During the rule of former president Hosni Mubarak, Egypt's judiciary showed increasing activism in a series of historic rulings that were considered milestones in the development of the country's state and society. Both the administrative and constitutional courts acted as a real check on the executive, for example when the Supreme Constitutional Court repeatedly voided laws and decrees violating articles in the constitution. Many of these verdicts, for example against the election laws, forced the regime to dissolve parliament and apply the judicial monitoring of elections. The same can be said about the rulings of the Court in the economic domain, as well as on human rights. The State Council was also pivotal in asserting rights, like those to form political parties and the non-referral to military courts. The Court of Cassation many times invalidated the candidacy of elected members of the People's Assembly. Even the State Security Courts, frequently described as loyal to the regime, started to rule against the executive, for example in 1987 when they confirmed the right to strike for Egyptian workers. After confrontations with former presidents Gamal Abdel-Nasser in 1969 and Anwar Al-Sadat in 1981, the judiciary under Mubarak, to a great extent, enjoyed a relatively higher degree of independence from executive intervention. Mubarak was never dragged into open confrontation with the judiciary, unlike his predecessors. Even the famous institutional crisis of 2005-2007 between the judiciary and the regime passed with limited retaliatory measures from the regime, as Mubarak announced the withdrawal of a draft bill that had been rejected by the Judges Club. Throughout the three decades of Mubarak's rule, particularly its last decade, the Judges Club emerged as a major bulwark against the executive, represented by the Ministry of Justice, which aimed to contain rising judicial activism. Moreover, the Club's staunch opposition to the regime's repeated manoeuvres to pass laws curbing the judiciary rallied the support of regime opponents, who joined the judges in demonstrations and sit-ins denouncing executive interventions in judges' affairs. Commenting on the behaviour of the judges during Mubarak's later years, commentators Nour Farahat and Ali Sadek state that “the official judicial institution (represented by the Higher Judiciary Council) denounced everything that might affect the direct interests of judges and their official institution.” Such a sense of power felt and practiced by the judiciary was a reflection of what Farahat and Sadek describe as a new environment where “liberal values and political reform adopted in the context of democratic development do not empower the executive authority to treat judges as it used to treat them in the fifties and sixties.” In other words, there was a more permissive environment where the courts, specifically the Supreme Constitutional Court, showed a greater willingness to take up cases that challenged the regime and to rule in accordance with their definition of relative political openness. Researchers and commentators have highlighted several reasons behind Mubarak's generally positive attitude towards the judiciary, including his personal inclination or disposition towards the judges. Save for the Mubarak regime's assault on the Supreme Constitutional Court, the whole era witnessed a growing endorsement of the judges' demands in terms of the independence of the judiciary. Of equally importance, the vast majority of the judges were not domesticated by the regime's positive steps towards the judiciary and were vigilant about any form of executive intervention in their affairs in the form of laws impinging on their independence. According to many witnesses, such as expert Mostafa Al-Fiki, Mubarak by and large had a deep respect for the country's judges and respected their role and status within Egyptian society. With the help of the judicial institutions, Mubarak amended the laws governing these institutions, giving individual councils full powers to control the affairs of their members from recruitment until retirement, for example. Starting from 1984, successive decrees and laws were enacted to enhance the independence of each judicial institution. Law 35 of 1984, for example, on the organisation of the judicial institutions, restored the Supreme Judicial Council (SJC), established in 1943 and suppressed in 1969. The return of the Council gave the judiciary greater influence with the executive. Law 136 of 1984 brought to the State Council all the positive amendments stipulated in law 35 of 1984, and as a result the administrative courts started to enjoy greater control over their internal affairs. A major step towards more institutional independence took place in 2006, when an amendment to Law 142 of that year regarding the judicial institutions was enacted in the aftermath of pressure from the Judges Club. This event was referred to by some commentators, among them Mohamed Sayed Said, as the “judges revolt.” The amendments entrenched the autonomy of the judicial institutions by giving them full control of nearly all aspects of their work, including budgets. At the same time, the Mubarak regime embarked on offering judges a long array of fringe benefits, including near life-long employment and other benefits. However, the regime also went on the offensive against the Supreme Constitutional Court, undermining its independence by appointing one of its ardent loyalists, Fathy Naguib, as the Court's chair. Naguib then attempted to contain the Court's activism. Following the 25 January Revolution, a new law was enacted by the then-ruling Supreme Council of the Armed Forces (SCAF) that gave the Court's general assembly the right to select its own chair, thus ending the Mubarak regime's assault on the Court. Overall, however, the Mubarak period was an important phase in the evolution of the Egyptian judiciary and