Who really calls the shots in post-revolution Egypt?
Power struggles are raging in the newly democratic republic as the government works toward the establishment of a permanent constitution. The battle is typically framed as one between the Supreme Council of Armed Forces (SCAF) and the Islamists of the Muslim Brotherhood, led by newly the elected president, Mohamed Morsi.
But there is a third major player whose machinations often fly under the radar: the courts. In the end, their strength could be the deciding factor in Egypt's post-revolution tug of war.
In an ideal world, the judiciary branch of government protects the rights of minority citizens -- people like Fady Eid, 27. He works in the town of Dahab, which is on the southeastern coast of the Sinai Peninsula. Because he lived in Cairo before the revolution, he was unable to vote in the presidential elections due to rules requiring citizens to vote in their hometowns.
Eid, a Coptic Christian like 10 percent of the Egyptian population, is now deeply distrustful of the new president and the Muslim Brotherhood. As a member of a minority group, he worries that a majority-ruled democracy would curtail his rights.
"As to who can protect the Christians, I can tell you that there is no protection here," he says. "They are mixing religion with politics."
Will the courts be on hand to make sure that the rule of law is carried out fairly across Egypt, for Eid and everyone else who shares his concerns? At this point, there are no easy answers.
The Egyptian judiciary system is positively byzantine, and it's been that way for decades. But in order to understand Egypt's tumultuous revolution, it is necessary to answer some basic questions. What, exactly, are the courts? Who are the power players in the judiciary system? And how do they approach the monumental decisions that will determine the very fabric of Egyptian society from here on out?
Egypt is chock full of courts: all different levels, all kinds of jurisdictions. You've got the military court, the court of cassation, the security courts and the judicial council, to name a few.
But when it comes to the really big decisions, there are two judicial institutions that stand out for the scope of their power: the State Council Supreme Administrative Court and the Supreme Constitutional Court, or SCC.
Nathan Brown, a Middle East expert at the Carnegie Endowment for International Peace, explains the major difference. "The administrative court tries concrete cases; the constitutional court, in a sense, tries laws," he says. "There has to be a concrete case to spark a dispute in an administrative court, but as soon as it's no longer a question of who's guilty or not guilty, the issue will be referred to the constitutional court."
The SCC, then, has ultimate power -- but only if a case makes it to that level. The administrative courts typically get first dibs, and they often take matters into their own hands as they see fit. Under this system, they also have significant control over the timing of a decision -- which, as we'll see, can be very important.
Men of Mystery
It is defensible to argue that the SCC is the most influential institution in post-revolution Egypt. And if that's the case, the man who leads it might just be the country's most powerful person.
Not only does the SCC chief lead Egypt's highest court; he is also automatically appointed to head up the Supreme Presidential Election Commission, which presides over the administration and final vote-tallying of national presidential elections.
Until recently, that man was Farouq Sultan, whose fifteen minutes of fame came last month.
Sultan was the one to officially announce the outcome of the presidential election. A crowd of citizens gathered in public squares across the country to listen in as he revealed the long-awaited results. Cameras from virtually every major international news outlet were fixed on Sultan as he began his preamble, facing a room full of reporters.
And what a preamble it was. For a full 45 minutes, Sultan was the most annoying man on earth.
No one had been expecting him to describe every hiccup in the vote-counting process -- complaints, frauds, appeals, disqualifications, et cetera -- but that's exactly what Sultan did. A collective groan spread from Tahrir Square to Twitter as he shuffled through page after page of extensive notes.
Finally, the SCC chief announced that Morsi had emerged victorious against Ahmed Shafiq.
That wasn't the only time Sultan was the object of national ire. He ascended to the SCC's top spot three years ago -- and he was appointed by then-President Hosni Mubarak. Reformist judges cried foul, arguing that Mubarak, who was expected to run for another term, should not have been allowed to appoint the man who would administrate the next the presidential election.
But Sultan, a regime ally who had worked with the military judiciary, kept his post. So did the four other Mubarak appointees who were simultaneously selected to lead the rest of Egypt's most powerful courts.
The end of Sultan's tenure came on July 1 of this year, and the transition saw surprisingly little fanfare despite the importance of the position. The man who took his place was a veteran SCC judge named Maher al-Beheiry.
And what do we know about him? Not much, explains Brown.
"Beheiry is an unknown, and the reason he is an unknown is that when the court issues judgments, it does so in the name of the entire court. So nobody knows what individual judges are like, unless they talk."
It's been less than a month, and Beheiry has barely said a word so far. But this little-known man has a giant share of judiciary power, and so his behavior in the coming months warrants serious scrutiny.
Nature of the Beast
In light of some of the courts' recent rulings -- most notably the dissolution of the Constitutional Assembly and the lower house of Parliament -- it may seem that Egypt's judges tend to ally with the SCAF, at the expense of Muslim Brotherhood politicians who took the lion's share of the popular vote.
But the reality is not so straightforward. Many court judges were vocal opponents of the Mubarak regime even before the revolution, while others were staunch supporters.
"The judiciary as a whole has always had the hallmark of independence," says Brown. "But one of the ways the [Mubarak] regime would deal with it was that they had a few reliable judges they could call on, and they would plunk them down into prominent positions for special cases."
Sultan's 2009 appointment comes to mind. But in that case and many others, reformist judges weren't afraid to voice their opposition.
Today, Egyptian judges certainly seem resistant to democratic change. But that might have little to do with regime sympathies or military allegiances -- in fact, the judiciary's fatal flaw could be that it has rather too much independence.
That's exactly how Eid sees it. "The courts are just trying to stay in power," he says. "They want to save their jobs and save their position."
