I do not mean to imply that journalists have a monopoly on asking the wrong question. In fact, those that I speak with are very happy to try and understand the questions they should be asking. The same is true for academics who keep on honing in on better questions. For a while we have been asking the wrong question: “Why would an authoritarian regime allow an independent judiciary?”
I have been part of the effort to answer that question since I began work on judicial politics. But at least in the Egyptian case, I think we may be realizing that the question misdirects our attention. It treats the judiciary as if it is a creature of intelligent design by a masterful authoritarian ruler. It is actually the produce of historical evolution, accretion, large doses of judicial agency, and, of course, even larger doses of regime tinkering. Understanding the judiciary as an evolving institution – one with a strong corporate identity but also one operating in a thoroughly authoritarian environment – will help guide our way to a better understanding of the problems.
Of course, the Egyptian judiciary is a great subject for a dissertation or two – or even a book or two. But let me restrict myself here to the problems that have led to the cavalcade of confounding verdicts – ones that have helped dig the Egyptian polity deeper in to its current crater rather than leading it carefully out toward liberal legal nirvana. We must begin by acknowledging that the judiciary does have incomplete but real institutional guarantees of independence: It has a long history; a sense of mission to the rule of law; an impressive and well-developed legal framework; considerable autonomy in personnel and budgetary matters; constitutional guarantees of independence and due process; and rulers who routinely pledge fealty to the rule of law. But six problems have been on full display in recent years – and while the first three are likely to get slowly better, the other three might even get a bit worse.
First, historically the executive has made judicial independence safe for authoritarianism through appointments of key judicial officials. The chief justice of the constitutional court, for instance, was a direct presidential appointment until 2011. For many years the president merely turned to the court’s most senior justice, but when the body started finding too many constitutional flaws in Egypt’s laws, a series of judges were brought in from outside the court to tame the body.
Perhaps the most important official was the prosecutor general – responsible for deciding whom to investigate and prosecute and whom to ignore. (For that reason, much of the judicial tussling among various political forces after the 2011 uprising has focused on this post.) Significantly, such positions are about to be placed far more into judicial hands – a longstanding demand of advocates for judicial independence. This might provide a very significant degree of insulation from executive interference – but it may also insulate the judiciary from the entire society and political process.
Second, the executive has been able to dole out carrots on a selective (or even general) basis in order to encourage cooperative attitudes. Lucrative secondments have been a frequent cause of suspicion when allotted to individuals; at times when the judiciary as a whole has put forward less strident leaders they have seen salaries increase and perquisites multiply. Does this buy the loyalty of some judges? That is impossible for outsiders to say, but the effect on the judiciary’s morale and reputation are real: These practices certainly make some judges uneasy, spark the suspicions of regime critics, and provide a steady stream of rumors for anyone who wishes to cast doubt on a particular verdict. Again, however, the judiciary seems to be pushing for greater autonomy in such matters, and as a member of what might be called the post-June 30 “party of order” now working to reconstruct the Egyptian political system, it is now in as good a position as it has ever been to get what much of what it wants.
Third, the judges generally have a very strong sense of loyalty to the Egyptian state and supporters of political and social order. As suspicious as they may sometimes be of executive influence, Egyptian judges tend not to behave as freestanding actors mediating between the state and the society or among various social actors, but as enforcers of the law and interests of the state, standing above and guiding the society in what they see as a principled fashion.
The judiciary as a body shows real willingness to distance itself from the executive but little interest or willingness to distance itself from the state. And, for many judges, that state has just come under severe attack by an alien force. The invaders managed to temporarily seize the presidency; for a while key institutions of state – including, most shockingly to judges, courts themselves – were quite literally besieged by these outsiders. Of course, not all judges feel this way, but many do seem to share the sense of crisis that has led perhaps to some of the brutal efficiency displayed when trying some cases. This impulse could slowly abate – I have certainly found some judges who are already troubled by the enthusiasm displayed by some of their colleagues for the counterrevolution (my term, definitely not theirs!).
