Ironically, after all the judiciary's historic battles with external forces to secure its independence from autocratic regimes and political interference, the judiciary today faces an even greater threat to its independence—this time from within.
The sensationally injudicious rulings of some judges are setting the stage for the judiciary to lose much of the legacy of independence others before them fought long and hard to achieve.
The business of the judiciary is justice, fairly and impartially administered. The strength of the judiciary flows from the perceived legitimacy of judicial rulings. Everything that contributes to a perception of injustice or political bias in judicial or prosecution decision-making decreases that perceived legitimacy and thereby weakens the judiciary.
Autocratic regimes tolerate an independent judiciary, even a judiciary that sometimes blocks government actions, if to do so promotes the overriding objectives of social order and stability and promotes economic development. At some point, if injudicious prosecution decisions and court rulings fuel rather than quell civil unrest and social instability, with resulting harm to the nation’s security and economy, government tolerance for an independent judiciary may reach a breaking point.
President Al-Sisi spoke the truth when he said on May 22, 2015, at a World Economic Forum on the Middle East and North Africa, “[O]ur efforts for ending extremism and terrorism should go side by side with other endeavors for creating a future that is full of freedom, equality, and pluralism, and which is free from oppression, injustice and exclusion.” Skeptics may scoff, but what if President Al-Sisi meant what he said? Or, even if he did not, what if he later comes to the conclusion that what he said is true? And, what are the implications of that for the judiciary?
The people will not support a judicial aristocracy and the government will not support a judicial autocracy if the rule of law degenerates into rule of the judges, and if too many judges are creating too many problems for the country.
If the judiciary fails to gain internal quality control of those judges who are rolling around like loose cannons on the deck of the ship of state, sooner or later such control is likely to be imposed externally in the name of professional reform.
For example, the most obvious door to statutory reform opened by a series of highly controversial lower court rulings that fail to meet Egyptian standards of justice when challenged on appeal, especially when the frequency of such rulings is coupled with inflammatory public comments by prominent judicial figures supporting nepotism rather than merit as a preferred criteria for selecting judges, would be to raise the statutory standards of eligibility for judicial appointment.
The Egyptian judiciary is supposedly modeled after that of France, but the standards for qualification and selection of judges are not. In France, eligibility for appointment as a judge or public prosecutor requires the successful completion of a rigorous 31-month course of post-graduate study at the National School for the Judiciary, entrance to which is determined through achieving a top score on a difficult, nation-wide competitive examination.
In Egypt, selection for judicial appointment is based mostly on an examination of candidates’ background, including family background, and an oral interview with a panel of judges. There is no requirement that candidates pass a written examination or successfully complete a pre-appointment course of judicial training, despite the dramatic decline in the quality of most law school education in Egypt over the past several decades. And, the amount of post-appointment education provided to new judges and public prosecutors has steadily declined over the last decade to what is now only three months or less of essentially orientation training.
Visionary, forward-thinking Egyptian judges have long advocated for selection criteria and a dramatically improved judicial education system modeled more closely on that of France and many other civil law countries. Plans for a first-rate, two-year judicial academy have even been drawn up and the land for a campus purchased, but that vision has never gained enough support within the judiciary to become reality.
If the judiciary allows itself to degenerate into a caste rather than a profession, fails to select new judges and public prosecutors based on adequately high standards of merit, fails to provide those new judges with a sufficient quality and quantity of judicial education to perform at the highest professional level, and fails to maintain quality control over judicial decision-making through adequate internal mechanisms of professional accountability, then in the national interest the government will surely, sooner or later, impose such quality control measures by statute.
And, under the cover of enacting necessary "reforms," some measures could easily include provisions reducing judicial independence in the name of strengthening democratic checks on judicial power.
If the judiciary has enough foresight to see that coming and is serious about avoiding such a loss of institutional autonomy and independence, then the judiciary must undertake equally serious efforts to puts its house in order.