Theater or Transitional Justice: Reforming the Judiciary in Egypt

When Egyptian courts sentenced over 1,000 defendants to death in the spring of 2014, and when former President Hosni Mubarak was months earlier acquitted of human rights violations despite decades of documented torture, serious questions arose about the independence of the judiciary. Of all Egyptian institutions, the judiciary’s history of resisting executive interference caused many to believe it to be the least likely to partake in such affronts to individual rights. A closer look, however, reveals that Mubarak’s efforts to curtail judicial independence successfully produced a conservative body whose top echelon supported the law and order narrative that facilitated the generals’ return to rule. As a result, legal reforms are unlikely to come from within the judiciary.This chapter argues that transitional justice did not occur in Egypt following 2011 and stood little chance of occurring for three reasons. First, despite valiant efforts by revolutionary opposition groups that triggered the January 25th uprising, a political transition never materialized. And without a political transition, transitional justice is improbable. Second, a conservative judiciary whose top echelon had been effectively coopted by Mubarak’s centralized executive played a key role in ensuring that no political transition could occur. Finally, the different opposition groups calling for transitional justice, and in effect a political transition, diverged in their expectations of what that entailed. Revolutionary groups including youth activists, labor activists, and progressives called for thick rule of law that would overhaul the legal system substantively, rather than only procedurally. As they chanted “The People Want the Fall of the Regime,” they demanded that government affirmatively improve the lives of Egyptians through distributive justice. In contrast, established secular liberal opposition groups and the Muslim Brotherhood (MB) were satisfied with establishing thin rule of law that enforced procedural protections against everyone, including the political elite. The established opposition was focused on reforming the existing legal system rather than developing new structures to redress decades of political suppression and corruption. In the end, transitional justice proved elusive, denying many Egyptians a remedy for decades of tyranny under Mubarak. In analyzing why the courts failed to meaningfully hold Mubarak era officials accountable, Section I begins by examining rule of law as a contested concept whose definition depends on the proponent’s ideological leanings. Section II proceeds to describe the restraints on Egypt’s judiciary leading up to January 25th which contributed towards its circumspect stance toward the uprising. The executive branch had put in place various structural mechanisms to restrain the judicial leadership from being led by judges acculturated and empowered to uphold the law irrespective of its impact on the executive’s power. Indeed, independent adjudication entailed prohibitively high costs to a judge’s professional and personal life, including unfavorable judicial appointments, disparate disciplining and transfers, and denials of certain promotions. The Judicial Authority Law of 1972 that governs the judiciary coupled with informal coercive tactics incentivize judicial self-censorship and voluntary compliance with executive branch expectations. Finally, Section III examines how Egypt’s judiciary impeded the transitional process through its cooperation with the Supreme Council for the Armed Forces (SCAF) and defiance of Morsi. Specifically, the SCAF’s constitutional declarations and executive decrees were consistently upheld as lawful while the Morsi regime’s actions were heavily scrutinized by a skeptical judiciary with an apparently obstructionist agenda. Indeed, the Supreme Constitutional Court issued decisions clearly aimed at handicapping a president from the long distrusted MB. Although the judiciary is not monolithic, a sufficient number of judges at the helm of a centralized governance structure, coupled with a powerful and politicized prosecutor-general, had vested interests in cooperating with the military-security apparatus to sabotage the young revolutionaries’ reform efforts and prevent any systemic restructuring of the political and economic system.