The Middle East Channel
Egypt’s judiciary between a tea ceremony and the WWE
Egypt’s politics since the 2011 revolution has consistently combined bare-knuckled combat with abstruse legal maneuvering, as if WWE wrestlers were attempting to operate parts of their contest within the framework of a Japanese tea ceremony. There are four major differences. First, wrestling matches and tea ceremonies last minutes and hours, but Egypt’s legal-political battles began ...
Egypt’s politics since the 2011 revolution has consistently combined bare-knuckled combat with abstruse legal maneuvering, as if WWE wrestlers were attempting to operate parts of their contest within the framework of a Japanese tea ceremony. There are four major differences. First, wrestling matches and tea ceremonies last minutes and hours, but Egypt’s legal-political battles began decades ago and show no hint of dénouement. Second, the Egyptian struggles are completely unscripted and unpredictable. Third, they matter. Fourth, their participants are focused not only on the moment but also steeped historical antecedents of today’s struggles — it is impossible, for instance, to hear a discussion of the judiciary that does not refer to an infamous judicial purge in 1969.
In order to assist befuddled observers of Egyptian politics, we have assembled this brief guide explaining the current state of play.
1. Legislative authority
Let us begin with the most abstract dispute, but also one with very significant implications: who has legislative authority before the lower house of the parliament is elected?
The Shura Council, the parliament’s upper house, is clearly assigned such legislative authority in the 2012 constitution. Or at least its members think its authority is clear.
Knowing that it might take a while to elect a lower house (the last one was dissolved in June 2012), the authors of the 2012 constitution allowed the upper house alone to exercise what would normally be the joint legislative authority of the two chambers in such situations. In fact, the constitution’s article 131 does not even describe such an authority as restricted to urgent matters (as is the case when the executive branch is granted emergency legislative authority — and some Arab courts have been surprisingly assertive in reviewing whether executive action really was needed in such cases). And just to prevent any ambiguity, article 230 also adds a specific authorization to the general one of article 131; it makes clear that the upper house (the Shura Council) has "full authority of legislating" until the lower house is elected.
So why is there any debate? Because in normal times, the Shura Council cannot initiate legislation, and some experts claim that restriction still operates. Article 101 restricts the authority to initiate legislation to the president, the cabinet, and members of the lower house. So some in the opposition, and even within the cabinet itself, have claimed that the Shura Council is now only allowed to work on laws submitted to it by those other actors. But the Shura Council rejects this reading and has been pursuing its own legislative agenda — most notably with a new judicial law, as we shall soon see.
Unsurprisingly, the issue has already gone to court, as some activists have tried to challenge the Shura Council’s actions.
And there is an even deeper dispute underlying this one: the Shura Council itself is also being challenged. It was elected in a system similar to that ruled unconstitutional by the Supreme Constitutional Court (SCC) for the disbanded lower house, so a similar case challenging the upper house’s constitutionality is on the SCC’s docket. (Indeed, speculation is rife that the upper house was attempting to rush the judicial law specifically in order to force a change in the SCC’s composition and prevent that court from dissolving the Shura Council first). The 2012 constitution seemed to do a fairly good job of immunizing the Shura Council from constitutional challenge, but Egypt’s legal order has already provided more than its share of surprises. There have been some opposition voices that have even hinted at challenging the constitutionality of the 2012 constitution, and the legality of the Constituent Assembly that wrote it is also under litigation. The SCC could accept such challenges, but it seems inclined not to, since it has already begun issuing judgments clearly accepting the authoritative nature of the 2012 document.
Finally, even if the Shura Council dodges these judicial bullets, its enactments must pass a political hurdle: all its laws must be submitted to the incoming lower house when that body is finally elected. Inaction by that chamber would effectively allow the Shura Council’s laws to continue operating. But if the lower house rejects any of them, that decision takes retroactive effect (unless the lower house decides otherwise), leading to more legal uncertainty.
2. The Judicial Law
Egypt’s judiciary has enjoyed considerable autonomy at times and it prides itself on a strong professional tradition (for more on Egypt’s maze of judicial structures click here). But Egypt’s authoritarian rulers have encroached upon judicial independence; the low water mark came in 1969 in a series of steps that purged leading judges and subordinated all judicial structures to the executive branch. Under the presidencies of Anwar Sadat and Hosni Mubarak, the most egregious of those measures were reversed but judicial reformers and their allies have been pushing for decades for the last vestiges of executive interference to be removed, primarily through writing a comprehensive new law of judicial organization.
