Independence Without Accountability: The Judicial Paradox of Egypt's Failed Transition to Democracy

As the Middle East is gripped with political instability and violence, Western policy makers As the Middle East is gripped with political instability and violence, Western policy makers and scholars are confounded by how populist, non-violent mass uprisings in the so-called “Arab Spring” ultimately strengthened authoritarianism in the region. In particular, what has come to be known as Egypt’s “January 25th Revolution” has produced little more than a switching of the guards in the presidential palace. While attempting to predict Egypt’s future would be a fool’s errand, there is much to learn from the past four years. For legal scholars, an examination of the Egyptian judiciary’s role in the post-January 25th aftermath is a salient and under-researched topic in comparative law that depicted a liberal judiciary – when in reality it was quite the opposite. Specifically, Egyptian judges proved to be much less impartial and resistant to accountability than the revolutionary youth had anticipated. The mass death sentences against thousands of alleged Muslim Brotherhood members, life sentences to the youth that lead the January 25th revolution for violating a dubious anti-protest law, and convictions of journalists on specious evidence put into question the legitimacy of Egypt’s judiciary in the minds of the Egyptian public and the international community. In the end, the judges’ rulings sealed the fate of the revolution. The rule of law scholarship on the Middle East has yet to take into account the impact of the momentous events of the so-called “Arab Spring” on Arab judiciaries and the role judges played in quashing the popular uprisings. For instance, the scholarship on Egypt is based largely on studies of human rights lawyers and political opposition groups in the 1990s leveraging Egypt’s highest administrative and constitutional courts to expand political and social rights. Indeed, civil society’s reliance on the courts at the time, as opposed to the streets, to restrain authoritarian practices was due in large part to the judiciary’s liberal leanings within an illiberal political context. Although Mubarak’s regime granted the court some latitude as part of a broader strategy of depoliticization that decreased the political costs of the growing predatory state, the courts’ rulings nonetheless emboldened civil society to push for more political rights. The human rights litigation that preceded the January 25th uprisings produced a protective constituency that vigorously defended the courts against overt executive interference in judicial independence. As a result, students of Egypt’s deteriorating political and economic indicators expected Egypt’s judiciary to be a bastion of support for calls for systemic rule of law reforms by the young revolutionaries, established opposition groups, and burgeoning new political parties. Because events in Egypt carry significant weight in the Middle East, a close examination of its post-Arab Spring experiences offers valuable insights into events unfolding in other Middle Eastern countries.Accordingly, this Article cautiously proceeds to examine why the Egyptian judiciary, despite its liberal rulings in the 1990s that facilitated the lead up to the January 25th revolution, ultimately obstructed the populist demands for revolutionary change. In doing so, the Article makes an intervention in the literature on rule of law in societies undergoing political transitions, and more specifically the role of judiciaries. Scholars have long stated that Egypt’s judiciary as one of the few state institutions willing to challenge executive authority and among the most independent judiciaries in the Middle East. This article challenges this position by arguing that the Egyptian judiciary opposed revolutionary reform efforts for four reasons. First, Mubarak’s concerted efforts since 2001 to quash judicial independence through coercive mechanisms imposed top-down by the loyalist judicial leadership effectively coopted a critical mass of judges. Second, the revolutionary youth and civil society failed to appreciate the judiciary’s circumscribed definition of judicial independence that did not include judicial accountability to the citizenry. Third, the judges’ elite notions of democracy viewed populism as a threat to the stability of the state and more specifically to the judiciary’s institutional interests. Finally, internal divisions within the judiciary with respect to the role of religion in adjudication coupled with longstanding suspicions of the Muslim Brotherhood as an authoritarian organization pushed judges into the arms of the military-security apparatus that sought to preserve the status quo. In sum, the judges preferred the devil they knew over the devil they did not know.