Photo above: About 300 Egyptian judges demonstrate in front the High Court Building in downtown Cairo on May 25, 2006, to demand greater judicial independence, under the watchful eyes of thousands of anti-riot police. Civil society activists organized other demonstrations to support the judges. Street protests in support of judicial independence grew over a period of weeks, with the largest rally drawing almost two thousand people. (AP Photo/Mohamed Al- Sehety)
Egypt’s judiciary has long battled for independence from authoritarian regimes, with a surprising degree of success.
But, one may wonder, how could that possibly be true? How could a judiciary be independent in a country under authoritarian rule?
That is a fascinating question, one studied and addressed in considerable depth by noted scholars in books such as these:
- Nathan J. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997)
- Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2002)
- Nathalie Bernard-Maugiron and Baudouin Dupret, eds., Egypt and Its Laws (The Hague: Kluwer Law International, 2002)
- Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007)
- Tamir Moustafa, "Law and Resistance in Authoritarian States: The Judicialization of Politics in Egypt," in Tom Ginsburg and Tamir Moustafa, eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008)
- Nathalie Bernard-Maugiron, ed., Judges and Political Reform in Egypt (Cairo: The American University in Cairo Press, 2008)
- Bruce K. Rutherford, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton: Princeton University Press, 2008)
Egypt is misleadingly portrayed in today’s popular narrative as a country in which the government is centralized and monolithic, such that an autocratic President backed by the military controls all the mechanisms of government authority, and therefore has the ability to exert effective control over judicial decision-making (and as corollaries, that judicial decision-making reflects the will of the President and the President should be held accountable for judicial decision-making).
In reality, modern Egyptian government, especially today’s post-revolution government, has multiple, fairly autonomous pillars of power, the judiciary being one of them.
Past Presidents from Nasser on have tried with varying degrees of success to curb judicial independence, but none have been able to bring the judiciary to heel. The judiciary has emerged as one of Egypt’s most powerful and most autonomous state institutions. In fact, the degree of that autonomy is extraordinary, with the judiciary of today self-selecting its members and senior officers (more on that below).
The real concern today should not be with whether the judiciary is independent, but with its judges’ extraordinary degree of autonomy, almost to the point of being unaccountable, with some injudicious elements these days rolling around like loose cannons on the deck of the ship of state.
But, despite that concern, in a country that many (including this author) hope will gradually transition to democracy, a strong and independent judiciary is essential.
The last thing pro-democracy groups and policy-makers should be doing today is calling for increased executive control over the judiciary and interference in judicial decision-making. While executive intervention may seem like a short-term solution to the immediate problem of injudicious decision-making by a relative few of Egypt’s tens of thousands of judges, it would in the long-run weaken the judiciary as an essential institution of democracy—the institution with both the power and at its core the will and independence to act as a democratic check on authoritarian excesses by the other branches of government and to protect the constitutional rights of the Egyptian people, as the judiciary has done on many occasions in the past.
Nathan Brown wrote in a chapter of a book published in 2008, “Egyptian administrative courts and the Supreme Constitutional Court have become sites for individual and organized efforts to breathe life into Egypt’s formal democratic practices and institutions. Political parties seeking to gain recognition, individuals seeking political rights, NGOs challenging restrictions, and activists seeking to eliminate unfair electoral procedures all have found the courts far friendlier places than other institutions of the Egyptian state.” He also observed, “It is clear that the judiciary is generally a respected institution with a strong inclination toward supporting the rule of law.” (Brown, “Reining in the Executive, 135-36, 148)
In her introduction to that 2008 book, Nathalie Bernard-Maugiron, another leading expert on the Egyptian judiciary, wrote, “If justice in the Arab world is often marked by the judiciary’s lack of autonomy in relation to the executive branch, one of the characteristic features of the Egyptian judiciary is its strength and activism in defense of democratic values.” (Bernard-Maugiron, Judges and Political Reform in Egypt, 1)
Also in 2008, Tamir Moustafa wrote, "[I]n Egypt, a country with one of the most durable authoritarian regimes in the world, courts enjoy a surprising degree of independence and they provide a vital arena of political contention." (Moustafa, "Law and Resistance in Authoritarian States," 132)
Obviously, the popular narrative about the Egyptian judiciary today is much different, and far more negative. But, it was not so much the judiciary that changed after the 2011 revolution as it was the popular narrative and the context in which it was being written.
The popular narrative today includes the express or implied notion that before the revolution the judiciary was under the control or influence of President Mubarak, because the judges were all “Mubarak appointees.” What is unacknowledged by those making that assertion is that, while it is true that President Mubarak appointed all new judges and judicial officials during his time in office, with only a few exceptions he had no power to select whom to appoint.
In Egypt, the judiciary selects new judges. Appointment by the President is only a ministerial act, little more than an administrative formality. So, to knowledgeable observers, the fact that judges were appointed by Mubarak lends no logical support to the popular inference that because Mubarak appointed them, they were beholden to him, or that he appointed them because of their loyalty to him.
In fact, if it is assumed that the judges appointed during the Mubarak years are naturally inclined to be loyal to those who selected them, then the more logical inference is that they owe their primary loyalty to the institution of the judiciary, which is actually closer to the truth.
Moreover, those who assert that Egypt’s judges are controlled by or responsive to direction from the President rarely offer much if any evidence in support of that claim. For the most part, it is an inference based on the assumption that an independent judiciary is unlikely to exist in a country ruled by an authoritarian government. Of course, the validity of that inference is no stronger than the assumption on which it is based. And, as demonstrated by the scholars cited above who studied the Egyptian judiciary in great depth before the revolution, even though that assumption may seem superficially plausible, it fails to hold up to deeper scrutiny in light of the well-documented history of the Egyptian judiciary.
That is not to say that no possibility exists that some individual judges may be susceptible for various reasons to control or manipulation by elements of the executive branch of government. However, by a wide margin most of the experience of and evidence known to this author supports the perspective that malleable judges are the exception rather than the rule, and that the strong majority of Egyptian judges are fiercely protective of their independence, both institutionally and individually.
Alignment of interests from time to time should not be confused with executive control. If President Al-Sisi were to attempt to exert control or substantial influence over judicial decision-making, the natural reaction of most Egyptian judges would be outrage and to do the opposite of what they were being pressured to do, just to prove or vindicate their independence. To avoid the counter-productive backlash likely to follow from any such effort to interfere with judicial decision-making, the far wiser and more pragmatic course is generally to avoid making that mistake.
So, those who believe foreign governments should pressure President Al-Sisi to pressure the judiciary to rule as he or those foreign governments want them to rule almost certainly make two factual errors: (1) that the President has such influence over judicial decision-making; and (2) that if he were to make such an attempt to interfere with judicial decision-making the result would be positive.
Under most circumstances, the opposite is far more likely to be true. The most President Al-Sisi can reasonably be expected to do in most circumstances is to make his displeasure with a certain state of affairs known, as he did when he stated publicly that he wished that the Al-Jazeera journalists in the so-called “Marriott cell” case had been deported rather than prosecuted (which he eventually did with Peter Greste after enacting a new law that authorized him to do so).
But, even then he would be walking on thin ice and would need to tread carefully to avoid doing more harm than good by prompting a negative backlash.