By Nathan Brown

Egypt’s elected Islamists have locked horns in a struggle with the judiciary that veers between full confrontation and guarded accommodation. Islamists’ concerns about the judiciary are not unfounded, but as the dominant political actors in the country today, the choice between confrontation and accommodation is largely theirs to make. Both they and various judges have used whatever tools are at their disposal in the struggle, yet if they continue to deploy them as recklessly as they have over the past few months, the country’s troubled democratic transition will end up being the biggest loser. Apparently calculating that much of the civilian opposition is either implacable or irrelevant, the presidency has focused on translating its electoral victories into a more solid position within the state apparatus. President Mohammad Mursi appears to have reached a viable modus vivendi with the military and a shakier one with the internal security apparatus. But rather than do the same with the judiciary, Mursi and his allies may be calculating that the judges are obstacles to be overcome through executive action and legislation – and a certain measure of intimidation.

 

The most audacious move in that regard – last November’s constitutional declaration – hardened positions on all sides. Within the judiciary, what had been a range of feelings about the Islamist rise – from active opposition through foreboding, all the way to accommodation – turned into a sense of mortal combat. For many judges it was less the ideology of the Islamists than their behavior that caused bitterness. In remolding Egypt’s legal and constitutional framework, the new leadership seemed not simply to recreate Hosni Mubarak’s corrupt (though less rigid) authoritarianism, but instead revert to Gamal Abdel-Nasser’s more regimented (and far less legalistic) system.

 

The two most significant areas of combat still contain routes of compromise and accommodation, though neither side has yet burned the bridges leading toward those routes. The first and most public of these battles concerns a new law for judicial organization – the basic piece of legislation that guarantees judicial independence. Ironically, the effort to draft a new one dates back almost a decade – with some even earlier antecedents – led by reformist judges who sought to remove the last vestiges of the authoritarian tools and executive encroachments built up largely during the Nasserite era. In the months after the 2011 uprising, reformist judges saw the time as opportune for reviving those efforts, but their attempts stalled when the lower house of parliament was dissolved last year.

 

But when the Islamist-dominated upper house of parliament suddenly took up the project in April 2013, judges understandably reacted with alarm, as they discovered how Orwellian the claim of championing the independence of the judiciary had become: the law would have forced most senior judges to retire – thus purging the judiciary in the guise of freeing it from the domination of older figures. Judicial positions are often concentrated among a small number of families – as are other professions – leading Islamists (who, for years, had been systematically excluded by security vetting) to jockey for a more diverse group of younger judges. Muslim Brotherhood cadres organized large rallies in support of the proposed law, and movement leaders took up strong rhetorical cudgels against obstructionist judges, thundering about domination of the judiciary by a few families. Those on the bench shuddered in recollection of earlier confrontations with the presidency in 1954 and 1969, the first of which gutted assertive administrative courts, and the second of which resulted in the purge of over 200 judicial personnel in an incident still referred to today as “the massacre of the judiciary.”

 

In a meeting with judicial leaders (though one tilted toward those inclined toward compromise), Mursi seemed to suggest a cease-fire in the conflict over the judicial law – though the precise nature of his promises remain unclear. At their most ambitious reading, he agreed to work with the judiciary to develop a law using a mechanism that reformist judges had deployed early in the Mubarak years: a nationwide conference on justice that would sketch out a consensual approach toward judicial reform and independence. But many observers worried that Mursi had simply delayed a confrontation.

 

The second battle is legally more complicated but no less portentous – that over the public prosecutor. The position is a critical one, since it oversees all criminal prosecutions and thus determines which allegations are zealously pursued and which ones are overlooked. Finding a reliable public prosecutor was one of the critical methods by which the old regime dealt with often surprisingly autonomous judicial actors. Thus, it was no surprise that any post-revolutionary government would wish to find an alternative to Abdel-Meguid Mahmoud, the Mubarak-era holdover – a determination that grew as he failed to mount effective prosecutions against old regime figures.

 

But when Mursi finally moved against the prosecutor and appointed Talaat Abdullah, he did so in a highly polarized atmosphere and resorted to audacious measures designed to allow the president to ignore existing laws and procedures by making the interim constitutional system into whatever he liked. And the country’s 2012 constitution effectively immunized those measures from any subsequent challenge – or so it seemed, at least until a judicial panel in Cairo’s Court of Appeals tasked with disputes involving judicial personnel overturned Mursi’s decision to dismiss Mahmoud.

 

Yet in doing so, the Court of Appeals appealed to a very capacious view of “supra-constitutional principles” that it claimed it was capable of discerning on its own. Not only did this cast doubt on Mursi’s authority to have issued November’s constitutional declaration, but it also pursued a mode of legal reasoning far more remarkable for its boldness than its coherence. In essence, the court advanced a claim only slightly less sweeping than Mursi’s: It allowed itself the authority to pick and choose which parts of the various constitutional edicts and provisions actually applied in this particular case, and bypass the rest.

 

Thus far, the ruling has not been implemented. It is not clear whether the presidency is ignoring it because of the court’s sweeping logic, or simply because it wishes to keep a useful prosecutor-general in office. But the sequence of events has only further deepened cavernous judicial suspicions of Mursi – ones that are very much reciprocated.

 

A compromise solution is readily available: to allow the current prosecutor to leave and select a new one according to the new constitutionally mandated procedure. Senior judges on the Supreme Judicial Council would send the name of a nominee to the president, who then makes the formal appointment. Should Mursi accept the various compromises – working out the new judicial law with the judiciary and appointing a new prosecutor-general via the Supreme Judicial Council – he would have to face down objections within his own ranks that he was capitulating to his opponents. But (more likely) closed channels of communication between the judiciary and the opposition would begin to reopen and allow Egyptians to begin climbing back from their various ledges.