Still Fighting the Last War? Egypt's Judges after the Revolution

Egypt’s reformist judges must have felt vindicated with the fall of the Mubarak regime. After years of boldly calling for judicial reform—often at their own peril—many of them are now among those called upon to build a new political order. Among the leaders of the movement currently holding high office are Mahmoud Mekki, vice president of the republic, Ahmad Mekki, minister of justice, and Hossam El Gheryani who completed a term as head of the Supreme Judicial Council, currently chairs the constituent assembly, and has just won a leadership role on the official human rights commission. 

Their triumph, however, might turn out to be more personal than political. The judges may now be able to see their demands written into law, but those demands were formulated for a political system that is being transformed. Reformist judges may be finding themselves better equipped to fight with yesteryear’s Mubarak than with this year’s more complicated rivals, and the struggles over the coming years are likely to feature a different set of issues—or perhaps, more accurately, unexpected iterations of the older concerns over autonomy and authority. This October’s confusing legal crisis over the position of prosecutor-general—a critical post in the Egyptian judicial order—and whether or not the pre-revolutionary incumbent, Abdel Maguid Mahmoud, should be sacked and packed off to the Vatican as an ambassador is but a hint of the tensions that remain and are yet to come between the judiciary and the executive in Egypt.

What impelled the reformist judges in the early 2000s was a set of issues that had first arisen in the late 1960s when the Nasserist regime lashed out against judicial critics with a series of measures designed to place the judiciary as a whole under the watchful eye of the executive. The regime modified old structures and established some new ones to ensure that, in critical matters, the regime would have its way—either through the courts or around them. Over the course of the following decades, the judiciary managed to roll back some of the most egregious measures. This was done less through open confrontation—though some critical voices did emerge, particularly in the Judges Club, a social organization that at times provided a protected space for judges to articulate their positions—and more through steady lobbying on specific issues. Among their gains was wining an extension of the mandatory retirement age and securing increases in salaries and benefits appropriate to their stature in Egyptian society.

But Sadat and Mubarak were careful to retain all sorts of subtle and not-so-subtle ways to restrict judicial autonomy and authority. On the first, there were a variety of ways to co-opt judges through offering benefits and lucrative secondments; a number of critical positions (the Attorney General and the president of the Supreme Constitutional Court) also remained presidential appointments. How much did this influence the attitudes of the judiciary as a whole or the ability of the regime to obtain rulings in particular cases? That was always extremely difficult to tell. 

Far more obvious were the restrictions on judicial authority. The emergency law, the use of military courts (allowing the regime to pluck any case away from the regular judiciary and assign it to more reliable judges), shuffling of detainees (to avoid court-ordered releases) were some of the most notorious tools used. While reformist judges lost many battles, they succeeded in getting these clampdowns on judicial authority into the political spotlight: calls to end emergency rule and military trials were at the heart of the 2011 uprising.

The more subtle ways in which judicial autonomy were limited, though, demanded more subtle responses. Following the revolution, the Judicial Council and the Judges Club each revived older efforts to write a comprehensive legal framework for judicial organization so as to secure and codify judicial independence. The current minister of justice, Ahmed Mekky, spearheaded one sponsored by the Judicial Council beginning last year. But the judicial reformists are facing more challenges then they might have expected; the judiciary is hardly united behind these efforts. The battles of the past decade led to some personal bitterness, sometimes between the reformists and those who saw them as grandstanders and as dragging an apolitical institution into political opposition. Some judges look upon the reformers not as saviors but as potentially vengeful rivals. 

Since Mubarak’s fall other divisions have come to light.  Hitherto hidden ideological divisions (masked in part because of a strong ethos of nonpartisanship) have broken a bit into the open.  Judicial circles are showing more diversity.  It had been widely suspected that some of the reformists had Islamist inclinations, but now that orientation is more apparent. There are intra-institutional splits as well: some judicial bodies regard themselves as properly separate not only from the executive branch, but also from the rest of the judiciary. These groups are not anxious to lose their own independence, even if the judiciary as a branch declares itself more autonomous. 

Changing circumstances have outpaced reformist judges’ demands, and the dissonance is increasingly apparent. The judicial reformers, for instance, have raised again an old concern (dating back to its creation) of the existence of a specialized and independent constitutional court—something the judiciary had historically resisted. Those suspicions have a historical basis at times, since Egypt's authoritarian rulers had sometimes created new structures to avoid the regular courts. But some reformers may be reacting more on the basis of suspicions than strong evidence when they work to fold such bodies into the main court system today.

Additionally, the battles of the past have been to fend off the executive—to keep the president away from anything more than a symbolic role in judicial matters and wrest both autonomy and authority from the ministry of justice. But now it is clear that the parliament is likely to be far more of a challenge, though the old struggle with the executive may yet continue as well. In the short-lived 2012 parliament, deputies showed some evidence of feeling that their democratic credentials gave them authority to redesign some judicial structures (most notably the Supreme Constitutional Court). Of course, few democratic societies accord the judiciary the degree of independence that Egyptian judges occasionally crave.  While Egyptian judges tend to want to have full control over judicial appointments, essentially rendering themselves a self-perpetuating body, most democratic systems allow for a multiplicity of voices. 

Finally, the judiciary is finding that some subtly different conceptions of its appropriate role are beginning to manifest themselves. In a sense, these might be seen as differences over what the role of Egypt’s judges is: are they ultimately guarantors of collective interests—the state, the community, and public welfare—or of individual rights? In the past, there was not always a clear distinction between the two, especially when the wielders of political authority seemed to challenge both. But already there have been signs that these pull in opposite directions, as courts have been handed cases involving nationalizations, political disqualifications, transitional justice, political rights, and free expression.  

These are questions that the judicial reformers did not have to resolve when they voiced their opposition to past regime practices; now that they have taken on the task of helping to reshape Egyptian politics, they will be called upon to provide answers. 

Nathan J. Brown is a professor of political science and international affairs at George Washington University and a non-resident scholar at the Carnegie Endowment for International Peace. 

This article is reprinted with permission from Sada.  It can be accessed online at:

http://carnegieendowment.org/2012/10/16/still%2Dfighting%2Dlast%2Dwar%2Degypt%2Ds%2Djudges%2Dafter%2Drevolution/e1eo
 
© 2012, Carnegie Endowment for International Peace.