The judiciary — especially the Supreme Constitutional Court (SCC) — dominated Egypt’s political scene in the past few weeks. The SCC dissolved parliament and kept Ahmed Shafiq in the presidential race, and therefore we should make the role of the judiciary in politics part of public debate in order to regulate the relationship between the two in the future. Also, in order to prevent judges from completely siding with specific political powers. Just as the country needs to regulate the relationship between clerics and politics, it also needs consensus among various political forces about the role of the judiciary in the new political system that is currently taking shape.
The political role that the judiciary is playing right now cannot be understood without going back a few years, because the post-Mubarak political system still has some of the features of the system that was in place over the past decades. In all societies — even ones that underwent revolution — the past always throws a shadow over the present and future, because the traditions, institutions and cultures that change after revolution start at a point that is not chosen by these revolutions.
In other words, we want change in Egypt, and our brothers in Tunisia also want change, but the outcome of change in Egypt will be different from the results in Tunisia because what Egyptians want to change is different from the changes Tunisians are seeking. Therefore, those who dream of a complete severance with the past through revolution should take a look at the history of revolutions and find out for themselves that, for example, Leon Trotsky who was in charge of building the armed forces of the nascent Soviet Union (The Red Army) was forced to cooperate with the Tsar’s army generals because the army is an art and science and should be administered by experts. This means that the Soviet army carried some genes of the Tsar’s army.
The priority question that has eluded political and legal experts about the role of the judiciary in Egyptian politics under Mubarak is that in democratic regimes, the judiciary arbitrates many political disputes such as the dispute over the presidency in the US between Al Gore and George Bush in 2000. So how could a police state dictatorship like Mubarak’s regime allow the judiciary to be independent? I know that some readers will strongly protest my assertion that the judiciary under Mubarak was partially independent, but yes it was.
Evidence of this is the many rulings that overturned laws and decisions issued by the legislature and executive branch. The SCC dissolved parliament twice under Mubarak in the 1980s for the same reasons it dissolved parliament under the Supreme Council of the Armed Forces (SCAF) this week, namely that parliament did not uphold the principle of equality and equal opportunity between party and independent candidates. But the SCC had also overturned legislation to tax Egyptians abroad at the beginning of the 1990s, and when the government amended the law to avoid objections to it and re-issued it in parliament, the SCC once again blocked the new legislation.
These are just a few of the thousands of rulings against Mubarak’s governments and parliaments. Naturally, Mubarak and his government’s handling of these verdicts was selective; they upheld some and ignored most of them. He did, however, respect some rulings which is not typical of dictatorships that are known for their blatant disregard for the judiciary’s independence. No doubt, the independence of the judiciary under Mubarak was greater than under Abdel-Nasser, the perpetrator of the well-known massacre of the judiciary.
One of the answers to this paradox is put forward by Tamer Moustafa, a prominent expert on the Egyptian judiciary and a law professor in the US, who coined the phrase “the judicialisation of politics in Egypt." Moustafa argues that the SCC played a key role since its establishment in 1979 because Sadat and Mubarak wanted foreign investment. How? The economic conversion from socialism to capitalism that started with Sadat and continued under Mubarak, required guarantees to foreign investors that their property rights will be protected by the SCC. The expert quotes statements by key figures in Sadat’s regime who witnessed the creation of the SCC (such as former Prime Minister Moustafa Khalil), that highlight the economic motivations of Sadat’s regime in establishing the court.
This argument is supported by other evidence about the importance of the SCC in safeguarding capitalist transformations, such as ruling that privatisation policies were in fact constitutional. The SCC rejected a claim that privatisation was unconstitutional based on Article 1 of the 1971 Constitution, that was in force under Mubarak, that states Egypt is a socialist democratic state, and explained that the method of applying socialism differs from era to era.
However, I believe that the pivotal role the judiciary played, especially the SCC, under Mubarak was more than just reassuring investors. This is one of the ideas that I tried to prove in my book, Strong Regime, Weak State. I believe that the key role that Mubarak assigned to the judiciary was linked to his strategy of stifling Egyptian political life by pushing it into the labyrinth of the court system instead of onto the streets and at party headquarters. Also, the need for Mubarak’s regime to have a safety valve to ease political tension by giving the opposition tools to resist power in court.
This is where the independence of the judiciary played a role similar to the role of bread subsidies that are essential for political stability. Mubarak succeeded to a great degree to steer politics towards courtrooms that required the judiciary to rule on most intellectual and political disputes, such as the battle between Islamists and secularists. In fact, it reached a ridiculous extent when the Egyptian judiciary was required to punish Israeli Prime Minister Ariel Sharon after a lawyer filed a suit against the Israel official to penalise him for crimes against the Palestinian people.
The prominent political role of the judiciary in the past few weeks poses the same question: What purpose does this pivotal role by the SCC serve SCAF? The dissolution of parliament indicates that the SCC is a mechanism for SCAF to correct its mistakes and develop its strategies regarding various political forces. After the revolution, SCAF and the Muslim Brotherhood agreed on eliminating the Mubarak family, and also reached an understanding on the format of the transitional phase. This understanding was reflected in the constitutional amendments supervised by Tarek Al-Bishri, but it seems that SCAF did not expect the Brotherhood to win such a sweeping majority, nor did it anticipate that remnant ranks were fractured and disrupted to this extent. Hence, the ruling on the unconstitutionality of parliament comes as a step to correct the Brotherhood's dominance that has unsettled SCAF and other political forces.
It is too early and there is not enough information to give an unequivocal answer on these matters, but it is possible that SCAF issued the parliament election law with an understanding of its constitutional flaw from the perspective of the SCC, which has in the past dissolved parliament twice for the same reason — namely discriminating between party and independent candidates. Is it possible that SCAF’s legal advisers hid from it the fact that the law will not stand up to SCC inspection, since it has the final say on the matter? I don’t think so.
The inflated role of the judiciary in Egyptian politics today is not a sign of the rule of law but a symptom of a weak political scene that is still unable to manage the political struggle and resolve it or ease it through compromise solutions. Therefore, it is expected that the judiciary will continue to be politicised and its political role will continue to grow until the end of the transitional phase and the new political system takes shape.
There is no doubt that our judiciary is in a crisis I hope it will overcome with the least possible losses. The main political forces are pulling it in their direction, and what makes matters worse is that judges are a social group that has material and moral interests that all organised powers in the country will court to guarantee their support. There is a pressing need for the birth of a new independence trend among judges; without a judiciary that has a minimum level of credibility and independence Egypt’s democratic system will never see the light.