Egypt’s judiciary is having a bad year – and possibly, the worst year in six decades, according to a new report issued by the Arab Centre for the Independence of the Judiciary and the Legal Profession. A series of inter-branch confrontations – including a six-week long physical siege of the Supreme Constitutional Court building by Brotherhood supporters determined to prevent the court from ruling to dissolve the upper house of Parliament, President Mohamed Morsi’s November 21 unilateral decree immunizing executive decisions from judicial review, and the controversial replacement of the Public Prosecutor with a Brotherhood-appointeein December – have escalated into a full-blown war of attrition between the Muslim Brotherhood and a judiciary that has emerged as the greatest threat to its political agenda. With parliamentary elections now postponed until mid-August at the earliest, a $4.8 billion IMF loan in jeopardy, a nationwide police strike underway, and growing nostalgia for military rule, the last thing Egypt needs is a mutually destabilizing power struggle between rival state institutions.
Yet, the Muslim Brotherhood is currently poised to provoke yet another confrontation with the judiciary by appealing a March 6 Administrative Court decision that suspended parliamentary elections and referred Egypt’s constitutionally suspect electoral to the Supreme Constitutional Court (SCC) for further review and revisions. Eager to begin election procedures as quickly as possible, Morsi’s legal advisor is arguing that the president’s decree setting dates for the parliamentary elections was a “sovereign act” that is immune to judicial review.
In recent days, the Brotherhood has reiterated its commitment to the “rule of law” and maintaining a “separation of powers.”But it is increasingly difficult to take seriously the Brotherhood’s assertions of “respect” for judicial independence when its recent behavior – stubbornly refusing to allow judicial review of a flawed electoral law and threatening to appeal last week’s court ruling suspending the parliamentary elections – indicates an intent to neutralize judicial opposition to the Brotherhood’s political agenda. The Brotherhood’s opposition to judicial review of the electoral law is a symptom of its insistence on legislative sovereignty and what Michael Hanna has described as a “winner-takes-all” understanding of democracy in which the victors are entitled to “to govern unchecked by the concerns of the losers.”
Because judicial independence poses a threat to the Brotherhood’s core political principle of legislative sovereignty, the judiciary is an obvious target for “Brotherhoodization,” a term coined to describe the FJP’s creeping takeover of state institutions since the election of Mohamed Morsi last June. Despite pretentions of power-sharing and what turned out to be an empty promise to appoint Coptic and female vice presidents, Eric Trager has argued that these gestures of inclusivity are disingenuous window-dressing on “a deeplyundemocratic movement concerned above all else with enhancing and perpetuating its own power.”
Although Morsi was elected on a platform promising a structural overhaul of Egypt’s authoritarian institutions, it has become clear that the Brotherhood’s version of “reform” simply means repopulating the same old organs of the Mubarak state with new faces – Brotherhood loyalists and co-opted yes-men – rather than making meaningful structural changes. After successfully taming the most obvious node of potential opposition – the military – by forcing the top generals into retirement last June, the Brotherhood has turned its attention to the police, labor unions, Education Ministry, and the media.
The institution that has proved most resistant to Brotherhoodization has been the judiciary, which Nathan Brown has aptly described as“the hardest nut to crack.” The judicial appointments process, controlled by an independent Supreme Judicial Council (SJC) elected by judges themselves, is relatively insulated from executive interference. However, in practice, the executive-controlled Ministry of Justice exerts significant influence over judges by setting their salaries, retirement age, promotion criteria, and controlling disciplinary procedures.
In the months since President Morsi’s election, judicial sources have complained of an ongoing campaign to Brotherhoodize Egypt’s judicial institutions. These efforts have been more successful in the judicial institutions where executive control is greatest – the Justice Ministry and Public Prosecutor’s office – which have seen an influx of hundreds of newly appointed Brotherhood lawyers and administrative officials in recent months, according to Amir Ramzi, a judge in Cairo’s Court of Cassation.
Yet, significant institutional barriers to Brotherhoodization remain. Islamists have been historically underrepresented in the judiciary, which is – by design – a conservative and nepotistic institution. There is no merit-based qualifying exam for judicial appointments, which are subject to the discretion of the SJC, and the children of current judges are systematically favored over outsider candidates. Under Mubarak’s rule, it was very difficult for known Brotherhood members to enter the judiciary because the appointments process was monitored by the state security agencies, which routinely reviewed the lists of candidates for judgeships to ensure that Islamists were excluded.
