Former President Morsi's Attacks on the Judiciary, and Judicial Backlash

President Mohamed Morsi’s campaign of attacks on the judiciary radicalized many judges against him and the Muslim Brotherhood. Some of those judges appear to have undertaken what amounts to a judicial jihad to prevent any further attacks on the judiciary by wiping out the Muslim Brotherhood and other Morsi supporters.

Fortunately, the Court of Cassation appears to be committed to reversing injudicious lower court rulings. In fact, reversal on appeal is so predictable that in practical terms the sensationally injudicious rulings of some lower court judges amount to judicial sound bombs (bombs that make a big bang but are not designed to kill people), a form of psychological warfare.

Even though injudiciously imposed convictions and sentences are unlikely to be upheld on appeal, they do result in the detention of large numbers of defendants for long periods of time, sometimes even years (perhaps the real intent), as their cases work their way through the long process of trial, appeal, reversal, retrial, and sometimes a second or even third appeal, with further delays caused by huge case backlogs.

In effect, the judicial jihadists appear to be pursuing an injudicious form of transitional justice, fighting what they see as political lawlessness by Morsi and his supporters with judicial lawlessness, fighting fire with fire, with the unintended consequence of feeding the flames of radicalization and counter-radicalization. (Justice promotes lawfulness and injustice promotes lawlessness, on all sides.)

There is no way of determining what percentage of Egyptian judges are judicial jihadists (definitely not all of them, and probably not even close to a majority), but to understand them, one must understand the attacks on the judiciary that radicalized them.

Morsi’s attacks on the judiciary began barely a week after he took office in July 2012, when he ordered the People’s Assembly back in session in defiance of a Supreme Constitutional Court (SCC) ruling dissolving that body after ruling that the law under which its members were elected was unconstitutional.

The next day, the SCC held an emergency session and issued a public statement declaring its ruling dissolving the People’s Assembly “final and binding.” The following day, the Assembly’s Speaker (a member of the Muslim Brotherhood’s Freedom and Justice Party) convened a session of the Assembly in which it voted to refer the issue of dissolution to the Court of Cassation. But, the Court of Cassation deferred to the jurisdiction and authority of the SCC.

The next month, obviously in the belief that his transitional authority as President matched that of the Supreme Council of Armed Forces (SCAF) during the immediate aftermath of the revolution when the constitution was whatever the SCAF declared it to be, Morsi issued his own “constitutional” declaration, transferring to himself most of the governmental powers yet reserved by the SCAF, declaring himself to be commander-in-chief of the military, forcing the head and senior officers of the SCAF into retirement, and announcing the appointment of then-General (now President) Abdel Fattah Al-Sisi as Minister of Defense and head of the SCAF. 

Morsi also granted to himself authority to form a new Constituent Assembly to draft a constitution in the event any condition prevented the current Constituent Assembly from completing its work, which amounted to a claim of sovereign authority to nullify the effect of any judicial decision dissolving the current Constituent Assembly, the legal legitimacy of which was at that time being contested in the administrative court system. 

From a political perspective, it was an act of dictatorial hubris. From a judicial perspective, it was a pre-emptive strike on judicial authority. 

For the SCAF to impose a state of undeclared martial law in the wake of the 2011 revolution was one thing (they had military might and had acted to fill a constitutional vacuum), but for Morsi in 2012 to claim the same sovereign authority to make “constitutional” declarations above judicial review was quite another. Morsi either failed to recognize that difference, or ignored it.

Things went quickly downhill from there. In September 2012, the Supreme Administrative Court rejected a Morsi government appeal to overturn the SCAF’s order dissolving the People’s Assembly, and ruled that regardless of any action taken by the SCAF to enforce the SCC’s ruling, the SCC ruling itself was the final word on the subject and was unreviewable by any other court.

The next month, in October, an administrative court referred to the SCC the issue of the constitutionality of the formation of the Constituent Assembly, which had been elected under the same legal scheme already declared unconstitutional by the SCC. President Morsi increased the considerable pressure he had already been exerting on the Islamist-dominated but politically fractured Constituent Assembly to complete its work before any potential court ruling dissolved that body.
Also in October, Morsi unsuccessfully attempted to remove the Mubarak-appointed Prosecutor General (a judicial officer) from office. Because Morsi lacked any legal authority to do so, the Prosecutor General simply ignored him. The whole ill-advised episode was an embarrassment to Morsi and made him look legally inept and ineffectual.

