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Not in the Revolution's Name: Egypt's New Judicial Authority Bill

[Protester carrying a sign that reads [Protester carrying a sign that reads "The people want the independence of the judiciary" at a Cairo march on 9 September 2011. Photo by Gigi Ibrahim]


Amid the recurrent standoffs between the Egyptian opposition on the one hand and President Mohamed Morsi and the Muslim Brotherhood group from which he hails on the other, the opposition is often characterized as incompetent, opportunistic and unwilling to accept the outcome of democracy, in reference to the results of the elections that brought Morsi to the presidency and handed the Muslim Brotherhoods' Freedom and Justice Party (FJP) a majority in parliament.

But the policies and steps taken by the president and his party, and vigorously supported by the Brotherhood's members in a number of street demonstrations, need to be measured against core democratic principles. Morsi and the Brothers also argue that whatever measures they take, their goal is to preserve the "revolution's gains" and defeat the " forces of the counterrevolution" – those loyal to Mubarak and the remnants of his regime. 

The recent weeks have seen the opposition and the ruling party clash yet again – this time over new proposed amendments to the law regulating the judiciary, presented at the Shura Council, the parliament's upper house, by MPs from the FJP and two other allied parties. 

Morsi's proponents argue that the proposed amendments are aimed to rid the judiciary from corruption and the remnants of Mubarak regime that the revolution has sought to topple.

The Judges Club, whose leadership took over in a controversial election during Mubarak's reign, as well as longtime anti-Mubarak judges who took part in the revolution are both critical of the amendments. They both say that the amendments are aimed at empowering Morsi over a judiciary that has issued rulings at odds with the policies of president and the FJP on a number of occasions during the past year. 

While the judiciary and the laws governing its operation are in need of reform, much like the rest of state institutions, the proposed amendments do not in any clear way serve judicial independence, or the reforms long demanded by pro-independence judges since Mubarak's days.

For example, the amendments would lower the mandatory retirement age of judges from seventy to sixty, which, if implemented, would result in the immediate dismissal of about 3,500 current judges. Such a move would not necessarily result in the purging of corrupt or anti-democracy judges. Rather, it would give Morsi and the FJP the chance to ensure that Brotherhood loyalists would replace the forcefully retired judges. It is noteworthy that when former Egyptian leader Gamal Abdel Nasser tried to purge the judiciary in what became known as Nasser’s “massacre of the judges,” he toppled only a few hundred judges.

It is also easy to see that the FJP's latest moves against the judiciary are targeted at the Supreme Constitutional Court (SCC). Nine of the court's eleven judges are aged over sixty. Muslim Brotherhood members had launched a protest and sit-in against the SCC last December, preventing judges from entering the court to rule on the constitutionality of the Muslim Brotherhood-backed constituent assembly, which would later draft the constitution.

Brotherhood officials often argue that the court is padded with Mubarak loyalists. However, while some of the SCC judges are known to have been pro-Mubarak, the Court issued many rulings that defied Mubarak's policies during his reign. Under Mubarak’s leadership, the executive branch refrained from executing many such unfavorable rulings. In the late 1990s and early 2000s, then-Speaker of Parliament Fathy Sorour called for curbing the powers of SCC on several occasions. In an interview with Al Mosawer magazine on 15 March 15 1996 Serour said the SCC’s powers should be limited to censoring bills before their issuance rather than ruling on laws' constitutionality after they have been passed. Sorour also accused the court's rulings of being "confrontational." But then SCC head Judge Awad El Mor countered Sorour's argument, saying that the court's role is to ensure the supremacy of the constitution. Interestingly, "the Mubarak regime’s media used to accuse the Egyptian judiciary of being loyal to the Muslim Brotherhood when Mubarak failed to obtain convictions for Muslim Brotherhood leaders and members before civilian courts," according to the Cairo Institute for Human Rights.

The fact that the SCC is set to issue a decision on the constitutionality of the parliament's upper house, the same body that is currently debating the new judicial authority bill, is perhaps revealing. The SCC had dissolved the FJP-dominated lower house last June, suggesting that the Muslim Brotherhood's ongoing war against the courts is the manifestation of power politics rather than an attempt to address revolutionary demands for preserving judicial independence.

On a broader level, the biggest problem with Morsi and the Brotherhood’s claim that the proposed judicial “reforms” are meant to protect the revolution is that they are not the revolution's sole representative, even if they took part in it. Many other partisans of the January 25 Revolution deem the FJP-sponsored judicial reform initiative as going against the revolution's interest. Among those who oppose Morsi's posture toward the judiciary is his Justice Minister Ahmed Mekki, who quit recently. "[U]nder the slogan of 'purging the judiciary,'" Mekki wrote in his resignation letter to Morsi, in reference to the Muslim Brotherhood-led 21 April demonstrations that called for "cleansing" the judiciary, "your supporters agreed on their demand to remove me." Mekki was one of the key judges who supported the independence of the judiciary during the Mubarak era. 

Developments continue to emerge, the latest of which took place when Morsi met with top judges from the Supreme Judicial Council and promised to adopt the recommendations of a prospective conference on the justice system. But the head of the Judges Club, a key player in the crisis, had not been invited to the talks with Morsi. The heads of Egyptian judicial agencies, who attended the meeting with Morsi, are expected to participate in the preparatory sessions for the conference, scheduled to commence on 30 April. 

There is no indication yet that the crisis over the judiciary, and the disagreements between the Muslim Brotherhood and the judges, are set to end any time soon. Although Morsi has promised to support the judges' position, he has not committed himself to forcing the FJP or other allied parties to withdraw bills that propose contentious amendments to the Judicial Authority Law. The case of former Prosecutor General Abdel Meguid Mahmoud, moreover, prove that the Brotherhood's transient compromises are no guarantee that they will not become confrontational again at a later time. In that particular case, Morsi backtracked on a decision to remove Mahmoud from office and appoint him as Egypt's ambassador to the Vatican. Not long after he had retreated from that decision, he sacked him in November 2012 through a constitutional declaration.

As the Muslim Brotherhood engage in one confrontation after the other to expand Morsi's and the FJP's control over the state institution, the “revolution” as a cause is getting blurred. It is getting lost between competing Muslim Brotherhood and opposition claims that they are fighting for the sake of the revolution and in the name of the Egyptian people. And while democratic elections have brought Morsi and the FJP to power, democracy does not give democratically elected politicians a carte blanche to threaten the core democratic principle of the judiciary's independence.





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