The Egyptian judiciary is facing enormous challenges and hardships while striving to perform its essential role, not only as a judicial institution, but also as a constitutional authority standing alongside the executive and legislative branches. Its difficulties can be seen in a range of problems with which it has been struggling both before and since the outbreak of the revolution in January 2011.
The first set of problems pertains to the work of the judiciary as a professional institution, and it is most clearly visible in the process of recruiting new judges. The selection process is characterized by favoritism and nepotism rather than equal opportunity based on merit. It is important to note that such cronyism is not unique to judicial institutions, but is a pervasive aspect of the Egyptian political and administrative system as a whole. Another challenge is that of “slow justice” and inefficiency. In the Egyptian courts, there are currently nearly 20 million cases awaiting adjudication, while the number of judges is less than 9,000. The tremendous amount of legislation in Egypt is also a major obstacle for maintaining justice. Officially, there are about 120,000 laws in effect. This creates enormous difficulties for judges and citizens as they deal with a legal process that is complicated by overlapping jurisdictions as well as ambiguity resulting from poorly drafted legislation.
Another set of problems relates to the independence of the judiciary. For decades, the Egyptian judiciary has been struggling to achieve full independence from the executive branch. Examples of executive interference are many, including the authority of the president to appoint the heads of judicial institutions without regard for the principle of seniority, which is a longstanding tradition in the judiciary, as well as the wide range of authorities granted to the presidentially-appointed minister of justice. The minister has the power to intervene in the affairs of the judiciary as well as control its budget. Moreover, one of the most extreme examples of the assault on the independence of the judiciary over the past decades is the creation, by executive decrees, of “exceptional” courts used for specific cases, in addition to the practice of trying civilians in military courts. This creation of a parallel justice system has undermined the judiciary by encroaching on its jurisdiction as well as compromising the right of citizens to a fair trial and due process.
The question now is: Has anything changed? The answer is a resounding yes. Significant changes have taken place over the past two years that are decidedly negative. The judiciary is bearing the burden of the failure of politicians to address thorny political issues. Egypt has seen several political crises over the transitional period, and political parties have not yet been able to resolve their differences through negotiation and reconciliation. Instead, they have used the judicial process to attack one another inside courtrooms. The result of this partisan infighting has been to drag the judiciary into politics, thereby undermining its credibility and neutrality and fostering the perception that judges are aligned with one political force or another. This problem can be plainly seen in the April 2012 decision of the Administrative Court to dissolve the first Constituent Assembly and in the June 2012 order from the Supreme Constitutional Court to dissolve the People’s Assembly.
Hence the ongoing pre-revolutionary problems, now enhanced and joined by post-revolutionary problems, are damaging the reputation of the Egyptian judiciary and making comprehensive institutional reform an even more urgent priority. Reform always starts with the supreme law of the land: the constitution. But the new constitution, which took effect in December 2012, has not reformed judicial power for the better.
Many hoped that the new constitution would put forward a novel vision for comprehensive judicial reform. However, a reading of its text—particularly articles 168 through 178 as well as several others that pertain to judicial power—shows that no significant changes have been adopted regarding the judicial system that would improve its efficiency or strengthen its independence. On the contrary, the new constitution appears to be facilitating a blatant assault on the independence of the judiciary.
Under Article 233, seven out of 18 of the Supreme Constitutional Court justices were dismissed. The “reason” given was to simply reduce the number of justices to 11. The way this change was carried out was to retire the most senior justices rather than dismiss the most junior ones. In turn, Article 176 gives the president the right to appoint justices of the Supreme Constitutional Court at his discretion. The effect of this absolute authority on a system that should exhibit a separation of powers is obvious. The power of appointing these justices should be shared with the parliament by granting the parliament the right to confirm the president’s nominees.
Those defending the new constitution point out that the principle of judicial independence is explicitly and firmly mentioned in Article 168, which states, “The Judicial Authority shall be independent.” However, the essence of the issue lies not in the text of this article, but in the comprehensive judicial system, which is only able to carry out its functions effectively within a framework of checks and balances. It is worth noting that the democratic countries best known for strong judicial systems, the United Kingdom and the United States, make no explicit mention of judicial independence in their constitutions.
Significant challenges are standing in the way of the Egyptian judiciary’s efforts to improve its efficiency as a professional institution and to achieve full independence as a constitutional authority. The solution can begin by focusing on the three pillars of any judicial system: the judges, the law, and the system itself. The judicial appointments process must be reformed according to the principles of equal opportunity and fairness. Egyptian laws must also be comprehensively updated and revised to avoid contradiction, overlap, and ambiguity. Finally, the Egyptian judiciary must be kept away from politics, particularly from interference from the executive.
As of this writing in April 2013, the tension between the judiciary and the executive, President Mohamed Morsi, had manifested itself in two major ways. First was the position of the public prosecutor. Morsi controversially fired Abdel Meguid Mahmoud from the position in November 2012 after granting himself, via a now-rescinded decree, powers that placed his decisions beyond judicial review. He then appointed Talaat Abdullah to the post. In late March, a court reinstated Mahmoud, and Abdullah stated that he would appeal the order. The second tension was the Muslim Brotherhood’s attempt to “purge” the judiciary of approximately 3,000 judges who are over the age of sixty. The opposition saw this attempt as yet another instance in which the Brotherhood looked to monopolize the judiciary rather than reform it, though Morsi was quick to state that he “respected the rulings of the judiciary.”
Easing tensions between the judiciary and the executive branch should come in the form of enforcing the judgment delegitimizing Morsi’s appointment of the public prosecutor and the termination of the so-called purging of the judiciary. Such actions would serve as a first step toward affirming judiciary independence and establishing a rule of law by which all must abide.