On November 22, 2012, Morsi moved to dramatically solve that and all his other legal problems with the judiciary by issuing the ultimate “constitutional” declaration, declaring all of his edicts until a new constitution was adopted to be above judicial review. He declared the Constituent Assembly and remaining chamber of parliament to be immune from judicial review. He also gave himself authority to fire and replace the Prosecutor General, and did so.

From the perspective of the judiciary and many others in Egypt, it was a brazen claim to absolute dictatorial power, completely antithetical to the rule of law, going far beyond anything any previous autocratic President had ever attempted in their struggles for control over the judiciary. 

The public backlash was massive. Thousands of citizens gathered in protest at Tahrir Square and other locations around the country.

Two days later, the head of the Judges Club (an independent professional organization of which most judges are members) called for a nation-wide judicial strike. Most judges and public prosecutors answered that call, effectively shutting down judicial proceedings in all except emergency cases. 

The day after that, the SCC issued a statement saying Morsi’s declaration was “an unprecedented attack on the judiciary’s independence.” 

Even Morsi’s Minister of Justice, Ahmed Mekki, publicly stated that he shared the judiciary’s concerns about Morsi’s declaration, and attempted to mediate a peaceful solution to what was becoming an all-out war.

Instead, the clash deepened. 

On December 1, Morsi accepted the hurriedly completed draft constitution from the head of the Constituent Assembly and announced that it would be put to a public referendum in only two weeks, allowing almost no time for public debate. Among the provisions of the proposed constitution was one reducing the number of justices on the SCC from 18 to only 10, plus the Chief Justice.

The next day, reportedly in the belief that the SCC was poised to rule that the Constituent Assembly and Shura Council had been elected unconstitutionally and were dissolved, hundreds of hostile pro-Morsi demonstrators blocked access to the SCC courthouse and vowed to remain there until after the proposed constitution was ratified. 

Rather than meet elsewhere, as the justices could have done were they intent on immediately issuing any such momentous rulings, the SCC announced it was suspending operations indefinitely, calling it a “black day” in the history of the judiciary, and describing the environment around the courthouse as “full of hatred and a desire for revenge.”

The 2012 constitution was ratified amid low voter turnout, and took effect on December 25.

Then, the Islamist-dominated Shura Council pressed aggressively toward passage of a bill to reduce the mandatory retirement age of judges from 70 to 60. If enacted and signed into law by President Morsi, it would have eliminated all but one of the remaining members of the SCC, the entire Supreme Judicial Council, and the entire senior ranks of the judiciary, amounting to the removal of almost one-quarter of the nation’s judges.

In May 2013, Morsi met with senior judiciary officials to attempt to negotiate an agreement that would stave off what some called a judicial massacre. There was talk of compromises such as reducing the mandatory retirement age only to 65 (which still would have removed almost the entire leadership strata of the judiciary, and have left only three of the remaining justices on the SCC). The judiciary’s governing body, the Supreme Judicial Council, asked for a week or so to convene judiciary meetings to consider the potential for compromise, but the Shura Council announced it would press forward with the plan to lower the retirement age to 60. 

About a month later, on July 3, 2013, following massive public demonstrations calling on the military to step in, Morsi was removed from office and the Shura Council was disbanded. 

Within days after Morsi’s removal, the SCAF announced that the Interim President of the Republic would be Adli Mansour, Chief Justice of the SCC. The interests of the military and judicial poles of power were aligned, and the power of both was strengthened.

The military’s actions of removing Morsi and his government from office and establishing an interim government gained power of perceived legitimacy by the selection of the nation’s top judicial officer to act as Interim President. The judiciary was vindicated, but the flip side of that coin was that the judiciary owed its salvation to the military, and in particular to the then-head of the military, General Al-Sisi.

It is an example of the old adage, the enemy of my enemy is my friend. Thus, though very different culturally and in core interests—with the power of the military being in its coercive capacity and the power of the judiciary being in respect for the rule of law—the interests of both poles and that of the future presidency all aligned against the Muslim Brotherhood and its allies. 

The power of that alignment is strengthened with every bomb that explodes and every move made by Morsi supporters to destabilize the country and prevent the current government from succeeding in its efforts to address the country’s deep economic problems.