A new judicial moment in Egypt

The paradox is stark. Vice President Mahmoud Mekky, Justice Minister Ahmed Mekky and Constituent Assembly Chief Hossam al-Gheriany — three icons of the Independence Current in the judiciary — are in the executive authority’s camp in the current constitutional crisis. Meanwhile, others who are considered part of the former regime, such as Judges Club head Ahmed al-Zend, are now defending the independence of the judiciary.

The Egyptian judiciary is going on strike for the first time in its history, a move which the Independence Current did not dare undertake. Most judges decided not to supervise the constitutional referendum. But the dilemma is that many of the leaders of the Independence Current reject such a move.

This is a watershed moment in the history of the current. It signifies its clear historic collapse.

The Independence Current’s legitimacy grew out of its call for total independence of the judiciary from the ruling authority during the Mubarak-era. Now its main icons are in power, but so far they have failed to present a comprehensive vision or launch genuine initiatives to implement what they have been defending for many years. Worse than that, they joined the president in his ploys to get rid of the prosecutor general, while practically approving his 22 November constitutional declaration designed to curtail the judiciary’s powers.

This turnaround needs an explanation.

At least part of the explanation lies in the judiciary’s structural position in society. Above anything else, judges are part of society’s “elite.” The way they are chosen, the benefits they secure, their prestige and authority — all these factors testify to the fact that in their eyes, and in the eyes of lay people, they belong to “al-hukkam” (the ruling strata).

This reflects itself in a conservative reformist mindset which prefers top-down reform. Not surprisingly, this is also the preferred method of change of the Muslim Brotherhood.

Judges prefer peaceful, rather than radical change. Before rising to power, the Independence Current icons rarely led a confrontational escalation. Perhaps the only moment of confrontation in the history of the current’s old generation was the Justice Conference which was headed by Yahia al-Refai in 1986. And this may be attributed to Refai’s courage.

Under the presidency of Zakaria Abdel Aziz, who led the club in the late 1990s and 2000s, the club became more vocal in context of the rising democratic opposition to the Mubarak regime. However, several members of the Independence Current’s younger generation told me that “the mentors of the current” disliked the confrontational methods he championed, above all the sit-in in the club’s headquarters in 2006.

Abdel Aziz may have been courageous. But he respected the prominent figures within the current. In general, patriarchalism and seniority are highly-valued among judges. Indeed, this is part of a mechanism which curbs any radical moves by dissenting voices.

The young independent judges consider Mekky and Gheriany their mentors. Loyal to their conservative reformism, these two now believe the moment has come to introduce reform from inside the regime. And the fact that these icons have joined the political authority camp has dealt a severe blow to the current and its longstanding struggle.

I am not saying that the young members of the current will no longer be active or that there will be no movements calling for the independence of the judiciary. Indeed, taking into consideration the current polarization and struggles, there will most certainly be a movement. However, this will be a completely different movement, divorced to a large extent from the historical struggles of the Independence Current.

One of the young members of the Independence Current told me that Zend was the wrong person leading the right movement. This is the dilemma that a new Independence Current will have to deal with.

That said, I expect the Judges Club to remain active. The club is unique in the fact that it is neither a civil society organization nor a social club, but rather a syndicate that brings together members of one of the state’s authorities, which makes it necessarily politicized. And that is why control of the Judges Club has been an important battle between pro-and anti-regime judges, ever since the time of Gamal Abdel Nasser.

But the club’s politics reflect wider pressures. And the fact that the icons of the Independence Current have become pro-regime, and conservative judges have become the de facto defenders of the independence of the judiciary will have a deep impact on the orientation of the club and its internal balance of forces for a long time to come.

If the constitution is scrapped in the referendum, the polarization among judges might ease a little. But that will be short-term. For the real problem will persist: a conservative and non-confrontational stratum — the judges — are the manpower of an institution where wider political and social conflicts are resolved.

Atef Said is a human rights researcher and Ph.D. candidate at the University of Michigan-Ann Arbor.

This piece was originally published in Egypt Independent's weekly print edition.

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