does not denote any particular transgression, and need not even be conduct that would constitute a crime.”).

23 Yingling, supra note 5, at 268. 24 Id.; Samuel Issacharoff, On Political Corruption, in MONEY, POLITICS, AND THE CONSTITUTION, BEYOND

CITIZENS UNITED 124 (2011). 25 Yingling, supra note 5, at 268.

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explains, “Legislators know of past contributions and the possibility of future ones from the

interest groups that are affected.”26

Lawrence Lessig, in Republic, Lost, describes this form of non-quid pro quo corruption as

dependence corruption, due to elected officials’ dependence on campaign contributions and

expenditures in order to be re-elected.

27 As Lessig insightfully observes, elected officials in a

democracy should be dependent upon the people alone, but they can sometimes be distracted by

a competing dependency on money for re-election purposes, which is an improper dependency.28

Elected officials can only feed this improper dependency if they can provide something of value

to their suppliers, who are often wealthy individuals or large private entities – groups that usually

make up a relatively small percentage of a population and sometimes have interests that cannot

legitimately be viewed as those of “the people.”29

Unconventional corruption is not necessarily done by evil souls. Rather, this kind of

corruption is often practiced by good souls who have intentions of serving a democracy with

honor. In order to stay in office and make decisions that benefit the public interest, well-

meaning elected officials often believe that it is necessary, in the short-term, to induce private

parties to make large contributions and expenditures for campaign finance purposes.

30

26 Daniel Hays Lowenstein, On Campaign Finance Reform: The Root of All Evil is Deeply Rooted, 18

HOFSTRA L. REV. 301, 325 (1989) (emphasis added).

Unfortunately, these beliefs repeatedly prove to be unrealistic, and elected officials who

eventually realize this often lack the nerve to reform their democratic institutions. In this

respect, it must be acknowledged that great societal harm does not always stem from individuals

27 LESSIG, supra note 17, at 17. 28 Id. at 19-20; Henning, supra note 4, at 854 (“Corruption in the context of campaign contributions is

qualitatively different from payments to non-elected officials because the cost to the system is not the official’s personal gain – beyond election or retention of office – but the perversion of the representative’s responsibility to advance the common good.”).

29 See Lawrence Lessig on The Tavis Smiley Show online, PBS, http://video.pbs.org/video/2165376972/. 30 Yingling, supra note 5, at 269.

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with evil intentions; sometimes it stems from individuals with good intentions who lack the

courage of their convictions.31

There is a coherent and sensible argument to be made that money in the form of

campaign contributions and expenditures merely buys speech that helps persuade voters to side

with one candidate over another, and that the money does not literally buy an election in a

corrupt manner. The problem of unconventional corruption, however, is not about what the

money does; it is about what has to be done in order to secure the money. The money does not

necessarily contradict democratic principles. What must be done to secure the money, however,

corrupts a democracy to its core.

32

These different forms, conventional and unconventional corruption, are not necessarily

exhaustive of the universe of corruption. However, classification of corruption in these terms

serves a purpose. These forms of corruption are related – when conventional corruption

decreases, there is a correlating increase in unconventional corruption.

33 One aspect of this

relationship concerns the actions of non-governmental parties who seek to influence public

policy. According to a prominent study by Nauro Campos and Francesco Giovannoni involving

3,954 firms in 25 transition economies, lobbying activities (which include campaign

contributions) are an important alternative instrument of influence to bribe offering (which

induces conventional corruption).34

31 Id.; LESSIG, supra note 17, at 7.

Another aspect of this relationship concerns the actions of

government officers. Elected officials in transition countries that have recently implemented

measures to combat conventional corruption are especially susceptible to the influence campaign

contributions and expenditures because they can no longer illegally abuse their office in order to

32 Yingling, supra note 5, at 270; LESSIG, supra note 17, at 161-62. 33 Yingling, supra note 5, at 270-71. 34 Nauro F. Campos and Francesco Giovannoni, Lobbying, Corruption, and Political Influence, 131 PUBLIC

CHOICE 1, 2 (2007).

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steal an election or illegally divert public funds for campaign purposes.35 Therefore, as is argued

below in our country-specific analysis of Egypt,36 once a country effectively reduces

conventional corruption, it must then focus on combating unconventional corruption.37

II. THE HISTORY OF CONVENTIONAL CORRUPTION IN EGYPT

After years of perceived corruption and injustice under British occupation,38 Egypt, in

1919, started a move to independence with Muslims and Christians Copts joining forces to

instigate a popular revolution.39 This uprising ensued in nominal independence for Egypt in

1922, which was followed by the first post-independence constitution in 1923.40 With the

implementation of the constitution, King Fuad agreed to accept a constitutional monarchial

system whereby certain executive powers were held by the government, which was answerable

to a nationally elected parliament,41 composed of both a lower and upper house (majlis al-

sha‘aab and majlis al-shoura).42

Under the constitutional monarchy, Egypt experienced economic development through

advances in industry and infrastructure, as well as through exposure to international markets.

43

35 Yingling, supra note 5, at 271.

However, the benefits of such development were confined to the wealthiest members of Egyptian

36 See infra Parts V & VI. 37 Yingling, supra note 5, at 271. 38 TAREK OSMAN, EGYPT ON THE BRINK, FROM NASSER TO MUBARAK 24-25 (2010); BRUCE K.

RUTHERFORD, EGYPT AFTER MUBARAK: LIBERALISM, ISLAM, AND DEMOCRACY IN THE ARAB WORLD 35 (2008), new introduction edition (2012) (discussing corruption in Egypt under British occupation).

39 Mohamed A. ‘Arafa, Towards a Culture for Accountability: A New Dawn for Egypt, 5 PHOENIX L. REV. 1, 8 (2011); see generally KATHRIN NINA WIEDL, THE ROLE OF THE COPTS IN THE NATIONAL MOVEMENT IN EGYPT UNTIL THE 1919 REVOLUTION (2007) (“During the 1919 revolution, under the slogan ‘Egypt for Egyptians,’ the Copts fought hand in hand with their Muslim brothers for national independence of Egypt from Britain.”).

40 ‘Arafa, supra note 39, at 8; M. Cherif Bassiouni, The Fight for Democracy in Egypt’s Liberation Square: Background Paper, CHI. COUNCIL ON GLOBAL AFF., 1 (Feb. 10, 2011), at http://www.thechicagocouncil.org/UserFiles/File/Events/FY%2011%20Events/02_February_11/EgyptBackgroundPaper110207.pdf.

41 OSMAN, supra note 38, at 25. 42 Bassiouni, supra note 40. For further elaboration on the January Revolution, see Jeremy M. Sharp,

Egypt: The January 25 Revolution and Implications for U.S. Foreign Policy, CONG. RES. SERVICE, 1 (February 11, 2011), http://fpc.state.gov/documents/organization/157112.pdf.

43 OSMAN, supra note 38, at 37.

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society; the country’s middle class was growing at a very slow pace.44 As Egyptians began to

recognize this state of affairs, King Farouk, the son of Fuad and the head of the Egyptian state,

became ensnared in multiple incidents of conventional corruption.45 Specifically, in 1951, he

accepted a bribe in return for dissolving the government.46 In addition, the king’s name was

mentioned in investigations into the illegal procurement of weapons for the Egyptian army

during the 1948 war against Israel.47 The state of the economy and the monarchy’s corrupt

misuses of power led to the Revolution of July 23, 1952, also known as the Free Officers’

Revolution,48 and the eventual abolishment of the constitutional monarchy.49 Although the Free

Officers’ Revolution was a military coup d’état, it was strongly embraced and reinforced by the

people.50

Among the officers of the revolution was Lieutenant Colonel Gamal Abdel Nasser. In

the span of a few years, Nasser was able to sideline the Egypt’s first president, Major General

Mohammad Naguib, dissolve all political parties except for the Arab Socialist Union Party,

51 and

create a new constitutional order defined by a powerful presidency.52

44 Id. at 37, 55; JOHN R. BRADLEY, INSIDE EGYPT, THE ROAD TO REVOLUTION IN THE LAND OF THE

PHARAOHS 54 (2012).

