The judiciary has been a key battleground in Egypt's post-Mubarak political transition, during which the executive branch has been challenged repeatedly through legal avenues. These challenges often took the form of lawsuits disputing Morsi and the Muslim Brotherhood-dominated parliament, which was dissolved in June by the Supreme Constitutional Court. Another option available to judges is to boycott participating in overseeing polls — a move that would delegitimize the vote and thus hurt the government, which desperately wants to pass the constitution.
The executive has fought back. Since his election, Morsi has challenged the judiciary on several occasions. Just a few days after assuming office, Morsi tried but failed to reverse the Supreme Constitutional Court ruling that dissolved parliament. Mekki has threatened to purge the judiciary of Hosni Mubarak-era judges. An effort in early October to dismiss powerful Prosecutor General Abdel Meguid Mahmoud and name him ambassador to the Vatican likewise failed.
Morsi and Prime Minister Hesham Kandil have also placed judges in the Cabinet. For example, Mekki is a prominent former appeals court judge known for challenging Mubarak. His brother, newly appointed Vice President Mahmoud Mekki, is also a former judge.
In addition, the executive may be trying to exploit fissures within the judiciary. The prosecutor general is appointed for life — some judges fear that his removal would have set a precedent that could be extended to other judicial appointments. Other circles of judges questioned the appointments-for-life rule, suggesting that younger judges want to rise into positions long held by an older generation. The president used a similar maneuver in August, when he played on factions within the military to retire or reassign several senior military officials.
Dissenting Opinions
As the dissenting opinions on the appointment-for-life rule suggest, the judiciary is far from united. It constitutes several court systems with varying mandates. One group of courts, which includes the Court of Cassation, deals primarily with civil and criminal cases and parliamentary electoral disputes. The State Council courts, including the Supreme Administrative Court, handle all matters involving a state entity, such as a ministry. There are also military courts, which operate under emergency laws, and State Security courts; their jurisdiction is outside the regular judicial system. Moreover, there are family courts and religious courts.
The president appoints all civilian judges, and as noted, the appointments are for life, or until retirement (usually at age 64). Notably, the Supreme Judicial Council, the official judiciary body responsible for overseeing judicial appointments and promotions, recommends the judges.
The various court systems lend themselves to political divisions. The Judges Club, an official syndicate and socio-political group representing several cities, traditionally has challenged the state. In 2005, the Judges Club led a revolt in which participants demanded oversight of elections; the government eventually acquiesced. But after Ahmed al-Zend took control of the Judges Club in 2009, the group became more conservative, choosing to cooperate more with the Mubarak regime.
Indeed, since Mubarak's ouster, the Judges Club has supported the Supreme Council of the Armed Forces. With a membership of more than 1,500 judges, it is the largest and most vocal critic of the Muslim Brotherhood. In fact, the group has openly criticized the Muslim Brotherhood and clashed with the previous parliament until it was dissolved.
Other judicial groups are more sympathetic to the Islamist-led regime. A rival of the Judges Club, the Judges for Egypt, is pro-reform and generally has supported the Morsi government. Led by former Judges Club leader Zakaria Abdel Aziz, the Judges for Egypt has only 300 members. The State Council Club also seems to favor the new government. It is estimated to have more than 1,000 members, and three of the five judges on the Constituent Assembly, including leader Yehia El-Dakrouri, are connected to the State Council Club.
Notably, while these judicial groupings tend to represent competing trends, there is a strong desire for judicial independence on all sides. The judiciary has issued several rulings that support the Supreme Council of the Armed Forces, but it is by no means an agent of the military. Even the Judges Club, which generally supports the military council, acts independently to further its own agendas. While there are also questions as to the presence of Islamists within the judiciary (their presence was barred under Mubarak) it is unclear how deep Islamist support runs or to what degree it would favor the executive.
Meanwhile, rivalries run deep among these various systems and clubs, and they do not always involve the judiciary's relationship with the government. For example, some 30 judges affiliated with the State Council Club did not oversee the 2011 parliamentary elections because favorable polling station assignments were given to rivals in the ordinary courts.
Greater Independence
Competing views of the role and independence of the judiciary abound. Al-Zend and Mekki each have put forward Judicial Authority Law drafts, which would legislate appointments and other issues. It will need to be approved by parliament and will likely be a main point of contention once a new legislative body convenes.
Ultimately, the dispute over the constitution is only the latest in a series of bouts between the Islamist government and factions within the judiciary, which has proved to be more adept than the armed forces in limiting the Islamists' rise to power. For this reason, the executive branch believes it must curtail the power of the judicial branch.
Negotiations are ongoing because neither side wants a crisis. On Nov. 12 and Nov. 13, judicial representatives met with members of the Constituent Assembly to discuss the draft articles pertaining to the judiciary. The Judges Club has demanded that it be the one to draft these articles and objected to articles that limited the prosecutor general to a single four-year term. Overall, the judiciary is seeking to limit the executive and legislative powers from authority as regards judicial appointments, promotions and other administrative matters. It is also trying to achieve greater judicial independence.
Reaching agreement on the provisions will be key to the judicial ruling on the legality of the Constituent Assembly. It will also help determine how much independence the judiciary has in the future. After the 2013 legislative elections, the Muslim Brotherhood will try to insert pro-Brotherhood allies into judicial entities to erode the power of groups like the Judges Club. The conflict between the Brotherhood and the judiciary is far from over.