These three problems are real and deep, but they might become less pressing. But there are three other problems that are unlikely to improve.
First, in Egypt it makes far more sense to speak of the independence of the judiciary than to speak of the independence of an individual judge: Judges are responsible not only to the law and their own consciences but also to each other. While judges may have full authority to reach their own decisions, the frequency of multiple-judge panels, extensive rights of appeal, judicial control over matters of appointments and promotion, and the fact that the judiciary is a lifetime career – and one that is often passed from father to son – combine to give the judiciary a very strong sense of corporate identity. And recent constitutional and legal changes may deepen this feature.
Some of the most startling verdicts in recent years have been reversed on appeal as more senior judges have reined in the youthful exuberance of some colleagues. In many ways, this corporate independence is a positive development. But it also deepens what I have referred to as the “Balkanization” of the Egyptian “wide state,” a phenomenon that renders the judiciary overly isolated from the entire society rather than just walled off from executive interference and partisan politics.
Second, Egypt’s legal framework, the one that judges take such pride in upholding, is deeply authoritarian – since all of its lawmakers have been authoritarian. Laws governing civil society, political life, the press, states of emergency, local government, religion, education, or virtually any feature of Egyptian life have been written in a way that augments state authority and undermines or bypasses accountability to democratic mechanisms. And this has often been done in a manner sufficiently vague as to turn many citizens into potential criminals when they undertake what they might see as normal activities.
Of course, some of these spheres have been liberalized in recent decades by legislative change (and sometimes by judicial action) but always unevenly so. And the authoritarian nature of law is not likely to change any time soon. Not only is the political system in something of an authoritarian mood, but the new constitution – probably unwittingly – actually entrenches much of this problematic legislative framework. In many of its clauses, the constitution is vague, deferring the details to legislation. But it also requires that those laws that color inside the very general constitutional lines (“laws complementing the constitution”) be passed by a supermajority. This is arguably a very salutary move indeed for a pluralist political system since it ensures that many basic laws can only be written by consensus. But in the Egyptian case, it also freezes the existing legislative framework in place until either a potentially very fractious parliament manages to summon the will to replaced it or the courts strike it down – and such a process, if it occurs, will dismantle the authoritarian wall brick by brick.
Finally, Egypt’s judicial system is dependent not only on its own integrity and judgment but also on the evidence gathered and presented by the security apparatus – an apparatus that has shown little sign of integrity and judgment in recent decades. Cases are investigated and prosecuted by the public prosecution, to be sure, and the public prosecution is a judicial body. But when various security forces turn over cases involving outlandish plots – such as the one implicating Emad Shahin – the public prosecution seems at least so far to go along with the game. And I do not see any sign of any political desire to rein in the security services now.
In sum, Egypt’s main legal problem is not what Egyptians refer to as “telephone justice” in which high officials instruct judges what to do. If that happens – and it may – I have never found direct evidence for it. The real problem is deeper: an authoritarian political order and an isolated judiciary that softens some of its rough edges but enforces other ones.
When reviewing the strange series of judgments over the past three years, it seems to me that Egypt is living French history in reverse – everything is repeating itself, the first time as comedy, the second time as tragedy. A metaphor I put forward two years ago seems even more apt today:
Egyptians have been dazed over the past few months by a welter of constitutional controversies, arcane but portentous legal struggles, and momentous judicial rulings reconfiguring the basic elements of their political system. Indeed, they might be forgiven for imagining that they have been transported to Franz Kafka’s dystopian penal colony – their carefully crafted legal machinery, designed to deliver stern but certain justice, has so completely malfunctioned that its gears and devices are incoherently and senselessly destroying the Egyptian body politic.
Nathan J. Brown is professor of political science and international affairs at the George Washington University, non-resident senior associate at the Carnegie Endowment for International Peace, and author of “When Victory is Not an Option: Islamist Movements in Arab Politics“ (Cornell University Press, 2012).