Under Nasser, Egypt’s

Emergency Law was enacted, giving the president the power to circumscribe non-governmental

45 OSMAN, supra note 38, at 38; BRADLEY, supra note 44, at 31. 46 OSMAN, supra note 38, at 38. 47 Id. 48 Bassiouni, supra note 40. 49 Transparency International, National Integrity System Study, Egypt 2009, at 18,

http://archive.transparency.org/publications/publications/nis_egypt_2009. 50 ‘Arafa, supra note 39, at 8; Bassiouni, supra note 40. But see BRADLEY, supra note 44, at 27 (describing

the Free Officers as “hijack[ing] the popular unrest to seize power”). 51 BRADLEY, supra note 44, at 14; Transparency International, supra note 49, at 19. 52 See generally SELMA BOTMAN, EGYPT FROM INDEPENDENCE TO REVOLUTION, 1919-1952 (1991);

OSMAN, supra note 37, at 45.

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political activity.53 The Emergency Law would remain in effect for all but 18 months between

1967 and 2012.54

Anwar Sadat ascended to the presidency after Nasser’s death in 1970.

55 Sadat

immediately backed a new constitution – the 1971 Constitution – in what he promoted as an

effort to restore greater democracy to Egypt.56 Sadat also introduced political reforms by

dismantling the Arab Socialist Union Party and allowing a multiparty system to emerge.57

However, in the later years of Sadat’s presidency, despite the fact that Egyptian law prohibited

acts of bribery and the like,58 there was a glaring increase in conventional corruption, including

an emergence of parasitic links between sections of the public sector and private industry.59 In

addition, vote rigging flourished and referenda typically resulted in 99.96 percent “yes” votes.60

After Sadat’s assassination in 1981, Hosni Mubarak rose to the presidency,

61 and the

National Democratic Party (NDP), which was established by Sadat in 197862 and was the only

party represented in presidential elections until 2005,63

53 Lisa Reynolds Wolfe, “Cold War Legacy: Egypt’s Emergency Law 162 of 1958,” February 1, 2011,

http://www.coldwarstudies.com/2011/02/01/cold-war-legacy-egypts-emergency-law-162-of-1958/.

began its dominance of the political

54 Sarah El Deeb, “Egypt Emergency Law Lapses,” Huffington Post, May 31, 2012, http://www.huffingtonpost.com/2012/05/31/egypt-emergency-law-lapse_n_1559110.html.

55 OSMAN, supra note 38, at 117; James Feuille, Reforming Egypt’s Constitution: Hope for Egyptian Democracy?, 47 TEX INT’L L. J. 237, 241-42 (Fall 2011).

56 Feuille, supra note 55, at 241-42; Charles Robert Davidson, Reform and Repression in Mubarak’s Egypt, 24 FALL FLETCHER F. WORLD AFF. 75, 75 (Fall 2000).

57 Transparency International, supra note 49, at 19-20. 58 See, e.g., Egypt, Law No. 62 of 1975 (Illegal Profit-Making) Al-Jarida Al-Rasmiyya [THE OFFICIAL

GAZETTE], July 7, 1975; Law No. 80 of 2002 (Anti-Money Laundering), as amended by Law No. 78 of 2003, Al-Jarida Al-Rasmiyya [THE OFFICIAL GAZETTE], May 22, 2002; Law No. 58 of 1937 (Egyptian Penal Law), as amended by Law No. 95 of 2003, Al-Jarida Al-Rasmiyya [THE OFFICIAL GAZETTE], August 1973; Transparency International, supra note 49, at 146 (“The Penal Code criminalises both active and passive bribery, as well as using public resources for private gain.”).

59 OSMAN, supra note 38, at 123; BRADLEY, supra note 44, at 45. 60 Feuille, supra note 55, at 242. 61 Id. at 243. 62 OSMAN, supra note 38, at 126. 63 Transparency International, supra note 49, at 20.

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landscape.64 Conventional corruption rose to extraordinary levels during Mubarak’s reign.65

Transparency International reported a marked increase in the wasting of public resources,

embezzlement, bribery, and forgery.66 The parasitic links between the public and private sectors

that emerged under Sadat only intensified under Mubarak.67 A small group of businessmen with

close ties to the president’s son, Gamal Mubarak, gained enormous control over the economy

and began running it pursuant to their personal interests.68 This conventional corruption, and the

fact that its beneficiaries were limited to businessmen with ties to the NDP, created a picture of

wealth fueling power and power buying wealth in Egypt.69

One very problematic aspect of the increase in conventional corruption over the last thirty

years has been the executive’s willingness and ability to steal elections.

70 As just one example,

during the 1995 elections, electoral irregularities were alleged to be widespread.71 The

Independent Commission for Election Review reported that representatives of opposition

candidates were expelled or turned away from polling stations, ballot boxes arrived stuffed with

voting papers, numerous polling stations were ransacked by paid thugs, and several opposition

candidates were prevented from voting while police stood by.72

64 ‘Arafa, supra note 39, at 13; “Inside Story: How Did Egypt Become So Corrupt?,” Al Jazeera,

http://www.aljazeera.com/programmes/insidestory/2011/02/201128111236245847.html; Abdul-Monem Al-Mashat, Political Finance Systems in Egypt, Regulation and Disclosure: The Way Out, at 3 (November 2008), http://www.ifes.org/~/media/Files/Publications/Money%20and%20Politics/Research%20and%20Publications/Reports%20and%20Papers/English/PoliticalFinanceSystems_in_Egypt.pdf (“The [NDP] is built and based on the legacy of the ASU [Arab Socialist Union] including most of its old guard.”).

65 ‘Arafa, supra note 39, at 8; Bassiouni, supra note 40. 66 Transparency supra note 49, at 23-31. 67 BRADLEY, supra note 44, at 46. 68 ALAA AL ASWANY, ON THE STATE OF EGYPT, WHAT MADE THE REVOLUTION INEVITABLE vii (2011);

OSMAN, supra note 37, at 218-19. 69 ‘Arafa, supra note 39, at 13. 70 Feuille, supra note 55, at 243; Ahmed Eldakak, Approaching Rule of Law in Post-Revolution Egypt:

Where We Were, Where We Are, and Where We Should Be, 18 U.C. DAVIS J. INT’L L. & POL’Y 261, 278-79 (Spring 2012); BRADLEY, supra note 44, at 35.

71 Davidson, supra note 56, at 83. 72 Id.

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During Mubarak’s reign and especially since the turn of the century, conventional

corruption has been comprehensively and openly discussed by the media, civil society, and

academic organizations.73 The general public has been fully aware of the costs of conventional

corruption for the country’s political stability along with the threat it poses to economic and

social development.74 Despite such awareness of the negative effects of conventional corruption,

it became a ruling social law and a behavior that governed various aspects of Egyptian life.75

III. THE ARAB SPRING IN EGYPT: A FIGHT AGAINST CONVENTIONAL CORRUPTION

In an extraordinary set of events, popular protests involving Egypt’s upper middle class

youth in Tahrir Square and Egypt’s working poor in the fields and factory floors led to what

many refer to as Egypt’s “Revolution.”76 The date, January 25, 2011, was deliberately chosen to

coincide with Egypt’s National Police Day77 – a day that once commemorated Egyptian

freedom, but evolved to represent the deterioration of Egypt’s corrupt police forces.78

73 Transparency International, supra note 49, at 24; MENA-OECD Business Climate Investment Strategy,

Phase 1 Policy Assessment, Egypt, Anti-Corruption, at 13 (December 2009), http://www.oecd.org/daf/psd/46341460.pdf (“Corruption allegations are frequent in the media and people often speak of the practice as affecting all parts of society.”).

