Making Sense of the the Arab Spring 8: a Judicial coup in Egypt?

This posting is part of an ongoing series of commentaries on developments in the Arab Spring.

The understandable celebration over the election of Egypt's first democratically elected president, Dr. Muhammad Mursi, is now being tempered by the realization that the struggle to wrest power from Egypt's military, the Supreme Council of the Armed Forces (SCAF), will be a long struggle indeed.

The role of the courts in protecting the military's interests raises important political as well as analytical issues.  What role will Egypt's judiciary play in the attempt to implement a transition to democracy?  Who among the judges is willing to stand up to SCAF pressure?  Will the judiciary become another political pole in Egypt's power structure? Will we see a triangular power relationship pitting President Mursi against not only the SCAF but Egypt's judicial system?  In terms of democratic transitions theory, what role do/can institutions which are holdovers from authoritarian regimes play in newly established democracies?

The modern Egyptian judiciary has a long and distinguished pedigree, extending back to the reign of Muhammad Ali Pasha at the beginning of the 19th century.  Egyptian law represents an amalgam of  several legal traditions, drawing upon the Napoleonic Code and British and Italian law for civil and criminal law, and Islamic, Christian and secular traditions for family and personal status law.

Egypt's judiciary holds an especially important position in the political system because it is delegated the power to supervise and certify national elections.  Well developed as an institution prior to the July 1952 Revolution, the judiciary fell under the control of Emergency Law 162 in 1958, which was reimposed after the 1967 Arab-Israeli War, and then again in 1981 when Anwar al-Sadat was assassinated.  While the judiciary acquired formal independence from the state in 1971, its role in Egyptian society was severely circumscribed by the government imposed state of emergency that continued, except for an 18 month period in 1980-81.

The judiciary was increasingly subordinated to the state after the July 22, 1952 Revolution.  However, this did not occur through eliminating the court system but rather in a manner characteristic of many authoritarian Arab states.  I was struck when I first visited Iraq in 1980 and Iraqi colleagues informed me that the civil and criminal court system functioned much as it did before the Ba'thist coup of 1968.  As long as civil or criminal case had no political overtones, they were largely treated according to due process.

Gamal Abdel Nasser (Jamal 'Abd al-Nasir) left the judicial system in place much as did Saddam Husayn.  Both established a set of "Revolutionary Courts" to which important cases were remanded to assure that the decisions desired by the state were implemented.  The first such courts, the "Peoples" Courts"  (Mahakim al-Sha'b) were established by Egypt's military regime in 1954.

As an institution, Egypt's' judiciary in the modern era has a checkered history when it comes to upholding individual rights and promoting democracy.  The legal system acquired much greater importance when Anwar al-Sadat decided to implement his "Open Door" policy (al-Infitah)following the October 1973 Arab-Israeli War.  Realizing that the Egyptian economy could not advance without foreign capital, and aware that the rapid rise in oil prices during the 1970s left Saudi Arabia and other Arab Gulf producers flush  with surplus funds to invest abroad, Sadat saw the time as ripe for his new economic model.  This model would allow foreign investment, but mainly in conjunction with existing public sector firms.

The Open Door policy faced a problem.  How could the Egyptian government, which had nationalized foreign industry after the 1956 Tripartite invasion by Britain, France and Israel, and domestic industry between 1961 and 1964, assure foreign capital that its investments would be  secure?  By establishing the Supreme Constitutional Court (SCC) in 1979, Sadat hoped to both reassure foreign investors and play down Egypt's "socialist" heritage emphasized by the Nasser regime.

The members of the SSC have always been nominated by the Egyptian government and then appointed by the judiciary.  The court became very active during the 1980s and early 1990s, to the extent that the Mubarak regime became alarmed at its independence and its willingness to challenge regime prerogatives.

In 1995, the Mubarak regime began to "stack the deck" by restructuring the court's membership.  With the appointment of Fathi Najib in 1995, a judge with decidedly authoritarian proclivities,the court made a radical turn away from upholding human rights, defending citizen property rights and playing a central role in exposing regime efforts to control electoral outcomes.

With the arrival of the Arab Spring, the courts took on a new role in Egyptian politics. The SCAF wanted to have it both ways.  It wanted to appear as if it supported a transition to democracy but was not about to lose control of its political power and its vast economic interests.

Using the playbook of the Mubarak regime, the SCAF has manipulated numerous court decisions to circumscribe the power of democracy activists, such as abrogating the duly elected Egyptian parliament and banning several popular candidates from running for the office of president.

Now the courts are playing a central role in the writing of the new Egyptian constitution. As Judge Tahani al-Gebali, SCC Deputy President, told the New York Times on July 4, the actions of the court in dissolving the Egyptian parliament were intended to assure that democratic institutions are grounded in proper constitutional principles and protect civil liberties, especially those of secularists, minorities and women, against Islamists who do not respect such principles.

In other words, Islamists cannot be trusted to build a democratic political system, since they fail to accept the norms of tolerance and pluralism.  The SCC thus becomes the institution designed to "defend" individual liberties in Egypt.  Of course, Judge al-Gebali never references the military's actual status as a "military-industrial complex," the real reason behind the SCAF's unwillingness to hand over any meaningful political authority to civilian rule.  

Even though President Mursi quieted the fears of Egypts' Coptic community by visiting with top clerics in the Church and assuring them that "Egypt's Muslim and Christians are equal citizens in relation to laws and civic responsibilities " (muwattinin mutassawiyin fi-l-huquq wa-l-wajibat) (see al-Hayat, June 28), he did himself no favors by calling for the release of Shaykh Umar 'Abd al-Rahman who is serving a life sentence in the US for his complicity in the 1993 bombings of the World Trade Center.

Mursi's expressions of doubts about who really was responsible for the attacks of September 11, 2001, likewise point to a highly ideological political leader and one who is defensive when it comes to issues which have overtones of criticism of the Islamic religion.  Even if Mursi is trying to energize his base and "out radical" Egypt's Salafi movement, such statements play right into the hands of those judges who seek to curtail democratic freedoms and curtail a transition to meaningful democracy.  They acquire added legitimacy in defending "personal freedoms" and the "rule of law."

Mursi has popular opinion on his side as many Egyptians - both Islamists and secularists - are furious with the SCC's efforts to counter the people's will.  He needs to act in a statesmen-like manner and bring constant pressure on the courts to interpret the law in such a manner that Egypt does not become like many 20th century Latin American states where elected presidents were only titular leaders, namely front men for the military where real power resided..

The assertion that courts can play an important role in the democratic transition process needs to be assessed on  a case by case basis.  In Egypt, the jury is still out.  Will those judges supportive of democratization, and Islamist and secular political forces, have the power to force the higher court to confront the SCAF's continued control over political power and much of the Egyptian economy?  It is one thing to have a democratic election for president.  It is quite another to dislodge a determined political elite which is adamantly opposed to ceding any of its economic and political power.





Since the Egyptian Revoltuion, Egypt's judiciary







Law 142/2006 the Independent Judicial Authority Law