May 11, 2013
Egypt’s elected Islamists have locked horns in a struggle with
the judiciary that veers between full confrontation and guarded accommodation.
Islamists’ concerns about the judiciary are not unfounded, but as the dominant
political actors in the country today, the choice between confrontation and
accommodation is largely theirs to make. Both they and various judges have used
whatever tools are at their disposal in the struggle, yet if they continue to
deploy them as recklessly as they have over the past few months, the country’s
troubled democratic transition will end up being the biggest loser.
Apparently calculating that much of the civilian opposition is
either implacable or irrelevant, the presidency in particular has focused its
political energies on translating its electoral victories into a more solid
position within the state apparatus. Currently, President Mohammed Morsi
appears to have reached a viable modus vivendi with the military and a shakier
one with the various parts of the internal security apparatus. But rather than
do the same with the judiciary, Morsi and his allies may be calculating that
the judges are obstacles to be overcome through executive action and legislation—and
a certain measure of intimidation.
The most audacious move in that regard—last November’s
constitutional declaration—hardened positions on all sides. Within the ranks of
the judiciary, what had been a range of feelings about the Islamist rise—from
active opposition through foreboding, all the way to accommodation—turned into
a sense of mortal combat. For many judges it was less the ideology of the
Islamists than it was their behavior that caused bitterness. In remolding
Egypt’s legal and constitutional framework, the newly elected leadership seemed
not simply to recreate Mubarak’s corrupt (though less rigid) authoritarianism,
but instead revert to Nasser’s more regimented (and far less legalistic)
system.
The two most significant areas of combat still contain routes of
compromise and accommodation, though neither side has yet burned the bridges
leading toward those routes. The first and most public of these battles
concerns a new law for judicial organization—the basic piece of legislation that
guarantees (or vitiates) judicial independence. Ironically, the effort to draft
a new one dates back almost a decade—with some even earlier antecedents—led by
reformist judges who sought to remove the last vestiges of the authoritarian
tools and executive encroachments built up largely during the Nasserist era. In
the months after the 2011 uprising, reformist judges saw the time as opportune
for reviving those efforts, but
their attempts went into hibernation when the lower house of the parliament was
dissolved last year.
But when the Islamist-dominated upper house of parliament
suddenly took up the project in April 2013, judges understandably reacted with
alarm, as they soon discovered how Orwellian the claim of championing the
independence of the judiciary had become: the law would have forced most senior
judges to retire—thus purging the judiciary in the guise of prying it out from
under the domination of older figures. Judicial positions are often
concentrated among a small number of families—as are other professions—leading
Islamists (who, for years, had been systematically excluded by security
vetting) to jockey for a more diverse group of younger judges. Muslim
Brotherhood cadres organized large rallies in support of the proposed law, and
movement leaders took up strong rhetorical cudgels against obstructionist
judges, thundering about domination of the judiciary by a few families. Those
on the bench shuddered in recollection of earlier confrontations with the
presidency in 1954 and 1969, the first of which gutted the previously assertive
administrative courts, and the second of which resulted in the purge of over
200 judicial personnel in an incident still referred to today as “the massacre
of the judiciary.”
In a meeting with judicial leaders (though one tilted toward
those who had inclinations toward compromise), President Morsi seemed to
suggest a cease-fire in the conflict over the judicial law—though the precise
nature of his promises remain unclear. At their most ambitious reading, he
agreed to work with the judiciary to develop a law using a mechanism that
reformist judges had deployed once before early in the Mubarak years: a
nationwide conference on justice that would sketch out a consensual approach
toward reform of the judiciary and independence. But many suspicious observers
worried that Morsi had simply delayed the confrontation until later.
The second battle is legally more complicated but no less
portentous—that over the public prosecutor. The position is a critical one,
since it oversees all criminal prosecutions and thus determines which
allegations are zealously pursued and which ones are overlooked. Finding a
reliable public prosecutor was one of the critical methods by which the old
regime found a way to deal with an often surprisingly autonomous set of
judicial actors. Thus, it was no surprise that any post-revolutionary
government would wish to find an alternative to Abdel Meguid Mahmoud, the
Mubarak-era holdover—a determination that only grew deeper as he failed to
mount effective prosecutions against old regime figures.
But when President Morsi finally moved against the prosecutor
and appointed Talaat Abdallah, he did so in a highly polarized atmosphere and
resorted to an audacious set of measures designed to allow the president to
ignore existing laws and procedures by making the interim constitutional system
into whatever he liked. And the country’s 2012 constitution effectively
immunized those measures from any subsequent challenge—or so it seemed, at
least until a judicial panel in Cairo’s Court of Appeals tasked with disputes
involving judicial personnel overturned Morsi’s decision to dismiss
Mahmoud.
Yet in doing so, the Court of Appeals appealed to a very
capacious view of “supra-constitutional principles” that it claimed it was
capable of discerning on its own. Not only did this cast doubt on Morsi’s
authority to have issued November’s constitutional declaration, but it also
pursued a mode of legal reasoning far more remarkable for its boldness than its
coherence. In essence, the court advanced a claim only slightly less sweeping
than Morsi’s: it allowed itself the authority to pick and choose which parts of
the various constitutional edicts and provisions actually applied in this
particular case, and bypass the rest.
Thus far, the ruling has not been implemented. It is not clear
whether the presidency is ignoring it because of the court’s sweeping logic, or
simply doing so because it wishes to keep a useful prosecutor general in
office. But the sequence of events has only further deepened cavernous judicial
suspicions of Morsi—ones that are very much reciprocated.
A compromise solution is readily available: to allow the current
prosecutor to leave and select a new one according to the new constitutionally
mandated procedure: senior judges on the Supreme Judicial Council would send
the name of a nominee to the president, who then makes the formal appointment.
Should Morsi accept the various compromises—working out the new judicial law with the judiciary and appointing a new
prosecutor general via the Supreme Judicial Council—he would have to face down
objections within his own ranks that he was capitulating to his opponents. But
(more likely) closed channels of communication between the judiciary and the
opposition would begin to reopen and allow Egyptians to begin climbing back
from their various ledges.
Nathan Brown is a professor of political science and international
affairs at George Washington University and a non-resident senior associate at
the Carnegie Endowment for International Peace.
This article is reprinted with permission from Sada. It can
be accessed online at: http://carnegieendowment.org/sada/2013/05/08/battle-over-egypt-s-judiciary/g2ni