Conventional corruption played a significant role in motivating the Egypt Revolution as well as

74 ‘Arafa, supra note 39, at 9. 75 Id.; BRADLEY, supra note 44, at 164 (“[C]orruption is a disease that has long spread to all of Egypt’s

organs. There is literally no end to it; it reaches precisely from the officer who takes five pounds to overlook a speeding offense all the way to the top.”).

76 Ian Hartshorn, “Labor Unions Under Attack in Morsi’s Egypt,” Muftah, November 30, 2012, http://muftah.org/labor-unions-under-attack-in-morsis-egypt/ (“While western media focused its attention on the Tweeting and Facebooking [by] upper middle class youth in Tahrir Square, much of the 2011 revolution took place in the fields and factory floors among Egypt’s working poor. The Land Center for Human Rights, a leading human rights NGO focused on workers and farmers, described the general strike of Egypt’s industrial and port workers on February 9, 2011, combined with the farmers’ protests, as a ‘knockout punch’ to the Mubarak regime.”).

77 Ozan O. Varol, The Democratic Coup D’Etat, 53 HARV. INT’L L. J. 291, 342 (2012). 78 Ahmed Zaki Osman, “Egypt’s police: from liberators to oppressors,” Egypt Independent, January 24,

2011, http://www.egyptindependent.com/news/egypts-police-liberators-oppressors; “Egypt’s Police Widely Despised, Viewed as ‘Corrupt and Abusive,’” The Huffington Post, February 3, 2011, http://www.huffingtonpost.com/2011/02/03/egypt-police-corrupt_n_818088.html.

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other revolutions in the Middle East throughout the so-called “Arab Spring.”79 In el-Minya, 245

kilometers south of Cairo, Egyptians braved rubber bullets outside of the NDP headquarters to

chant “Corruption caused this country’s destruction!”80

Egypt’s popular uprisings focused on the removal of the corrupt Mubarak regime.

81

Mohamed ElBaradei, former head of the International Atomic Energy Agency and a well-known

opposition leader in Egypt, expressly called for a military coup on his Twitter page.82

Meanwhile, Mubarak called on the military to intervene on his behalf.83 Instead, on February

11, 2011, in what Ozan Varol has termed a “democratic coup d’etat,”84 the military issued a

communiqué declaring that it was intervening to protect the country and “to sponsor the

legitimate demands of the people.”85 Hours after the release of the communiqué, Mubarak’s

Vice President, Omar Suleiman, announced that Mubarak had resigned his post and the Supreme

Council of the Armed Forces (SCAF) had assumed power.86

Mubarak was later convicted on charges of corruption in the Egyptian Criminal Courts

and sentenced to life in prison,

87

79 Anne Applebaum, “Why the Anti-Corruption Movement is the New Human Rights Movement,” Slate,

(Dec. 13, 2012), http://www.slate.com/articles/news_and_politics/foreigners/2012/12/anti_corruption_movement_protests_riots_and_marches_across_the_globe_are.html; RUTHERFORD, supra note 38 at xxxiv (“The scope of this corruption and inequality became one of the triggers of the January 25 uprising.”).

although the verdict has since been rejected and Mubarak could

80 Mona El-Ghobashy, The Praxis of the Egyptian Revolution, in THE JOURNEY TO TAHRIR, REVOLUTION, PROTEST, AND SOCIAL CHANGE IN EGYPT 36 (2012).

81 ‘Arafa, supra note 39, at 13-15; Ursula Lindsey, Revolution and Counterrevolution in the Egyptian Media, in THE JOURNEY TO TAHRIR, REVOLUTION, PROTEST, AND SOCIAL CHANGE IN EGYPT 53-54 (2012).

82 Varol, supra note 77, at 302, 343. 83 Id. at 343. 84 Id. at 345 . 85 Id. at 344. 86 Id. 87 See generally Mohamed ‘Arafa, Mubarak Criminal Liability: Is it a Fair Trial After Revolution or a

Drama Serious? 21 MICHIGAN STATE INT’L L. REV. 2 (Winter 2012); “Egyptian Revolution,” Jurist, June 30, 2012, http://jurist.org/timelines/2012/09/egyptian-revolution.php.

14

now face a different penalty, including death.88 In addition, most of his former corrupt regime

has been sentenced to several years in prison on charges of corruption, embezzlement of public

funds, unjust enrichment, and peddling in influence.89 Notably, Ahmed Nazif, Egypt’s prime

minister under Mubarak from 2004 to 2011, was convicted on corruption charges for illegally

profiting from a license plate agreement with a German business partner and embezzling $10.5

million while in office.90

After assuming power, the SCAF suspended the 1971 Constitution, dissolved the

parliament, and announced that it would govern the country until democratic elections were

held.

91 The SCAF also appointed a committee of legal experts, including a retired justice of the

Court of Cassation,92 to draft amendments to the 1971 Constitution.93 In early March 2011, the

constitutional reform committee unveiled a package of nine amendments to the 1971

Constitution after 10 days of closed meetings.94 The amendments were passed in a national

referendum held just two weeks later on March 19, 2011 with 77 percent support.95

Despite the amendments and the referendum, the SCAF changed course and issued a

“Provisional Constitutional Declaration” on March 30, 2011,

96

88 David D. Kirkpatrick, “Egyptian Court Rejects Verdict Against Mubarak,” New York Times, January 13,

2013, http://www.nytimes.com/2013/01/14/world/middleeast/egyptian-court-grants-hosni-mubarak-a-new-trial.html?_r=0.

displacing the 1971 Constitution

89 See generally ‘Arafa, supra note 87. 90 Rebecca DiLeonardo, “Egypt court sentences former PM to three years for corruption,” Jurist, September

14, 2012, http://jurist.org/paperchase/2012/09/egypt-court-sentences-former-pm-to-three-years-for-corruption.php. 91 ‘Arafa, supra note 39, at 19; Varol, supra note 77, at 347. 92 ‘Arafa, supra note 39, at 19. 93 Tamir Moustafa, “Drafting Egypt’s Constitution: Can a New Legal Framework Revive a Flawed

Transition?,” Brookings Doha Center, March 1, 2012, at 3, http://www.brookings.edu/~/media/research/files/papers/2012/3/12%20egypt%20constitution%20moustafa/new1%20drafting%20egypts%20new%20constitutionenr03.pdf.

94 Jeannie Sowers, Egypt in Transformation, in THE JOURNEY TO TAHRIR, REVOLUTION, PROTEST, AND SOCIAL CHANGE IN EGYPT 8 (2012); Moustafa, supra note 93, at 4.

95 Sowers, supra note 94, at 8; Moustafa, supra note 93, at 4. 96 ‘Arafa, supra note 39, at 20-21; Moustafa, supra note 93.

15

entirely.97 The provisional constitution was intended as a temporary stopgap until Egyptians

elected a parliament, which would appoint a special constituent assembly to write a permanent

constitution.98

Elections for the lower house of the parliament, the People’s Assembly, began in

November 2011 and continued in staggered rounds until January 2012.

