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A conflict is developing between the Egyptian government and the judiciary as the deadline for drafting the nation's constitution approaches. Through the election of Mohammed Morsi in June 2012, the Egyptian Muslim Brotherhood gained control of the executive branch of Egypt's government. The group now wants to gain control over the legislature, but to do so, it needs the judiciary to rule in favor of the legality of the Constituent
Assembly -- a step that would legitimize the constitutional draft before it goes to referendum and lay the ground work for parliamentary elections in 2013.
The judiciary is large and multifaceted, so the government is trying to overtake it through divide and conquer tactics, exploiting rivalries and factions among its numerous groups. In a move meant to separate one faction of judicial leadership, Justice Minister Ahmed Mekki on Nov. 11 announced that judges would supervise the national referendum to approve the constitution. The previous week, a powerful judges' syndicate warned that judges would boycott the referendum if no agreement were reached on articles in the constitution related to the judiciary.
The 100-member Constituent Assembly is due to approve a final draft by Nov. 20; the national referendum will take place shortly thereafter. The ruling on the Constituent Assembly and the national referendum on the constitution will be a key test in the balance of power among the judiciary, the executive and the legislative branches of government.
Analysis
The judiciary has been a key battleground in Egypt's post-Mubarak political transition, during which the executive branch has been challenged repeatedly through legal avenues. These challenges often took the form of lawsuits disputing Morsi and the Muslim Brotherhood-dominated parliament, which was dissolved in June by the Supreme Constitutional Court. Another option available to judges is to boycott participating in overseeing polls -- a move that would delegitimize the vote and thus hurt the government, which desperately wants to pass the constitution.
The executive has fought back. Since his election, Morsi has challenged the judiciary on several occasions. Just a few days after assuming office, Morsi tried but failed to reverse the Supreme Constitutional Court ruling that dissolved parliament. Mekki has threatened to purge the judiciary of Hosni Mubarak-era judges. An effort in early October to dismiss powerful Prosecutor General Abdel Meguid Mahmoud and name him ambassador to the Vatican likewise failed.
Morsi and Prime Minister Hesham Kandil have also placed judges in the Cabinet. For example, Mekki is a prominent former appeals court judge known for challenging Mubarak. His brother, newly appointed Vice President Mahmoud Mekki, is also a former judge.
In addition, the executive may be trying to exploit fissures within the judiciary. The prosecutor general is appointed for life -- some judges fear that his removal would have set a precedent that could be extended to other judicial appointments. Other circles of judges questioned the appointments-for-life rule, suggesting that younger judges want to rise into positions long held by an older generation. The president used a similar maneuver in August, whenhe played on factions within the military to retire or reassign several senior military officials.
Dissenting Opinions
As the dissenting opinions on the appointment-for-life rule suggest, the judiciary is far from united. It constitutes several court systems with varying mandates. One group of courts, which includes the Court of Cassation, deals primarily with civil and criminal cases and parliamentary electoral disputes. The State Council courts, including the Supreme Administrative Court, handle all matters involving a state entity, such as a ministry. There are also military courts, which operate under emergency laws, and State Security courts; their jurisdiction is outside the regular judicial system. Moreover, there are family courts and religious courts.
The president appoints all civilian judges, and as noted, the appointments are for life, or until retirement (usually at age 64). Notably, the Supreme Judicial Council, the official judiciary body responsible for overseeing judicial appointments and promotions, recommends the judges.