The Middle East Channel

Great Sanhuri’s Ghost!

Egypt's cataclysmic courtroom battles seem to be giving way to prolonged guerilla warfare over the judiciary. Attention-getting lawsuits will continue -- Egyptian judges simply see their courtrooms as places that should welcome calls for justice; Egyptians outraged by their government or their fellow citizens will continue to seek to cast their anger in legal form. Judicial anger over recent presidential actions will still simmer (indeed, I cannot remember a time when I have heard so many judges express themselves so ... well, so injudiciously). But the likelihood of a repeat of 2012's string of startling rulings is receding. That development may cause some relief to those struggling to master Egyptian law on the quick, but Egyptian politics, law, and courts are paying a price for those battles and their resolution.

The residue will be bitter indeed. Last June I sat with a friend who was an administrative court judge at the club for the State Council on the banks of the Nile. As he was speaking, he saw a boat of hungry-looking fishermen float slowly by. He beckoned them to come over, took a good portion of the meal we were sharing, and gave it to them. I remember thinking that with his generous and idealistic temperament, it was good he went into administrative rather than criminal law. I was therefore somewhat startled a month ago when I read in an Egyptian newspaper that he had been expelled from the State Council club. It was not for inviting scruffy academics or feeding fishermen. It was not even for his political role -- he had been a leader of the demonstrations in Tahrir Square in January 2011 and transgressed norms against political activity by judges in the eyes of some colleagues. But he survived that controversy without sanction. Instead, it seems that my friend, Muhammad Fuad Gadallah, had accepted a position of presidential legal advisor; his unpardonable offense was that he drafted President Mohamed Morsi's notorious November 2012 constitutional declaration placing presidential actions as well as those of the country's constituent assembly beyond the reach of the courts.

A few months before our lunch, I had surveyed the array of lawsuits on Egyptian judicial dockets and, based on whatever insight I had gained from past study of the country's legal institutions, penned a piece I called "Judicial Turbulence Ahead in Egypt, Fasten Your Seat Belts." While I might have seemed prescient, the truth is that I was still surprised at the degree to which Egyptian judges and lawsuits were thrust into the center of the most divisive issues: courts soon disbanded the constituent assembly and the parliament; judges handled trials of old regime officials and outspoken journalists; prosecutors struck; and the Judges Club regained a strident political voice it had lost years before. While there were many analyses of what occurred, my own sense was that there were far fewer black and white hats and many more gray ones than most observers believed; what struck me as well was how principles had become utterly disconnected from wisdom and judgment for most actors.

And I am now persuaded that the time may soon come when the seat belts can be taken off. Judges will remain important legal (and even political) actors, but a variety of pressures will likely rob them of their centrality.

The reasons for the likely gradual de-escalation are clear. First among them is the constitution itself. The text provides weaker guarantees of judicial independence than might have been expected, but the document's main significance for judicial affairs may simply be its existence: because it is now an inevitable part of the Egyptian legal and political landscape, any challenge to the actions of the presidency since last November has no purchase. Those who looked to the courts to stop the constitutional process or roll back Morsi's actions have lost.

Second, the restoration of parliament -- with an Islamist majority a very strong possibility -- will allow Egypt's legal order to be changed in accordance with the will of the majority. Those who do not like the ways that courts have ruled in the past will be able to shape some of the ways they rule in the future.

Third, the judiciary is less unified than may have appeared in the past two months. The end run around the courts, the dismissal of the prosecutor general, and the rushed constitutional process provoked even less politically-minded judges into outraged opposition. But as those actions recede, older divisions are likely to re-emerge. The head of the Judges Club, for instance, has been an outspoken leader in the current confrontation between the presidency and the judiciary, but many within the judiciary regard him as overly incendiary in his rhetoric and a holdover from the old regime.

Fourth, there is already a battle emerging over new entrants to the judiciary (and the public prosecution). Islamists feel (rightly, actually), that they have been excluded from these institutions. But their reaction -- to try to find ways to encourage their promising followers to choose judicial careers -- have led to understandable fears that the country's Islamist leadership may gradually "Brotherhoodize" important state institutions.