99 Nearly all political

parties, except for Mubarak’s NDP, which was dissolved by Egypt’s High Administrative Court

for monopolizing and manipulating elections, were allowed to freely establish themselves and

participate in the post-revolution parliamentary elections.100 Voters who grew up without any

meaningful right to vote patiently waited in line for hours for the chance to engage in

democracy.101 The Muslim Brotherhood’s Freedom and Justice Party emerged as the clear victor

of the elections, obtaining 47% of the seats in the People’s Assembly.102 The elections were

widely viewed as free and fair by independent monitoring organizations.103

On January 23, 2012, the SCAF formally handed legislative power to the newly elected

People’s Assembly.

104 On March 26, 2012, the People’s Assembly appointed the 100 members

of the Constituent Assembly to draft the new constitution.105 Like the People’s Assembly, the

Constituent Assembly was dominated by Islamists.106

97 Max Fisher, “Egypt’s constitutional crisis, explained as a simple timeline,” The Washington Post,

December 6, 2012, http://www.washingtonpost.com/blogs/worldviews/wp/2012/12/06/egypts-constitutional-crisis-explained-as-a-simple-timeline/; Moustafa, supra note 93.

On June 14, 2012, in the midst of Egypt’s

first post-revolution presidential election, the Supreme Constitutional Court of Egypt dissolved

98 Fisher, supra note 97; Moustafa, supra note 93. 99 Varol, supra note 77, at 350. 100 Id. at 305. 101 Id. at 306. 102 Id. at 352; Fisher, supra note 97. 103 Varol, supra note 77, at 350. 104 Id. 105 Fisher, supra note 97. 106 Id.; see also Jill I. Goldenziel, Veiled Political Questions: Islamic Dress, Constitutionalism, and the

Ascendance of the Courts, 61 AM. J. COMP. L. 1, 14 (2013) (noting that the “Islamist” label has generally been applied broadly to any group that fuses Islam and politics, whether supportive of constitutional democracy or violent extremism).

16

the People’s Assembly,107 declaring it to be unconstitutionally constituted because election

officials had impermissibly allowed political parties to compete for seats designated for

independents.108 Not long thereafter, the votes in the presidential election were tallied, and

Mohamed Morsi, the candidate of the Muslim Brotherhood, was sworn in as president on June

30, 2012.109 Morsi attempted to reconvene the People’s Assembly in July 2012, but his effort

was rejected by the Supreme Constitution Court.110

Amidst controversy over the composition of the Constituent Assembly, Morsi pushed for

the completion of the new constitution, which was put to a two-round referendum vote on

December 15th and 22nd and approved by 63.8 percent of voters.

111 Elections for the new lower

house of parliament, the House of Representatives, were originally scheduled for April 2013, but

the High Administrative Court effectively canceled the elections by questioning Morsi’s actions

under the election law and referring the matter to the Supreme Constitutional Court.112 Morsi

recently indicated that the House of Representatives elections should take place in October

2013.113 In the interim, all legislative power has been transferred to the Shura Council, the upper

house of parliament.114

107 “Egyptian Revolution,” Jurist, June 30, 2012, http://jurist.org/timelines/2012/09/egyptian-

revolution.php.

108 Haider Hamoudi, Democracy and the Supreme Constitution Court of Egypt, JURIST – Forum, June 28, 2012, http://jurist.org/forum/2012/06/haider-hamoudi-scc-parliament.php; David D. Kirkpatrick, “Blow to Transition as Court Dissolves Egypt’s Parliament,” The New York Times, June 14, 2012, http://www.nytimes.com/2012/06/15/world/middleeast/new-political-showdown-in-egypt-as-court-invalidates-parliament.html?pagewanted=all&_r=0.

109 “Egyptian Revolution,” Jurist, June 30, 2012, http://jurist.org/timelines/2012/09/egyptian-revolution.php.

110 RUTHERFORD, supra note 38, at xxiii. 111 “Egypt approves disputed draft constitution,” Al Jazeera, December 25, 2012,

http://www.aljazeera.com/news/middleeast/2012/12/201212251825337958.html. 112 David D. Kirkpatrick, “Egypt Court Cancels Parliamentary Elections,” N.Y. Times, March 6, 2013,

http://www.nytimes.com/2013/03/07/world/middleeast/egypt-court-cancels-parliamentary-elections.html. 113 Tom Perry and Yasmine Saleh, “Egypt Could Hold Delayed Election in October – Mursi,” Reuters,

March 27, 2013, http://uk.reuters.com/article/2013/03/27/uk-egypt-election-idUKBRE92Q05220130327. 114 “Egypt approves disputed draft constitution,” Al Jazeera, December 25, 2012,

http://www.aljazeera.com/news/middleeast/2012/12/201212251825337958.html.

17

IV. COMBATING CONVENTIONAL CORRUPTION IN POST-REVOLUTION EGYPT

In seeking solutions for conventional corruption in countries like Egypt, it is common for

politicians and the general public to immediately push for moral reform. However, appealing for

moral reform in isolation from political reform, besides being naïve and unproductive, prevents a

clear understanding of the situation and distracts people from the real reasons for decline.115

Furthermore, specific kinds of political reform can be unhelpful if the proper foundations are not

in place. In this regard, even the best anti-corruption legislation will fail if it is implemented in a

political environment that is not conductive to real scrutiny.116

In order to curb conventional corruption, the people must impose upon their government

a separation of powers, complete with a system of checks and balances.

117 According to

Montesquieu, whose bedrock ideas have been implemented throughout the world: “So that one

cannot abuse power, power must check power by the arrangement of things.”118 When powers

are separated and limited, the government can effectively enact laws prohibiting government

officials from abusing their office, enforce such laws, and impartially determine when the laws

have been violated.119

115 ASWANY, supra note 68, at 184.

Friction in the form of checks must exist between the branches of

116 Chatham House, “Defining and Tackling Corruption,” Middle East and North Africa Programme: Egypt Dialogue Workshop Summary, February 2012, at 8, http://www.chathamhouse.org/sites/default/files/public/Research/Middle%20East/0212egyptsummary_corruption.pdf; Freedom House, “Countries at the Crossroads 2012: Egypt,” http://www.freedomhouse.org/sites/default/files/Egypt%20-%20FINAL.pdf (noting that the Egyptian government of Prime Minister Ahmed Nazif, in power from 2004 until January 2011, initiated numerous laws to limit money laundering, improve auditing standards, and regulate banking transactions, yet Transparency International still ranked Egypt 98 out of 178 countries in 2010).

117 Yingling, supra note 5, at 271. 118 MONTESQUIEU, THE SPIRIT OF LAWS 155 (Anne M. Cohler, Basia C. Miller & Harold S. Stone eds. and

trans., Cambridge University Press 1989) (1748). 119 Yingling, supra note 5, at 271; Chatham House, supra note 116, at 8.

18

government in order for the political environment to be open to real scrutiny. This is especially

true with regard to restraints on the executive.120

Real checks and balances were not totally absent in pre-revolution Egypt. For example,

the 1971 Constitution gave the Supreme Constitutional Court the exclusive authority to

determine the constitutionality of laws enacted by the other two branches.

121 The 1971

Constitution also guaranteed the independence of the judiciary,122 along with tenure of office,123

so that judges would be protected from the whims of the executive. The 1971 Constitution,

however, also allowed the president to appoint judges without regard for qualifications and

without the consent of the legislature.124 Still, the judiciary was perceived as one of the least

corrupt public authorities in Egypt.125 In practice, the heads of the Court of Cassation, the High

Administrative Court, and the Supreme Constitutional Court often declared electoral laws and

other legislative procedures to be unconstitutional, thus indicating that a significant degree of

independence was enjoyed by the judiciary.126

The 1971 Constitution also contained several mechanisms that sought to hold the

executive accountable in front of the legislature. For example, the former lower house of

parliament, the People’s Assembly, could withdraw its confidence from any of the prime

minister’s deputies or from the other ministers through a motion by one-tenth of its members,

120 Yingling, supra note 5, at 272; Freedom House, supra note 116 (“As with other aspects of democratic

governance, meaningful improvements on corruption and transparency will require a decisive break from the model of an all-powerful, unaccountable executive.”).

