JURIST Special Guest Columnist Nathan Brown, Professor of Political Science and International Affairs at George Washington University and a Senior Associate at the Carnegie Endowment for International Peace, says that despite recent pressure by reformist judges for political reform in Egypt, judges are unlikely agents of fundamental change and their efforts are much more likely to end in compromise than transformation...
Over the past few weeks, an unlikely player has taken center stage in the struggle against authoritarianism in the Arab world: the Egyptian Judges Club. Street demonstrations, arrests of dissidents, attempts to form opposition coalitions — all the familiar signs of embryonic democratic transitions — have taken place, quite literally, just outside the country’s high court building. In the course of political conflict, some of Egypt’s leading judges have been drawn into an increasingly risky struggle with the executive branch. But judges are rarely revolutionaries, and Egypt’s judiciary is no exception: despite the international attention their stance has attracted, the current confrontation is more likely to result in compromise than democratic breakthrough.
The dispute began last year, when judges in Alexandria assembled to discuss an assault on one of their colleagues. The meeting evolved into a more general discussion of the shortcomings of Egypt’s current judicial structure and unanswered judicial demands for greater autonomy from the executive branch. Egypt’s judicial council — the central structure for overseeing most judicial affairs — already stands out from its regional counterparts for the degree of its independence from the executive and for its impressive list of responsibilities. But there are a variety of formal and informal ways that the executive branch still can affect judicial affairs, and some leading judges have sought to secure structural changes to minimize executive influence.
In this quest, reforming judges found that their adversaries were not only located in the executive branch but within the judiciary. Some judges felt that taking an overly confrontational pose would be counterproductive and indeed risked pulling judges into partisan political debates they had always sought to avoid. Thus from the very beginning, the confrontation assumed the form not simply of a contest between branches of the state but also of a division within the judiciary. Judges friendlier to the regime have dominated the judicial council, but the Judges Club — a largely social body — has a board dominated by reformers.
The quiet dispute among judges broke into public view when the Alexandria branch of the Judges Club audaciously linked its reform call with a threat to boycott oversight of Egypt’s elections. Under the Egyptian constitution, supervision of elections is a judicial responsibility, though it has rarely operated effectively. A series of court challenges — including a landmark ruling by the country’s constitutional court — has enhanced the judicial role. Judges have often been ambivalent about their role in elections. On the one hand, it stands as a marker of their neutrality. And more prosaically, they have been paid very handsomely for the role. But even with the recent changes, they have only been able to ensure that what takes place at the polling station meets minimal standards. When the security forces and ruling party act brazenly outside the polls — by arresting opposition activists, dominating the media, and beating would-be voters — judges have been powerless to intervene.
Charging that their integrity was being used cynically to support a deeply corrupt electoral system, Alexandria judges — later supported by their colleagues in the Cairo headquarters of the Judges Club — declared that they would boycott any role in the elections unless their demand for greater autonomy from the executive branch.
There was no logical relationship between the two issues of elections and judicial independence. Further, the election duty is assigned by the constitution, a document judges are loath to ignore. It therefore came as no surprise that the reformist judges backed away from their threat. But the Judges Club set up its own shadow system for monitoring and documenting electoral violations, thus keeping the conflict alive.
Past demands emanating from the judiciary — for more autonomy, better working conditions, and higher salaries — had been met through quiet lobbying. Now, however, reforming judges were no longer restricting themselves to purely judicial issues. Instead they were attacking one of the most important authoritarian tools available to the regime (such as a rigged election system); other judges challenged other aspects of Egyptian authoritarianism, including the nearly permanent state of emergency and the system of exceptional courts constructed to avoid the judiciary in politically sensitive cases.
The regime responded harshly, bringing disciplinary action against some leading reforming judges and organizing the reformists’ opponents to counter their moves. Since these measures were internal to the judiciary, leaders from the ruling party could piously fend off opposition criticisms of the crackdown on the grounds that separation of powers required that the matter be resolved wholly within the judiciary.
Thus, the reformist judges found themselves in a nasty conflict not simply with the regime but with their own colleagues — and their major allies were a host of opposition movements (including the Muslim Brotherhood) that embarrassed some of the fairly staid members of the judicial profession. But rather than try to defuse the confrontation, judicial leaders gambled that the best defense was a good offense. By accepting the public limelight, subtly endorsing public demonstrations on their behalf, and even courting international attention, the rebel leaders suddenly found themselves at the vanguard of the drive for political reform in Egypt.
This is not a role that comes easily to most judges and it is unlikely to last for long. It seems quite unlikely that judges can bear the weight of hopes that the opposition has placed on their shoulders. Their decision to embrace confrontation with the executive stems not from a calculated political strategy but instead from a mixture of impulse, moral outrage, and hope that garnering domestic support and international attention will force the regime to control its retaliatory impulses. The core demands that initiated the confrontation — involving transferring responsibilities from the Ministry of Justice to the Judicial Council, selecting some Council members by election by their colleagues, and strengthening the Judges Club — are ones that are better seen as mild reforms rather than revolutionary change. Despite the lofty rhetoric of some of the judges’ supporters, compromise or even defeat seem far more likely outcomes than transformation of the regime.
By escalating the confrontation, the judges have managed to stave off defeat, but they have also begun to threaten core regime interests—and most judges privately admit that they may therefore have to find a quieter compromise than they have led their supporters to expect.
Nathan J. Brown is Professor of Political Science and International Affairs at George Washington University and a Senior Associate at the Carnegie Endowment for International Peace