Some new law is clearly needed after efforts to introduce one fell through in 2011, and since the 2012 constitution contains articles on the judiciary that are yet to be implemented. But it still came as a surprise this year when some Islamist parties proposed draft amendments to reform the law in the Shura Council.
Most striking among the proposals was al-Wasat’s amendments that would in part lower the retirement age from 70 to 60 years and introduce a uniform salary structure for all judicial organs. These reforms did not come out of the blue — indeed judicial reformers have called for such moves to reverse some subtle ways the old regime manipulated the judiciary. Mubarak had raised the ceiling for retirement gradually over the past two decades from 60 to 70 in an alleged effort to co-opt the judiciary as well as to extend the tenure of individual judges. And critics charged that the salary structure reflected attempts during the Mubarak years to co-opt specific bodies.
But whatever the merits of these steps over the long run, rushing them into implementation now immediately prompted charges of an Islamist attempt to instigate a 1969 style "massacre of the judges." And this may be one time the histrionic tone of Egypt’s histrionic debates may be justified. Indeed the amendment would lead to the sudden retirement of an estimated 3,000 judges (including most in senior positions) and allow hiring a new generation of judges in an environment in which security vetting can no longer be used against Islamists. The single salary structure seemed designed to pit judges against each other — for all their collective outrage against the country’s elected leadership, judges on various judicial bodies still show some sings of rivalry.
Seemingly caught off-guard with the introduction of the amendments and the fierce backlash, the presidency promised that it would freeze the debate over the law. In an effort to calm the situation President Mohamed Morsi and the Supreme Judicial Council have agreed to hold a "National Conference on Justice," to debate needed amendments and arrive at a consensus. It is unclear what the effort would yield. The first conference of the same type was held in 1986 and led to a number of recommendations that were largely ignored by the executive but have lived in in the judiciary’s collective memory. A crisis seems to have been averted for now, but suspicions remain high between the presidency and the judiciary.
3. The Prosecutor General
Mubarak’s last pro
secutor general, Abdel Meguid Mahmoud, sparked revolutionary ire and was an early target for President Morsi. There was only one problem — Morsi had no legal power to sack him. Morsi tried first to shuffle Mahmoud off by appointing him ambassador to the Vatican but Mahmoud not only rejected the offer but used it to position himself as a champion against the so-called "Brotherhoodization" of the state. A month later Morsi moved more audaciously: claiming sovereign powers, he issued a constitutional declaration dismissing Mahmoud, allowed himself the right to appoint the successor, and placed the matter beyond judicial review.
But Morsi’s appointment was struck down by a Cairo appeals court in late March in response to an appeal filed by Mahmoud. Most importantly, the court ruling curiously stated that not only Morsi’s appointment was invalid but that all of the consequences of said appointment were also invalid, opening the door for people to question the legal standing of the decisions taken by a very active public prosecutor since his appointment in November 2012. The court’s decision placed pressure on the presidency to resolve the situation, but things have only been more complicated since.
Not quite ready to lose perhaps the most strategically placed legal job in the country, the Morsi appointed public prosecutor filed an appeal questioning the court’s decision to dismiss him (since ironically enough he argues that he cannot be dismissed against his will). Abdallah has used a classic delaying technique in Egyptian courts (demanding that the judges be recused) and the dueling prosecutors have managed to tie each other in legal knots. Abadallah’s appeal is now postponed to late May and the court decision to reinstate the old public prosecutor cannot be enforced until Abadallah’s appeal is settled.
A clear compromise is possible — to have Abdallah step down, Mahmoud relinquish his claim, and the Supreme Judicial Council select a new figure in accordance with the provisions of the 2012 constitution. But even if such an outcome is eventually reached, Egyptians are likely to feel overcome by waves of bluster and legal maneuvers before it happens.
4. The Sukuk Law
Thus far the Sukuk Law is the only "success story" coming out of the beleaguered Shura Council — in fact, according to majority leader Essam El-Erian it is the first complete (and for now unchallenged) law passed since the council was granted legislative authority five months ago.
A Sakk (singular of Sukuk) is a non-interest bearing Islamic bond; the Egyptian government wishes to use the device to help fund its debt. The Brotherhood finds sukuk ideologically attractive since they are sharia-compliant in that they offer its holders a fixed share of profits instead of a fixed interest payment. But the opposition to the seemingly sharia compliant Sukuk came from unlikely sources: Al-Azhar and the constitutional text that the Brotherhood helped write.