one that saw the institution better able to assert its independence. The performance of the institution in the post-revolutionary period has, however, been the subject of sharp criticism from different circles. The story of Egypt's “deep state,” of which the judiciary is supposedly an important pillar, has been one such criticism. With some judicial verdicts carrying political implications, some writers have started to cast doubt on the judiciary's role and values. The commentator Sara Aziz, in a recent report entitled “Egypt's Judiciary Co-opted” published by the Carnegie Foundation, fiercely attacked the Egyptian judiciary by stating that Mubarak based his political survival on taming the courts. This conclusion is exaggerated. The two powers, the judiciary and the executive, are essentially unequal. Moreover, any threat to the regime posed by judicial activism was one of a soft power asserting its rights as an independent institution and not aiming to bring down the regime. Judicial activism was not a political reform movement, as misperceived by some researchers, aimed at changing the state and society. In fact, historically and culturally the judiciary has been against the politicisation of the institution, or its use to achieve political gains. The verdicts of the Supreme Constitutional Court and State Council were always on policy issues and were not intended to be politicised. In her report, Aziz elaborates on the mechanisms used by the Mubarak regime to curb the rising role of the judiciary. These included “hiring more Police Academy graduates into the judiciary, vetting new hires for affiliations with the judicial independence movement or opposition groups, and assigning regime-friendly judges to cases involving the regime's core interests.” But Police Academy graduates joining the judiciary was not a new trend, and describing the graduates as regime loyalists risks stereotyping. Mahmoud Mekky, former vice-president of the Court of Cassation and later vice-president during the rule of former president Mohammed Morsi, was a graduate of the Police Academy who started his career in the Central Security Forces. Mekky cannot be described as being unconditionally loyal to Mubarak. On the other hand, the idea of vetting new hires for their affiliation with judicial independence or opposition groups has been true of successive regimes even before the 1952 Revolution, and there have always been reservations against candidates having affiliations to the Muslim Brotherhood. But even this vetting did not necessarily exclude Islamist sympathisers, among them Mekky, Gheriani Khodeiri and Genina, all of whom played a role in establishing the Judicial Independence Movement. Assigning regime-friendly judges to particular cases is claimed by Aziz as a way of guaranteeing favourable outcomes to the regime, and in this she has evidently been influenced by a controversial NGO case in which the American defendants were actually released following a judicial verdict. Moreover, in this case the supposedly regime-friendly judge recused himself from deciding the case. In other words, it is evident that the strategies argued for by Aziz are not new and have not been effective in curtailing the judges' struggle to assert their autonomy. In fact, her account of these strategies looks like an example of the commentator Nathan Brown's idea of mistakenly treating “the judiciary as if it were a creature of intelligent design by a masterful authoritarian ruler.” Aziz's remarks about the regime do not adequately trace the historical roots of what she identifies as a plan to control the judiciary. She also highlights the often paradoxical effects of policies she says were intended by the regime to lead to a more compliant institution, but in fact did not lead to this outcome. “The minister of justice appoints the presidents of the highest courts from among the judges at the appeals courts, some of whom also serve on the Supreme Judicial Council,” Aziz writes, claiming that the members of the Council are thus direct executive appointees. However, she ignores the changes stipulated in Law 142 of 2006 governing the judicial institutions. According to Farahat and Sadek, this law makes the Supreme Judicial Council's approval “imperative for the appointment of vice-presidents of the Court of Cassation pursuant to the candidacies made by the Court's general assembly, the appointment of Court of Cassation councillors, the presidents of the Courts of Appeal, their representatives and councillors, the presidents of the Primary Courts, the assistant public prosecutor, as well as the attorney general and other members of the public prosecution.” All these changes convince Aziz that the composition of the Supreme Judicial Council has been tailored by the executive to “ensure a cooperative Council and judiciary in line with the regime's core interests.” Even the new constitution of 2014, which many judges have welcomed because it assigns the role of choosing the prosecutor-general to the Supreme Judicial Council and takes it from the presidency, is not considered a positive step towards more autonomy for the Council. It is also important to mention here that the February 2014 report of the International Bar Association's Human Rights Institute commented on the Egyptian situation by saying that “there is a role for the executive — through the president or the minister of justice — in some senior appointments, but this is not per se incompatible with international standards.” An institution with the Egyptian judiciary's history of striving for independence cannot be easily co-opted or contained. Moreover, the diversity of Egypt's judges in terms of their intellectual orientations would make any attempt at co-option impossible. There have been co-opted elements and even corrupt members, but the institution as a whole has never been characterised by either. The writer is a political commentator.