The institutional conservatism of the judiciary and steep barriers to entry make Brotherhoodization from the bottom-up a slow and difficult enterprise. As a result, the Brotherhood has taken a top-down approach to undermining judicial independence with a two-pronged strategy: 1) key appointments to the institutions over which the executive wields some control, notably the Ministry of Justice and Public Prosecutor’s Office; and 2) legal and constitutional reforms that curb the judiciary’s power.
After assuming office in June, Morsi promptly appointed a Brotherhood sympathizer, Ahmed Mekki, to head the Ministry of Justice. Mekki has since come under intense scrutiny for his role in concealing information about the death of an activist who was fatally tortured by police. In a televised confession on March 12, Mekki admitted that he prematurely attributed al-Gendy’s death to an automobile accident at the request of the Interior Minister. The scandal was a shocking example of political interference in the purportedly neutral law enforcement functions of the Justice Ministry.
Concerns about executive interference in the judiciary were also raised by the removal of the former public prosecutor, Abdel Meguid Mahmoud, who was effectively exiled from Egypt in October when Morsi appointed him as ambassador to the Vatican. According to Moataz ElFegiery, a Ph.D. candidate at the School of Oriental and African Studies (SOAS), Mahmoud’s dismissal was not only politically motivated but also illegal under the current judicial law and the 2011 constitutional declaration that was in force at the time, both of which prohibit the arbitrary removal of judges and the public prosecutor. Mahmoud has since been replaced by a prosecutor with close ties to the Brotherhood, Talaat Abdallah, raising concerns that the political neutrality of the prosecutor general’s office – responsible for handling extremely sensitive investigations into the killing and torture of protesters — has been compromised. With allegations of police brutality on the rise, human rights activists fear that the prosecutor’s office is shielding the Brotherhood from accountability and distorting investigative reports. According to Adel Ramadan, a lawyer with the Egyptian Initiative for Personal Rights, “If you have a politicized Public Prosecution led by someone who has Brotherhood affiliations, then the forensic report will be biased.”
In addition to political appointments, Morsi has undertaken legal and constitutional reforms to curb the independence of the judiciary from the executive branch. In a brazen, and ultimately unsuccessful, act of executive overreach, Morsi issued a unilateral constitutional declaration on November 21 that immunized executive decisions from judicial oversight. Although Morsi was forced to retract the decree in the face of overwhelming opposition, the new constitution drafted under his oversight was “specifically crafted to serve the interests of the ruling party,” according to Ragab Saad, a researcher with the Cairo Institute for Human Rights Studies. The constitutionwas similarly criticized by the UN Human Rights Commissioner for “giving the Executive excessive power over the judiciary” and marked a “serious step backwards” for judicial independence. Critics pointed to Article 176, which reduced the size of the Supreme Constitutional Court from 18 judges to 11 (including the chief justice) and grants the president the power to nominate new justices. The maneuver, which has been described as “court-packing in reverse,” had the effect of removing several justices noted for their opposition to the Brotherhood, including Tehnay al-Gebaly.
In a setback to proponents of judicial independence who had hoped the new constitution would grant the SJC exclusive control over the appointment of new judges to the SCC, Article 176 allows the president to appoint new judges chosen from among members of judicial or other state bodies. At least one and possibly two SCC justices are expected to retire by the end of June, giving Morsi an opportunity to nominate their replacements without oversight from the SJC.
Judicial sources report that the Brotherhood has ambitions to further scale back judicial independence by revising the laws onJudicial Authority and Judicial Independence, legislation governing the office of the public prosecutor, as well as a new law creating a Judges Academy that would undermine the exclusivity of the judiciary by making it easier for those outside of the ranks of the traditional elite – including members of the Brotherhood – to be trained in the judicial profession. Until a new lower house is elected – a process that could take until August – the drafting of these laws will be controlled entirely by the Shura Council – the 84 percent Islamist upper house of Parliament which was elected by less than 15 percent of the electorate.
Ironically, the Brotherhood was one of the biggest champions and beneficiaries of judicial independence under Mubarak, as the SCC’s liberalizing jurisprudence on election-monitoring and freedom of association helped the Brotherhood win 20 percent of the seats in the 2005 parliamentary elections. But now that the Brotherhood has been catapulted from opposition to majority, it has abruptly turned its back on a judiciary that was once a key ally in its struggle to erode the legal infrastructure of Hosni Mubarak’s dictatorship. Solidly in control of two out of three branches of government, the judiciary is the last institution – other than the military — standing between the Brotherhood and a total monopoly on the state.
Mara Revkin is a student at Yale Law School and former Assistant Director of the Atlantic Council’s Rafik Hariri Center for the Middle East. She can be reached at email@example.com and on Twitter @MaraRevkin.