The first draft version of the law was finalized by the ministry of finance and was sent by Morsi to Al-Azhar for review in late December 2012. Al-Azhar’s top research body first stepped in, holding an emergency meeting on New Year’s Day to express its strong disapproval of the law and of the government’s attempt to label them as "Islamic" bonds. A few days later al-Azhar’s senior council of scholars (the body that the constitution designated as the one whose opinion is to be solicited) echoed the same sentiments. Al-Azhar expressed reservations by blending religious and nationalistic reasoning (arguing along with Morsi’s opposition that the bonds could lead to the selling off of state assets to unknown investors).
The Shura Council then took up the issue under its interim legislative role, inviting al-Azhar’s representatives to a committee hearing (an offer that the institution felt was not commensurate with its august new constitutional role). So when the council passed the law, the sheikh of al-Azhar intervened to insist that something called "sukuk" needed al-Azhar’s review for its sharia compliance. Salafis, historically dubious of al-Azhar’s authority but anxious to grasp at any device to pose as truer champions of the sharia than the Brotherhood, endorsed the call as consistent with the constitution — a step akin to Protestant leaders insisting the Pope be consulted on a matter of Christian doctrine. Bowing to the constitutional arguments and political pressure, Morsi sent the law back to al-Azhar for review.
The controversy and the president’s gesture allowed al-Azhar not only to leverage its constitutional privileges but to drive the process and make its legally advisory opinion politically unavoidable. The final version of the law was finally approved on April 30 but only after a tense standoff between Azhari scholars and Freedom and Justice Party members of parliament who were openly questioning al-Azhar’s right in dictating economic policy. Ironically, the debate did not center on sharia but rather whether or not the state can issue Sukuk for public state-owned enterprises.
The final Sukuk law was signed into law by Morsi on May 8 and Sukuk projects will be open for bidding soon. But a permanent sharia committee will be set up that must approve the sharia compliance of every new Sakk issued, opening the door for possible future battles regarding the religious institution’s role in economic policy.
5. Election law
Egypt’s legal knots may begin to be untied when a lower house of parliament is finally elected. And indeed, article 229 of the constitution suggests that such an election should already have started over two months ago. But that same constitution also worked so hard to ensure to place parliamentary elections beyond legal challenge that it may have delayed them for most of the rest of the year.
Since 1985, Egypt’s SCC has four times struck down a parliamentary election law after a parliament was elected. The most recent dissolution — in 2012 — was a harsh blow for the Islamists who dominated the body (and guided the 2012 constitution to ratification). Accordingly, they took the nearly unprecedented step of requiring the SCC to review the law for constitutionality before it could be promulgated. The only time such a device was used in the past was in the March 2011 constitutional declaration for presidential elections, and the SCC at that time required the Supreme Council of the Armed Forces (SCAF) — which then held interim legislative authority — to make some changes in its January 2012 draft on the subject.
Copying the device for the parliamentary election law brought unexpected results. The Shura Council passed a law as required and the president dutifully sent it off to the SCC for review. The SCC found a number of flaws, some minor but others quite significant (such as the unequal districted size — gerrymandering and imbalances in representation have been deeply engrained in Egyptian electoral practice for nearly a century but somehow have escaped legal scrutiny). The council took note of the SCC’s objections and passed a further version, confident that this one would be immune to challenge.
Opponents charged that the repairs were merely cosmetic and that the new draft should be sent back to the SCC. Mindful that the SCAF had successfully avoided a second review, majority parliamentarians felt that they had precedent on their side and that the second draft would be the final one. But an adminis
trative court ruled otherwise, and Morsi and the Shura Council reluctantly called on the SCC to rule again. But they did not do so right away — realizing that the amendments to the law would have to satisfy the SCC’s scrutiny rather than the less discriminating eye of the parliament, the Shura Council set to work on a third version — and it is that version that is now before the SCC.
Rejection seems possible and even likely. Part of the problem is the nature of the SCC’s earlier ruling. Asked whether the first draft was constitutional, the SCC said no and provided its reasoning. The court made clear that some inequality in representation among governorates was tolerable in order to ensure that smaller areas were represented, but it insisted the apportionment in the draft was simply too unequal to countenance. While making clear what was not constitutional, the SCC did not have the opportunity to explain what threshold it would use to determine what is constitutional. It seems very possible that the law may bounce back and forth between the Shura Council and the SCC one or two more times before Egyptians are finally summoned to vote, thus adding ping pong to wrestling and a tea ceremony to the repertoire of Egyptian political struggles.
Nathan J. Brown is professor of political science and international affairs at the George Washington University, nonresident 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).
Mokhtar Awad is a junior fellow in the Middle East program at the Carnegie Endowment for International Peace.