That's nothing new; the Egyptian court system has long occupied a uniquely powerful position in domestic politics. The administrative court, for instance, has the right to review the implementation of its decisions. It also rules over state enterprises. Under Mubarak, it posed a major challenge to the president's own changing economic policies. And after his ouster, the court dissolved the regime's political party in a broadly-worded decision -- one that could have dangerous implications if Egypt were committed to upholding legal precedents.
"The court doesn't have a good way of thinking about the political implications of their actions," explains Brown. "They'll sometimes issue sweeping rulings, looking at the bare text of the law."
That's a little ominous, especially considering the apparent hubris of the judiciary these days.
"Some judges are suspicious of Islamists particularly, but in general the judges are suspicious of the people and of the democratic procedure. They regard themselves as experts, above criticism by parliamentary institutions."
The Niggling Details
Court rulings since the revolution certainly show that Egypt's judges have been somewhat cavalier about ruling against popular opinion. Looking back, it's surprising how many of their huge decisions can be reduced to seemingly minor technicalities.
The first major controversy came in April, when the administrative court suspended the body that had been charged with drafting Egypt's new constitution. That case was brought on behalf of liberal groups who argued that the constitutional assembly, which was appointed by the elected parliament and was therefore composed mostly of Islamists, was not representative of the population. In the end, the group was disbanded for more technical reasons: it contained MPs, and the court decided that the interim constitution did not allow for parliamentarians to be included in the assembly.
Though many revolutionaries were happy with this verdict, it meant that the constitution was left unwritten and the scope of executive power was left unspecified even as presidential elections progressed.
And here again, the court stepped in.
Just days after the constitutional assembly was disbanded, ten of the 23 contenders for the Egyptian presidency were barred from running. The election commission -- not technically a court, but headed by SCC Chief Judge Sultan -- cited a diverse litany of legalistic disqualifications.
Among those struck from the ballot were several potential front-runners: Omar Suleiman, formerly of the Mubarak regime; Khairat el-Shater, the Muslim Brotherhood candidate; and Hazem Abu Ismail, a hard-line Islamist.
Then came June, and the Egyptian public once again looked to the judiciary -- the criminal courts, this time -- for the long-awaited sentencing of Mubarak. The ousted president was convicted of participating in the killing of protesters during the revolution, and he was sentenced to life in prison. But many angry Egyptians demanded execution, arguing that the punishment was too light -- especially since several senior security officials implicated in the violence had been acquitted. The court cited a lack of evidence.
And then came the biggest judicial move of all: Last month, just before the dramatic runoff election between presidential hopefuls Shafiq and Morsi, the SCC ruled that the parliamentary elections had been unconstitutional. Almost immediately, the entire lower house of parliament was sacked.
Some called this a military coup, since the SCAF was quick to take advantage of the court's decision. But in this case, the judiciary was the first to act. The SCAF locked the doors to the parliamentary building, but the SCC had provided the deadbolt.
At the heart of the decision was a legalistic electoral issue -- put simply, the court decided that independent candidates had not been given a fair shot in January elections. Those independents were at a disadvantage due to a rule change that the SCAF had permitted, which allowed major parties to contend for all seats. And interestingly, that rule change had been implemented in order to prevent regime allies from gaining undue influence.
Details aside, the point remains that Egypt's popularly elected legislative body has been gutted, and Morsi lost a subsequent power struggle when he tried and failed to decree a reconvening.
Eid, who does not support Morsi, was happy to see this turn of events. "Morsi tried to reverse the decision of the court and get back to the old parliament -- but he couldn't. To most of the people here, Morsi is just decoration. He can't appoint a new government."
Those who elected the president, on the other hand, are feeling increasingly powerless.
And On And On
So what's next for Egypt? There is no lower house of parliament, no public trust in the still-powerful military, and no set guidelines for Morsi to follow as Egypt's post-revolution president.
As the judiciary freewheels through this power vacuum, there is one upcoming development that might just bring some order to the court.
Egypt needs a permanent constitution. The current interim document is saddled by a recent addendum; in June, just before the presidential election, the SCAF inserted a new decree that gave the generals inordinate power over both the executive branch and the drafting of a new constitution.
And that's something Egypt will have to live with. On July 19, the administrative court dismissed a case that challenged the legitimacy of the SCAF's amendment.
"The court ruled that it did not have jurisdiction -- that when it comes to fundamental constitutional documents, those matters aren't for the court because the military is still in control of the country," explains Brown.
"What the court did, in this elliptical legalistic way, was to essentially bless, or entrench, the military's transition plan."
But here's the good news: As of June 7, Egypt now has a new constitutional assembly. Like the last one, this body includes members of the lower house of parliament -- but because parliament has since been dissolved, a repeat dissolution ruling wouldn't be so cut-and-dry.
On July 19, the administrative court deferred until July 30 a decision regarding the constitutionality of this new constituent assembly, at which point the whole case could be referred to the SCC.
And here's how the administrative court's control over the timing of a decision may become instrumental: their postponement means that the current constitutional assembly still has some time to draft a document.
And now, it's racing against the clock.
If the diverse members of this new assembly can agree on a constitution that will work for all of Egypt's people, that might give them some leverage in the event that the SCC takes up the case against them.
With a little luck -- or maybe a lot -- Egypt could have a new constitution ready for a public referendum within a few weeks. To be sure, there are plenty of legal loopholes through which the courts could wage an attack against the assembly, and the military will certainly play a major role in steering the adoption process. In short, constitutional progress is certain to be anything but smooth.
But in this chaotic atmosphere, anything resembling a solid set of parameters would be a major boon for Egypt as it stumbles toward lasting stability.