121 ABROGATED EGYPT CONSTITUTION OF 1971, Art. 175. 122 Id. at Arts. 65, 165, 166, & 174. 123 Id. at Arts. 168 & 177. 124 Transparency International, supra note 49, at 81. 125 BRADLEY, supra note 44, at 21 (“[T]he judiciary has often proved to be a thorn in the regime’s side.”);

Transparency International, supra note 49, at 11. 126 Id. at 81; RUTHERFORD, supra note 38, at 50 (writing about the pre-Revolution judiciary in Egypt and

stating that “[a]t the highest levels, the executive branch exert[ed] some influence over appointments but d[id] not dominate them”).

19

followed by a majority vote of the entire assembly.127 The People’s Assembly was also entitled

to form committees for the purpose of fact finding and conducting investigations into the

activities of executive and administrative bodies.128

Unfortunately, unlike the judiciary’s mechanisms, the legislative mechanisms were rarely

exercised in full.

129 There was a wide gap between de jure and de facto accountability in

Egypt,130 especially with regard to the legislature’s checks on the executive. Opposition parties

in the People’s Assembly struggled to play an effective role in combating conventional

corruption.131 This was primarily due to the restrictions on their activities imposed by the

Emergency Law,132 which permitted, among other things, arbitrary arrests and searches,

indefinite detention without trial, heightened censorship, and restraints on the gathering of more

than five people at any one time,133 thus giving Egyptian authorities and the NDP the ability to

circumvent many of the legal and political checks provided in the constitution.134 As a result of

the Emergency Law, the NDP constituted an overwhelming majority in parliament, giving the

party the ability to drown out even the loudest voices in debates over legislation, while

parliamentary rules (enacted by the NDP) prevented opposition parliamentarians from blocking

government policies.135

With the revolution, Egypt gained a rare opportunity to repair the fundamentals of its

system of governance and combat conventional corruption. Many Egyptians had high hopes for

a new constitution. For some, these high hopes turned to disappointment when the Constituent

127 ABROGATED EGYPT CONSTITUTION OF 1971, Art. 126. 128 Id. at Art. 131. 129 Transparency International, supra note 49, at 11. 130 Id. at 13. 131 Id. at 27. 132 Id. at 11-12. 133 Varol, supra note 77, at 341-42; El-Ghobashy, supra note 80, at 127. 134 BRADLEY, supra note 44, at 56; Moustafa, supra note 93, at 9. 135 El-Ghobashy, supra note 80, at 147.

20

Assembly released the final draft of the 2012 Constitution.136 Although the 2012 Constitution

includes a questionable deference to religion in state affairs137 and less reform on individual

rights than many had hoped for, the reality is that, when measured against the Egyptian

constitutional tradition, the new text brings a number of improvements to the system of

government and is not the catastrophe that many have identified.138

First, the 2012 Constitution maintains the positive aspects of the 1971 Constitution.

Judicial independence and security of tenure for judges is protected.

139 Also, the Supreme

Constitutional Court is still exclusively competent to review the constitutionality of laws, giving

it the ability to check the other branches.140 And, with regard to the legislature, individual

members have the right to request information, demand a statement from the government, or

even interrogate the prime minister in relation to urgent matters of public importance.141

The 2012 Constitution also imposes new limits on the executive. For example, while the

president previously served a six-year term without term limits,

142 the president shall now be

elected every four years and may only be re-elected once.143 In addition, whereas the president

previously faced little obstacle in dissolving the parliament,144

136 David D. Kirkpatrick, “Egyptian Islamists Approve Draft Constitution Despite Objections,” The New

York Times, November 29, 2012, http://www.nytimes.com/2012/11/30/world/middleeast/panel-drafting-egypts-constitution-prepares-quick-vote.html.

he may now only do so pursuant

137 EGYPT CONSTITUTION OF 2012, Arts. 2, 4, & 219; “The Battle for Egypt’s Constitution,” Project on Middle East Political Science, at 4, January 11, 2013, http://pomeps.org/wp-content/uploads/2013/01/POMEPS_BriefBooklet17_Egypt_web.pdf.

138 Zaid Al-Ali, “The new Egyptian constitution: an initial assessment of its merits and flaws,” Open Democracy, December 26, 2012, http://www.opendemocracy.net/zaid-al-ali/new-egyptian-constitution-initial-assessment-of-its-merits-and-flaws; Shadi Hamid, “Is There an Egyptian Nation?” in “The Battle for Egypt’s Constitution,” Project on Middle East Political Science, at 25, January 11, 2013, http://pomeps.org/wp-content/uploads/2013/01/POMEPS_BriefBooklet17_Egypt_web.pdf.

139 EGYPT CONSTITUTION OF 2012, Arts. 168 & 170. 140 Id. at Art. 175. 141 Id. at Arts. 123-25. 142 ABROGATED EGYPT CONSTITUTION OF 1971, Art. 77. 143 EGYPT CONSTITUTION OF 2012, Art. 133 144 El-Ghobashy, supra note 80, at 143.

21

to a public referendum.145 And if the president is unsuccessful in the referendum, then he must

resign.146 Furthermore, and maybe most importantly, the constitution imposes stronger

restrictions on the president’s power to call a state of emergency and on the powers that the

president can exercise during the emergency period.147

The 2012 Constitution also imposes new legislative checks on the executive. The

parliament is now empowered to dismiss the government, the prime minister, or any individual

minister by a simple majority of its members.

148 In contrast, under the 1971 Constitution, the

parliament could only dismiss the government after obtaining the president’s approval or a two-

thirds majority vote.149 In addition, the new constitution puts forth a method for the House of

Representatives, the new lower house of parliament, to impeach the president by a two-thirds

majority, after which the president shall be tried before a special court composed of heads of the

judiciary.150 Also, the Shura Council, the upper house of parliament, now has the power to

approve or reject the president’s appointed heads of independent bodies and regulatory

agencies.151

145 EGYPT CONSTITUTION OF 2012, Art. 127.

146 Id. at Art. 127; see also Holger Albrecht, “Unbalancing power in Egypt’s constitution,” Foreign Policy, January 31, 2013, http://mideast.foreignpolicy.com/posts/2013/01/31/unbalancing_power_in_egypt_s_constitution (“Article 127 is an interesting attempt to balance power relations between the president and parliament. It allows the president to move to dissolve parliament through a popular vote, a provision that might come as a necessary step to solve a deadlock between the two institutions. Yet, an important clause has been introduced in order to impede the article’s abuse: losing the popular referendum triggers the automatic resignation of the president.”).

147 Id. at Art. 148; Mirette F. Mabrouk, The View From a Distance: Egypt’s Contentious New Constitution, at 5, Brookings Institute (January 31, 2013), http://www.brookings.edu/~/media/Research/Files/Papers/2013/1/31%20egypt%20mabrouk/0131_Egypt_Mabrouk.pdf (“There have been improvements in regards to executive power and the president is no longer all-powerful. He gets only two four-year terms. More importantly, the president’s authority to declare a state of emergency has been hobbled; it has to be approved by a majority of both houses.”).

148 Id. at Art. 126. 149 ABROGATED EGYPT CONSTITUTION OF 1971, Art. 127. 150 EGYPT CONSTITUTION OF 2012, Art. 151. 151 Id. at Art. 202.

