Al-Ahram Weekly Online   18 - 24 October 2012
Issue No. 1119
Published in Cairo by AL-AHRAM established in 1875

MB targets judiciary

Azmi Ashour defends the judiciary following the president's attempt to dismiss the prosecutor-general after the acquittals of those charged in the deaths of revolutionaries

When the Muslim Brothers and their allies reaped a parliamentary majority and when their candidate won the presidency, this was not solely due to their relative strengths in numbers or organisation. It also had to do with the fact that some powerful institutions remained neutral and determined to ensure the success of our country's first free and fair electoral processes. One of these institutions was the military establishment, as represented by SCAF, which was in charge of administering the transitional phase. The other was the judiciary, which supervised the polls and helped ensure their integrity. In the presidential elections, the MB was further aided by the revolutionaries and their alliances, whose votes helped tipped the scales against Ahmed Shafik, enabling Mohamed Morsi to scrape a narrow victory.

Yet, the Muslim Brothers felt no sense of obligation, not to the military establishment whose leaders they ushered into retirement in a humiliating way, or to the judiciary which has faced repeated threats to its autonomy and attempts to bend it to the MB's will. Nor have they shown gratitude to the revolutionaries. Barely had the polling ink faded from the finger tips of the activists who backed Morsi over Shafik, than Muslim Brotherhood members attacked them in Tahrir Square, where opposition forces had organised a protest demonstration on what has become known as "Friday of Accountability". That the Muslim Brotherhood members had assembled at various gathering points in the capital and elsewhere in order to be bussed into Tahrir that day strongly suggests that their disruption of the peaceful demonstrations that day was premeditated, which raises many questions concerning the eruptions of violence that have occurred since the revolution.

Not long after the revolution, around the time when they knew they had a clear shot at power, the MB's revolutionary trappings started to grow transparent, while their confrontational tactics became more apparent. Once they reached power, the institutions of the civil state came in their crosshairs for systematic destruction, after which they plan to reconstruct the state to conform to their particular ideological vision. The direction they are heading is easily discernible both from Muslim Brotherhood literature over the past 80 years and from their actions and interactions over the past months, during which they displayed their exclusivist and arm-twisting tactics in the creation of the constituent assembly and the drafting of the constitution, in stacking government offices with their supporters, and in appointments to the state-owned media. However, because of its special prestige and immunity the judiciary has proven harder to reshape in their image. The judiciary is relatively autonomous, especially compared to the executive and legislative established which, unfortunately, remain disturbingly subordinate to the president, making it difficult to detect any effective balance of powers between these two authorities, even in this post-revolutionary period.

The judiciary's ability to retain its autonomy under a president who enjoys considerable executive and legislative powers stems from a long-established legacy that rests on the independence and impartiality of its members, which reflects on the nature of the judiciary as a whole. The judge is an independent person who is guided first and foremost by his or her professional conscience, which must remain above ideological or political biases. Indeed, a judge whose judgement can be demonstrated to be tainted by such biases risks dismissal. Moreover, any hearings or other disciplinary measures taken against members of the judiciary are conducted within the judicial establishment, adding another safeguard to the judiciary's autonomy.

It is precisely because of this autonomy that the judiciary has remained one of the major cornerstones of the Egyptian civil state for over a century, during which this establishment has developed a rich and sophisticated heritage in the defence of the sovereignty of law, regardless of whether the head of state was a king or president, or whether the system of government was democratic or authoritarian.

During the past two years, this legacy has endured some gruelling tests. Prime among them was the trials of the leading figures of the former regime and, above all, the former president. This historical precedent, set by the Egyptian judiciary, put paid to the notion of "revolutionary tribunals" which are neither commensurate with the age we live in nor appropriate to the configuration of Egyptian society. It is important to bear in mind that, at the time of the presidential elections, this society was deeply split and on the verge of violent clashes. It had become apparent that the revolution had not been unanimously supported by all factions of society and that the old order still had its supporters, to which testify the extremely close election results of the two frontrunners, Ahmed Shafik, the candidate of the old regime, and Mohamed Morsi, the eventual victor. Turning to the judiciary under such fraught circumstances ensured that the trials would remain focused on criminal allegations, as opposed to factional loyalties, thereby establishing the prevalence of the rule of law and the principle of a fair trial in the post-revolutionary order.

Secondly, the judiciary played a major role in supervising the electoral processes that were held in a society that had just emerged from a dictatorship with considerable expertise in fabricating and sustaining a democratic veneer through widespread electoral rigging. Full judicial supervision during the four polling processes that were held within a year and a half after the revolution (the 19 March referendum, the People's Assembly and Shura Council elections, and then the presidential elections) gave the judges ample opportunity to let their integrity shine, and it did in the course of their outstanding vigilance against any form of tampering or foul play in the polling stations.

Thirdly, the various branches of the Egyptian judiciary established the principle of institutionalisation for the post-revolutionary period, in the course of their arbitration in the disputes between individuals, organisations or other entities in society. Perhaps the most notable case in this regard, was the Constitutional Court verdict that ruled the recently elected People's Assembly unconstitutional on the grounds that the electoral law that governed the People's Assembly failed to make adequate provision for the principle of equal opportunity. Subsequently, when the president moved to reinstate parliament, the court overturned his decision. This was not so much a demonstration of the judiciary's courage in nullifying a presidential decree as it was a demonstration of its resolve to sustain its autonomy and prestige. By showing that it was not subordinate to the decrees of the executive, the Constitutional Court's offered a sterling example of the principle of the separation of powers in action.

The foregoing underscores the institutional continuity and autonomy that have been the salient traits of the Egyptian judiciary before and after the revolution. The Constitutional Court's ruling which nullified the People's Assembly on the basis of the unconstitutionality of the electoral law was not the first of its kind. The court issued similar rulings on two occasions under the Mubarak regime.

So, what has changed?

The chief new factor is the arrival to power of the Islamists, headed by the Muslim Brotherhood, who shield themselves behind a religious ideology and an aura of piety while their opportunism and self-serving exploitation of religion exposes itself more and more flagrantly with every passing day. To the Muslim Brotherhood, principles such as the truth come a distant second to the ideology and interests of their organisation, in sharp contrast to the institution of the judiciary, which has shown itself dedicated to the realisation of the ideals of the rule of law and justice. It is little wonder, therefore, that the MB would single out the judiciary for harassment, it being one of the most formidable obstacles in their way.

Prime examples of this trend are the attempts on the part of former MPs to amend the law governing the Supreme Constitutional, the president's attempt to defy the very Supreme Constitutional Court justices before whom he had just taken the oath of office by decreeing the reinstatement of the People's Assembly that those judges had just ruled unconstitutional, and most recently, his bid to dismiss the chief prosecutor-general, which decision he was forced to retract, after which followed that charade of asking the Supreme Judicial Council to keep the prosecutor-general in his post, as though this council and not the president, had been responsible for the attempt to dismiss him.

Perhaps the question the Muslim Brothers should be asking themselves in the wake of the public prosecutor incident and the events of "Friday of Accountability" is whether or not Muslim Brotherhood doctrine and policy is tolerant and flexible enough to embrace all segments of Egyptian society. As I see it, recent developments have shown that the reality of this society is much more expansive and diverse than the Muslim Brotherhood's creed and policies, which are proving narrower and more narrow-minded by the day. The more determined they are to cling to their way of thinking the quicker they will usher in their own end.

The writer is managing editor of the quarterly journal Al-Democratiya published by Al-Ahram.

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