Finally, and perhaps most importantly, in the last analysis, the judiciary is a fairly conservative force. I do not mean that they are politically conservative or pro-Islamist. Some are, but they appear to be a minority (and now a mistrusted one). But most judges' conservatism is of a different nature: their job is to maintain order, not challenge it. While judges see themselves as acting in accordance with the law rather than the whim of the ruler, they also tend to view themselves as the bedrock of the state and society. When the majority of judges decided not to take part in oversight of the constitutional referendum last month, it was an unusual act of rebellion and one that I do not expect most to be willing to sustain. Some judicial actors (most notably the administrative courts and the Supreme Constitutional Court) have shown the will to take more ambitious positions on an ongoing basis, but even there I see signs of retreat to a more cautious pose.

Egypt's basic judicial structures will survive. Separation of powers will not disappear. The litigiousness of Egyptian society is not likely to be turned around, and those seeking to make a political point will continue to run to the courts. Observers will continue to be befuddled by the complexity of the system and the procedural measures followed by Egyptian courts will continue to defy simple explanation. Much will remain unchanged.

But bitterness and suspicion will likely remain and -- as my friend Gadallah's social fate makes clear -- some will be personal. In some ways the battles of the past year are echoes of early conflicts that peaked in 2005 and 2006; those battles in turn had been set off by earlier ones in the mid-1980s and most dramatically in 1969. The reverberations of today's struggles will be similarly felt for some years to come.

But the deeper costs for Egypt are subtler than personal disagreements. First, the country has missed an opportunity for a serious consideration of what role the judiciary should play in a democratic system. Egypt's judicial structures were built under nondemocratic systems; their credibility and independence rested in the past on the very uneven extent to which they could wall themselves off from autocratic rulers. But the challenge today comes from bodies (the presidency and the parliament) that have very serious democratic credentials. What institutional reconfiguration does that require? How can the judiciary be made to serve a democratic order without being the tool of any particular party (even a majority one)? These are questions that Egyptians should have discussed and decided, but instead they will have to make do with answers that that flow only from short-term political maneuverings.

Second, Egypt may have missed the opportunity to move from a narrow conception of the separation of powers (in which each branch of government is allowed autonomy within a very clearly defined field of authority) to one based on checks and balances (in which the boundaries are much less clearly defined and the branches monitor and hold each other accountable). With a parliament and a presidency possibly in the hands of like-minded political forces, the demand for robust oversight and accountability might be much greater than the supply.

For Egypt's judges, the concerns may be less tangible. With demonstrations around courthouses, politicization of judicial questions, and rampant questioning of their neutrality, they may feel instead that the real problem is that all kinds of red lines have been crossed.

Egyptian judges are acutely aware of their own history, and some have understood the current moment in terms of the 1969 "massacre of the judiciary" in which a large number of sitting judges were dismissed and President Gamal Abdel Nasser issued a series of decrees that radically diminished judicial independence.

That historical parallel is overdrawn, however. Today's farce may more closely repeat the tragedy of 1954 when some judicial bodies were participants and targets in a political confrontation that split the country's leaders and drew in opposition and independent actors. Then, as now, courts were accused of over-reaching, alignment with attempts to roll back political change; then, as now, a leading court was surrounded by demonstrators and a leading judge attacked. The events of 1954 were far more threatening and serious and the victors in that struggle far more authoritarian than today's majoritarian rulers.

The 1954 struggle's main individual victim was Abd al-Razzaq al-Sanhuri, perhaps the most influential Arab jurist of the 20th century and a man still spoken of in reverential terms in judicial circumstances. Al-Sanhuri authored Egypt's civil code, drafted constitutions and law codes for several Arab countries, and spearheaded the effort to build Egypt's State Council (which includes the country's administrative court system), a body he later headed.

It was in this capacity that al-Sanhuri developed the legal theory that allowed the leaders of Egypt's military coup of 1952 to abolish the monarchy. He did so by arguing that the revolutionary situation amounted to a complete constitutional break. Egypt's de facto rulers could not be bound by the old rules if they had overthrown those rules. But despite this useful ruling, his stature (and the potential for less genial rulings from the State Council) led to his being targeted by pro-regime mobs in 1954. Ironically, Morsi's constitutional declarations of August and November 2012 -- drafted in part by Gadallah who had come from the State Council -- relied implicitly on al-Sanhuri's earlier reasoning. But most judges would regard Gadallah as having betrayed al-Sanhuri's legacy in a very profound way. Indeed, to paraphrase what Gerald Ford said of Abraham Lincoln, if Abd al-Razzaq al-Sanhuri were alive today, he'd be spinning in his grave.

Nathan J. Brown is professor of political science and international affairs at George Washington University and a nonresident senior associate for the Carnegie Endowment for International Peace.

GIANLUIGI GUERCIA/AFP/Getty Images

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