22

Moreover, the new constitution provides for increased transparency in government by

guaranteeing a right to information, data, documents, and statistics152 and requiring members of

parliament to provide annual financial disclosures.153 The new constitution also establishes a

National Anti-Corruption Commission to deal with conflicts of interest, standards of integrity,

and transparency in government.154

Although the 2012 Constitution is an improvement with regard to checks and balances

for purposes of limiting conventional corruption, it is by no means perfect. For example, the

president has the power to appoint one-tenth of the members of the Shura Council,

155 which

gives him an unjust and undeserved amount of leverage over the legislative process.156

However, this is still an improvement upon the 1971 Constitution, which allowed for the

president to appoint one-third of the members of the Shura Council.157 In addition, the new

constitution provides no legislative check on the president’s power to appoint judges at the

highest levels. The new constitution also fails to provide any information on how judicial

salaries are to be determined.158

Thus, although the new constitution is imperfect, and the transition has been chaotic,

there is hope for a future Egypt with less conventional corruption. Suffice it to say that if Egypt

is able to hold free and fair parliamentary elections in 2013 and emerge with a party in power

facing unprecedented levels of scrutiny due to a newly relevant political opposition and a

152 Id. at Art. 47. 153 Id. at Art. 88. 154 Id. at Art. 204 155 Id. at Art. 128. 156 Al-Ali, supra note 138; see also Mabrouk, supra note 147, at 5 (“[T]he president still has the right to

appoint the prime minister, the country’s governors and a tenth of the Shura Council, giving himself unfair advantage in legislation.”).

157 ABROGATED EGYPT CONSTITUTION OF 1971, Art. 196. 158 Al-Ali, supra note 138.

23

constitution that limits powers of the presidency, 159

then levels of conventional corruption are

likely to fall.

V. THE LIKELY RISE OF UNCONVENTIONAL CORRUPTION IN EGYPT

Unfortunately, measures aimed at combating conventional corruption do not also solve

problems of unconventional corruption.160 In fact, when conventional corruption declines, a rise

in unconventional corruption is usually on the horizon.161

Egypt is currently very susceptible to a rise in unconventional corruption. There are three

primary reasons for this. First, private parties are more likely than ever to induce unconventional

corruption. One aspect of this first reason is that reformers in Egypt are focused on

implementing measures to reduce conventional corruption, and if Egypt is successful, private

parties who are accustomed to getting their way through acts of bribery will be forced to seek

alternative means. According to a prominent study by Nauro Campos and Francesco Giovannoni

involving nearly 4,000 firms in 25 transition economies, lobbying activities (which include

campaign contributions) are an important alternative instrument of influence to bribe offering

Unconventional corruption, in this

regard, is an unfortunate side effect of necessary reforms to combat conventional corruption.

Although the occurrence of unconventional corruption is an indicator of progress,

unconventional corruption is not a necessary evil for a democracy that has recently implemented

measures to combat conventional corruption. As will be shown below, there are solutions that

can, and should, be implemented to combat unconventional corruption.

159 Marc Lynch, “Reflections on Egypt’s Latest Crisis,” in “The Battle for Egypt’s Constitution,” Project on

Middle East Political Science, at 45, January 11, 2013, http://pomeps.org/wp-content/uploads/2013/01/POMEPS_BriefBooklet17_Egypt_web.pdf.

160 Yingling, supra note 5, at 275. 161 Id. at 270-71.

24

(which induces conventional corruption).162 Another aspect of this first reason is the recent

change in government personnel. Many of the businessmen friends of Gamal Mubarak, who

once had complete control over the economy,163

Second, incumbent elected officials in Egypt are likely to become dependent on

campaign contributions and expenditures in order to be re-elected. While a ruling party

incumbent of the past may have been able to rely on the ultimate act of conventional corruption –

stealing an election – to stay in power, incumbents will now be required to communicate with

their constituencies to keep their support, and this costs money.

are now on the outside looking in. These

individuals may soon find it necessary to utilize campaign contributions and expenditures in

order to wield the kind of influence that they brandished under Mubarak.

164

To elaborate on this last point, in the past, the state-run media dominated the landscape

and the ruling regime was able to use the media in a way that made it unnecessary for

incumbents to seek contributions and expenditures from outside parties in order to run

comprehensive campaigns.

Furthermore, and maybe most

importantly, due to the events of the last few years, incumbent elected officials can no longer

safely forgo actual campaigns with the expectation that the state-run media will dominate the

landscape and communicate the incumbent’s re-election message to the public.

165

162 Campos and Giovannoni, supra note 34, at 2.

The NDP mobilized the Egyptian media to serve its own interests

163 ASWANY, supra note 68, at vii. 164 See Ahmed Feteha, “The best democracy money can buy: Funding Egypt’s presidential campaigns,”

Ahram Online, March 31, 2012, http://english.ahram.org.eg/NewsContent/3/12/38063/Business/Economy/The-best-democracy-money-can-buy-Funding-Egypts-pr.aspx (“According to [Professor] Abdel Aziz, campaign activities fall into two categories: promotion in the mass media, and round-level activities including popular conferences and drives to provinces. Though the latter is relatively inexpensive, both require large amounts of funding.”).

165 Sharif Abdel Kouddous, “After Mubarak: Fighting For Press Freedom in Egypt,” The Nation, June 20, 2011, http://www.thenation.com/article/161555/after-mubarak-fighting-press-freedom-egypt (“Under Mubarak, state-owned media was a propaganda arm of the government, parroting party dogma while dismissing public criticism and political opposition”); Abdul-Monem Al Mashat, Political Finance Systems in Egypt, Regulation and Disclosure: The Way Out, at 11 (November 2008) (“The Egyptian government, which inherited a vast state apparatus, has been in total control of state resources, mass media outlets and legal channels for political participation. This diminishes any possibility for real and substantial competition.”).

25

by promoting party policies and exaggerating achievements, all while excluding coverage of

other parties.166 As recently as the 2010 parliamentary elections, the state-run media showed a

marked interest in giving positive coverage to state figures.167 The Cairo Institute for Human

Rights Studies found that, without exception, all the state-owned newspapers exhibited a clear

pro-NDP bias in their election coverage.168 The state television channels were also quite biased.

For example, on Channel 2, in the lead up to the election, the NDP received 56.6% of the

coverage (71% positive and 1% negative). Notably, the Muslim Brotherhood received only 10%

of the coverage (2% positive and 92% negative).169

However, this situation has changed, and will continue to change, because contemporary

digital technology has destroyed much of the government’s capacity to monopolize the means of

broadcast communication.

170 Technology, besides facilitating the rise of web-based blogs and

social media, has been an impetus for private and independent news journalism.171 Even under

Mubarak and the NDP, state organs like Al-Ahram and Nile TV were already losing ground to

private upstarts like Al-Masry Al-Youm and Al-Shorouk.172 The private media has managed to

gain a firm foothold on the Egyptian media landscape, and although it has not been completely

immune from government influence or eliminated the bias, partiality, and prejudice that

characterizes the state media,173 it has reduced it in significant ways.174

166 CAIRO INSTITUTE FOR HUMAN RIGHTS STUDIES (CIHRS), Media and Parliamentary Elections in Egypt:

Evaluation of Media Performance in Parliamentary Elections, Oct. 28/Dec. 15, 2010, at 76; Eldakak, supra note 70, at 288-93.

167 CIHRS, supra note 166, at 9. 168 Id. at 39. 169 Id. at 70. 170 See generally KAYLAN, GEIGER & FASRI, THE RED LINE: PRESS FREEDOM IN THE POST-MUBARAK

EGYPT (2012). 171 JEFFREY C. ALEXANDER, PERFORMATIVE REVOLUTION IN EGYPT, AN ESSAY IN CULTURAL POWER 69

(2011); Eldakak, supra note 71, at 289 (noting that the state-run media’s lack of credibility also gave rise to the development of privately owned independent media over the last decade).

