Egypt’s President versus Egypt’s Judges

Mike Giglio reports on the war between Egypt’s government and judges.

Egyptian Presidency/AP, file

In the late 1960s, Gamal Abdel Nasser, the hero of the revolution against Egypt’s monarchy who became the country’s authoritarian president, was struggling to bend the judiciary to his will. With a series of decrees, he swept more than 100 uncooperative judges from office and enacted measures to bring the troublesome institution under his thumb. The event, known as the “massacre of the judges,” is infamous in Egypt—and opponents of the country’s current president, Mohamed Morsi, are sounding the alarm that another so-called massacre may be on the way.

Morsi has been locked in a bitter fight with Egypt’s judges since taking office last June. He and his supporters have charged the justices with counter-revolution, accusing them of plotting to bring back the old dictatorial regime. And the war of words has lately spilled over into the streets. On Friday, with the Muslim Brotherhood, the powerful Islamist group that backs Morsi, leading the call to protest, thousands of demonstrators descended on the High Court in downtown Cairo, calling angrily for the judiciary to be “purged.”

In the background, meanwhile, Morsi’s allies in the legislature have been considering a controversial bill that would lower the mandatory retirement age for judges by a decade. Egypt’s main opposition coalition claims that this would force some 3,000 judges off the bench, and while the true number is unknown, analysts say the move would leave a vast number of seats for Morsi’s government to fill.

The judges, for their part, have refused to bend—continuing to present legal challenges to Morsi’s actions in office, and even ordering the arrest of his prime minister last week for failing to enforce an earlier ruling. On Tuesday night, a leading association of judges called an emergency assembly on the crisis, while on Sunday, Morsi suffered a surprising blow when his justice minister offered his resignation, citing both the Friday protest and the proposed retirement law. “The presidency thinks the judiciary is out to get them, and it’s almost a self-fulfilling prophecy,” says Nathan J. Brown, an expert on Egyptian law at George Washington University. “At this point, things have spiraled out of control.”

Tensions between the Muslim Brotherhood and the judiciary have been simmering since June, when Morsi was on his way to becoming Egypt’s first democratically elected president. Though the judiciary was held up as an icon of independence during the revolution, many judges seemed alarmed by the growing power of Egypt’s Islamists, who had won nearly 70 percent of seats in the lower house of parliament in elections earlier that year. Within days of the presidential poll, the High Court shocked the country by annulling the parliament based on technicalities. Egypt has struggled to hold new elections ever since.

The move threw the country into chaos, and it has fueled charges from the Muslim Brotherhood and others that the judiciary harbors dangerous remnants of the old regime. “I think some of the judges are the bad guys,” says Maha Azzam, an Egypt specialist at Chatham House in London, adding that the judiciary is in dire need of reform. “It’s a mixed bag, definitely. You have very honest and independent justices, but many were really part of the old regime, and they’re resisting [reform efforts].”

Many judges, Azzam adds, “don’t want to see the emergence of a strong Islamist-leaning government.”

Most judges were indeed appointed by Morsi’s predecessor, former dictator Hosni Mubarak. But Brown, of George Washington University, notes that the judiciary traditionally exercised a large degree of independence during Egypt’s decades of authoritarian rule. Under Mubarak, the judges could even be a rare force for dissent. In 2005, for example, some justices launched what was called the “judges’ intifada,” which challenged rigged elections and called for greater judicial independence. “The way the judicial system worked under Mubarak, they had considerable autonomy,” Brown says. “To regard the entire judiciary as nothing but Mubarak holdovers and people trying to bring the old regime back is just not true.”

In November, Morsi hit back hard against the judges. Fearing that a court was about to dissolve the Islamist-dominated assembly drafting Egypt’s new constitution, he issued an executive decree that temporarily placed him above judicial oversight—allowing him to push the Constitution through the assembly and replace the state prosecutor. The move was hugely controversial, sparking mass protests. Many judges went on strike during the subsequent constitutional referendum, refusing to oversee the polls.

The judiciary’s defenders, including much of the opposition, paint it as a crucial bulwark against what they call Morsi’s growing monopoly on power. And they contend that the government’s campaign against the justices is motivated more by politics than a desire for reform. Ziad Abdel Tawab, the deputy director of the Cairo Institute for Human Rights Studies, says that the retirement law, like last Friday’s protest, fails to distinguish between upstanding judges and allies of the old regime. Both groups, he says, “are being attacked at the same time.”