April 26, 2013 | Policy Brief

The Fight for the Judiciary in Egypt

April 26, 2013 | Policy Brief

The Fight for the Judiciary in Egypt

Egypt's Muslim Brotherhood government is attempting to put over three thousand judges into retirement, in an attempt to curtail the power of the judiciary. This is not the first time the Brotherhood has squared off against the courts. The struggle began about a year ago, when the courts ruled to dissolve the Islamist dominated constituent assembly and the parliament, which, in turn, tried to issue a law to curtail the power of the judiciary.

The judiciary has been crucial to defending the rule of law since the 1952 military coup. Though judges were neither totally independent nor completely co-opted by the regime, they have a history of fighting against the regime for independence – notably in 1953, 1969, 2005, 2008 and 2012. 

Ironically, Egypt’s Islamists praised the judiciary after the legislative and presidential elections that brought the Brotherhood to power. However, as soon as the Brotherhood ascended to power, it launched a campaign to weaken the judiciary. The Islamist parliamentarians tried to change the laws that governed the judiciary. The courts, in turn, dissolved the legislature, triggering a major confrontation. 

On his first week in office last July, President Mohamed Morsi tried to overrule the court order that dissolved the parliament, but his bid was deemed unconstitutional. In October, he launched an effort to fire the general prosecutor, and eventually replaced him with a general prosecutor of his choice. The courts are currently deliberating the legality of such a move.

Morsi and the Brotherhood are now undertaking efforts to purge many of Egypt's judges. If Morsi has his way, he could also remove nine of the Supreme Constitutional Court's eleven members.  This would pave the way for the Brotherhood to appoint new ones and control Egypt’s highest court.

Among the arguments Morsi and his allies are making is that the judges appointed by former president Mubarak were illegitimate. To be sure, some judges served Mubarak’s interests, but Mubarak never fully controlled the judiciary. He had to use the Emergency Law and military courts to counter the courts.

Meanwhile, the current bill before the Shura Council is designed to lower the judges’ age of retirement to 60 years instead of 65 or 70. The Shura Council, or consultative assembly, was tasked by Morsi to act as a temporary parliament until a proper parliament is elected. Egyptians are shocked that Morsi would assign a temporary body to legislate in such an important matter. Notably, the general assembly of the Judges Club, an entity that acts as a syndicate for the judges, strongly rejected the proposed legislation as interference in their internal matters. They threatened to strike if the Brotherhood continues.

If the Brotherhood succeeds in its bid to control the judiciary against the will of Egypt’s judges, Egyptians will lack the basic civil and human rights that are sine qua non for democracy — in Egypt or anywhere.

Khairi Abaza is a senior fellow at Foundation for Defense of Democracies.