172 ASHRAF KHALIL, LIBERATION SQUARE: INSIDE THE EGYPTIAN REVOLUTION AND THE REBIRTH OF A NATION 290 (2012).

173 Eldakak, supra note 70, at 289-90.

26

Multiple satellite channels have steadily chipped away at the influence of state television

in recent years.175 Al-Jazeera, which began broadcasting in 1996, is the most popular source for

news in the greater Arab region.176 During the 2011 uprising, more Egyptians received their

news from the Qatar-based channel than from any other news source.177 Al-Jazeera journalists

deployed the moral binaries of civil discourse to emotionalize the revolution’s protagonists and

stigmatize its enemies, presenting themselves as both professionally independent and deeply

democratic.178

The counter-point could be made that private media will be ultimately ineffective in

limiting the dominance and bias of the state-run media because the Morsi administration, like the

Mubarak regime before it,

With the growth of private media, including well-known satellite channels,

incumbent elected officials can no longer rely on the dominance and bias of state-run media to

communicate their messages in lieu of actual campaigns – actual campaigns that cost money.

179 has already shown its willingness to censor and pressure

journalists.180

174 KHALIL, supra note 172, at 290; CIHRS, supra note 166, at 9; Transparency International, supra note

49, at 21-22.

The government has already suspended a satellite television channel that featured

a program whose host was critical of Morsi, and confiscated copies of a daily newspaper that

175 Adel Iskandar, “Free at Last? Charting Egypt’s Media Post-Mubarak,” Jadaliyya, December 19, 2011, http://www.jadaliyya.com/pages/index/3641/free-at-last-charting-egypts-media-post-mubarak; RUTHERFORD, supra note 38, at 26.

176 ALEXANDER, supra note 171, at xiii. 177 JAMES L. GELVIN, THE ARAB UPRISINGS, WHAT EVERYONE NEEDS TO KNOW 3 (2012). 178 ALEXANDER, supra note 171, at 68, 75; Charlie Smith, “Al-Jazeera Played a Major Role in the Egyptian

Revolution and the Downfall of Mubarak,” February 11, 2011, http://www.straight.com/blogra/al-jazeera-played-major-role-egyptian-revolution-and-downfall-mubarak.

179 Eldakak, supra note 70, at 288-93. 180 Yasmine Saleh, “Egypt’s Mursi Accused of Stifling Dissent in Media Crackdown,” Reuters, Aug. 17,

2012, http://www.reuters.com/article/2012/08/17/us-egypt-media-idUSBRE87G0XQ20120817 (“A media crackdown in the first month of Mohamed Mursi’s rule has raised fears Egypt’s Islamist president is moving to stifle criticism of the Muslim Brotherhood.”); Kareem Fahim and Mayy El Sheikh, “Egypt’s Islamist Leaders Accused of Stifling Media,” The New York Times, August 15, 2012, http://www.nytimes.com/2012/08/16/world/middleeast/egypts-islamists-accused-of-limiting-press-freedom.html?pagewanted=all.

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exhibited similar criticism.181 As a result, many editors have seemingly played it safe and

tampered down criticism of Egypt’s new rulers.182

However, if such efforts continue, the new government is likely to find itself in

dangerous territory. For years, Mubarak and the NDP were able to intimidate and censor

journalists without a blowback. Then, in late 2010, when the regime sought to achieve its

election objectives by stifling the media, the people responded with a “day of rage” that led to a

revolution.

183

Regardless, even if the government attempts to censor private media, the state-run media

is not sustainable in its current form. There are cracks emerging in the once rigid walls of the

state-run media.

Times have changed in Egypt; even a truly popularly elected government cannot

engage in such tactics without a great deal of risk.

184 This is due to pure economic inertia. As noted by Ashraf Khalil, the state

media machine, like most public sector enterprises in Egypt, is considerably overstaffed and

stocked with thousands of phantom employees drawing a paycheck for barely working.185 The

combination of declining readership and viewers, along with the immense economic drain

associated with supporting the propaganda machine, will eventually cause the state-run media to

change its ways.186 Thus, incumbent elected officials will no longer be able to safely forgo

actual campaigns with the expectation that the state-run media will dominate the landscape and

communicate the incumbent’s re-election message to the public.187

181 Fahim and El Sheikh, supra note 180 (“Several recent moves by government authorities against

Egyptian journalists have drawn sharp criticism from the news media and led to accusations that the country’s new Islamist president is willing to tolerate — if not employ — the same heavy-handed tactics used by former President Hosni Mubarak to stifle dissent”).

182 Id. 183 CIHRS, supra note 166, at 13; Eldakak, supra note 70, at 293; El-Ghobashy, supra note 80, at 26. 184 Iskandar, supra note 175. 185 KHALIL, supra note 172, at 295; Iskandar, supra note 175. 186 KHALIL, supra note 172, at 295. 187 Id.

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Finally, Egypt is currently very susceptible to a rise in unconventional corruption because

the country lacks a comprehensive institutional framework for campaign financing. The most

problematic aspect of this is that Egypt’s regulatory provisions regarding campaign finance do

not include any disclosure requirements for parties or candidates – there is no transparency.188

Egypt’s current campaign finance rules for parliamentary elections can be found in Law 38 of

1972.189 Besides lacking disclosure requirements, Law 38 also lacks any regulation of domestic

campaign contributions and independent expenditures by private parties.190 Instead, Article 11

of Law 38 regulates the expenditures of the candidates themselves; candidates must comply with

a specific ceiling for expenditures that is set for each election.191

In essence, under the current

framework, domestic private parties are permitted to contribute and spend unlimited amounts of

money to benefit election campaigns, and in turn, induce incumbent elected officials into acts of

unconventional corruption, against the public interest, without any way for the public to gauge

the incumbent elected official’s susceptibility to such corruption.

VI. COMBATING A RISE IN UNCONVENTIONAL CORRUPTION IN POST-REVOLUTION EGYPT

Unconventional corruption is not a necessary evil for a growing democracy that has

recently implemented measures to combat conventional corruption. The solution, however, is

188 The Carter Center, Preliminary Report on All Three Phases of the People’s Assembly Elections, January

24, 2012, http://cartercenter.org/resources/pdfs/news/peace_publications/election_reports/Egypt-Peoples-Assembly-Elections.pdf. It is still unclear whether Article 47 of the 2012 Constitution will be used to require candidates to make campaign finance disclosures. Article 47 states that “[a]ccess to information, data, documents and statistics, and the disclosure and circulation thereof, is a right guaranteed by the state, in a manner that does not violate the sanctity of private life or the rights of others, and that does not conflict with national security. The law regulates the rules for filing and archiving public documents, the means of access to information, the means of complaint when access is refused, and the consequent accountability.” See Nariman Youssef, “Egypt’s draft constitution translated,” Egypt Independent, December 2, 2012, http://www.egyptindependent.com/news/egypt-s-draft-constitution-translated.

189 Article 11, Law No. 38/1972, ON THE PEOPLE’S ASSEMBLY, amended as per Laws Nos. 23/1979 and 175/2005, (unofficial English translation prepared by Democratic Reporting International (“DRI”)).

190 Id.; Hoda Youssef, “Is Egypt’s Presidential Election for Sale?” Atlantic Council, May 18, 2012, http://www.acus.org/egyptsource/egypts-presidential-election-sale.

191 Article 11, Law No. 38/1972, ON THE PEOPLE’S ASSEMBLY, amended as per Laws Nos. 23/1979 and 175/2005, (unofficial English translation prepared by Democratic Reporting International (“DRI”)).

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not to prohibit unconventional corruption with positive laws. Because unconventional corruption

does not involve a coordinated quid pro quo transaction, it is rather difficult to prove in any

particular circumstance. Furthermore, laws prohibiting acts of unconventional corruption could

give executive branch prosecutors the means to bring trumped up charges against political

adversaries based on a subjective view of what is, and what is not, in the public interest. Instead,

a more appropriate method of combating unconventional corruption is to provide transparency

and limit the incentives for unconventional corruption, i.e., to limit the amounts of contributions

and expenditures that private parties can make to benefit an election campaign.

The first step towards combating unconventional corruption is to establish rules that

require elected officials to disclose the source of their campaign contributions.192 Effective

disclosure rules require candidates to report their contributions in detail. They also require

campaign reports to be provided to the public in a timely manner.193 With such rules, the voting

public gains necessary access to information that may be indicative of an elected official’s

tendencies to act against the public interest.194 Transparency has a curative effect on the process

of campaign funding that diminishes the incentive for unconventional corruption.195

192 PAUL COLLIER, THE BOTTOM BILLION, WHY THE POOREST COUNTRIES ARE FAILING AND WHAT CAN BE

DONE ABOUT IT 149 (2007) (“Probably parliaments should also set some ceilings on contributions, and require some transparency in party finances. This is not a very ambitious agenda, but it would at least get the issue of campaign finance started.”).

In this

regard, Article 7(3) of the United Nations Convention Against Corruption, which Egypt ratified

in 2005, states that each party shall “consider taking appropriate legislative and administrative

193 Yingling, supra note 5, at 275; USAID, OFFICE OF DEMOCRACY AND GOVERNANCE, Money in Politics Handbook: A Guide to Increasing Transparency in Emerging Democracies, at 15, Nov. 2003, http://transition.usaid.gov/our_work/democracy_and_governance/publications/pdfs/pnacr223.pdf.

194 Yingling, supra note 5, at 275; Varol, supra note 77, at 311 (“If voters can observe the politicians’ actions and have sufficient information about the reasons behind those actions, they can more effectively reward or punish behavior.”); Anthony Johnstone, A Madisonian Case for Disclosure, 19 GEO. MASON L. REV. 413, 437 (2012).

195 Henning, supra note 4, at 843.

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measures . . . to enhance transparency in the funding of candidatures for elected public office

and, where applicable, the funding of political parties.”196

Parties and candidates in Egypt should be required to fully, accurately, and periodically

disclose contributions received by their campaigns.

197 Reports on contributions should not be

limited to the eyes of a governmental oversight body; they should be made available to the

general public.198 Disclosure measures should provide answers to questions like: Who gives

money?; To whom is it allocated?; and, For what purpose and in exchange for what?199

Disclosure rules, however, although necessary, are not sufficient for eliminating

unconventional corruption. As has been described by Marcos Chamon and Ethan Kaplan, the

influence of campaign contributions may be independent of any actual amounts spent because

the influence could also depend on the credible threat of contributions or expenditures to benefit

the elected official’s opponent.

Such

measures must be comprehensive enough to actually make elected officials think twice before

heading down the alluring road of unconventional corruption.

200

196 United Nations Convention Against Corruption, Art. 7(3),

http://www.unodc.org/documents/treaties/UNCAC/Publications/Convention/08-50026_E.pdf.

For example, imagine that a wealthy business owner

announced that he or she intended to spend vast sums of money to defeat any elected official

who supported workers’ rights legislation. If an elected official learned of the business owner’s

intent, and decided to change his or her position in regard to workers’ rights, there would be little

doubt that such change was the result of the business owner’s threat. Disclosure rules, however,

would not be able to quantify the business owner’s influence or the elected official’s

197 The Carter Center, supra note 188. 198 Yingling, supra note 5, at 318 (describing the problematic aspects of a proposed Kenyan campaign

finance law that did not make reports available to the public). 199 Hoda Youssef, supra note 190. 200 LESSIG, supra note 17, at 258 (citing Marcos Chamon and Ethan Kaplan, The Iceberg Theory of

Campaign Contributions 2-5 (April 2007) (on file with the University of Stockholm), available at http://people.su.se/~ekapl/jmp_final.pdf).

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unconventional corruption.201 Notably, it is this regard that the United States has experienced a

great deal of unconventional corruption, despite its well-established disclosure requirements for

campaign contributions.202

In order to effectively combat unconventional corruption, campaign contributions and

independent campaign expenditures must be limited in their amounts. Problems with

unconventional corruption arise when there are only a few large contributors or spenders, not

when there are many contributors or spenders who may be substantial but not critical.

203 This is

not to say that contributions and expenditures should be eliminated. In fact, it is critical that they

not be totally prohibited, otherwise candidates for public office who are not independently

wealthy would lack the ability to communicate their messages to their constituencies.204

In a similar regard, while limits on independent campaign expenditures are necessary to

combat unconventional corruption, limits on candidate expenditures (as is the case currently in

Egypt) can be detrimental to the system. Poorly calculated limits on candidate expenditures

could have unintended negative consequences.

205 Specifically, if the limits are too low, a

candidate may be rendered unable to effectively communicate with a constituency.206 In general,

campaign finance laws should seek to achieve a balance between allowing candidates to use

sufficient funds to reach the electorate with their messages and, at the same time, ensuring

fairness and accountability to the people, as opposed to the political funders and spenders.207

It is also important to note that disclosure rules, along with limits on contributions and

independent expenditures, can only be effective in combating unconventional corruption if there

201 Yingling, supra note 5, at 275-76. 202 Id. at 282-302 203 Issacharoff, supra note 24, at 133. 204 Yingling, supra note 5, at 276. 205 The Carter Center, supra note 188. 206 Yingling, supra note 5, at 318-19. 207 Yingling, supra note 5, at 275-77; Hoda Youssef, supra note 190.

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is effective enforcement of such rules and limits.208 Common violations include disguising

income in order to overspend and conduct underground campaigns.209 Illegal spending by

wealthy individuals on behalf of parties has been reported in Egypt, even in the relatively free

and fair post-revolution elections.210 Additionally, there have been reports that some candidates

have received funding from charities that in turn have received foreign funding, in contravention

of Egypt’s current campaign finance laws.211 The Supreme Judicial Commission for Elections

currently lacks both the authority and the capacity to investigate alleged violations.212

Specifically, Egypt’s lawmakers should invest in election officials, or other law enforcement

officials, with clear authority to investigate and prosecute allegations of campaign finance

violations.213

With proper enforcement of disclosure rules and limits on contributions and

independent expenditures, Egypt can effectively preempt a rise in unconventional corruption.

CONCLUSION The January 25, 2011 Revolution was fueled by a desire to limit conventional corruption

– illegal activity that has long existed in Egypt. The country’s transition, although chaotic, has

thus far produced a democratically elected president and a democratically ratified constitution.

The new constitution, although imperfect, provides for greater restraints on power with regard to

the different branches of government, especially the executive. As a result, with time, Egypt is

likely to realize a goal of the revolution and experience a drop in conventional corruption.

However, when conventional corruption is on the decline, unconventional corruption is likely on

the rise. Fortunately, unconventional corruption is not an inevitable side effect of progress – it

208 The Carter Center, supra note 188; Hoda Youssef, supra note 190. 209 Hoda Youssef, supra note 190. 210 The Carter Center, supra note 188. 211 Id. 212 Id. 213 Id.

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can be contained. With a certain bit of insight and courage, the people of Egypt can reform their

campaign finance system and bring forth a true democracy – one where elected officials make

decisions not for the benefit of funders and spenders, but rather, one where elected officials make

decisions for the benefit of the people.