Kritarchy in Egypt?

Kritarchy is the standard, if obscure, English term for rule by judges. It might be a stretch to apply this to the present situation in Egypt, but under current circumstances it’s tempting. In case after case in recent months Egyptian courts have either made or attempted to make the most crucial decisions regarding the country’s future.

Two upcoming major rulings later this week will only intensify that pattern.

On Thursday, just two days before the second-round runoff of the presidential election is scheduled to begin, the Supreme Constitutional Court will consider a case asking them to apply the so-called Political Isolation Law to former Prime Minister Ahmed Shafiq and disqualify him from running. If they did so, the second round would be abandoned, and Egyptian voters would have to repeat the initial phase of the election all over again, but this time with 12 rather than 13 candidates.

This seems unlikely, since the court’s legal advisers have reportedly suggested that it should reject hearing the case altogether or declare the law unconstitutional. The court is not bound to follow this advice, but precedent suggests it usually does.

Even though a ruling overturning the presidential election process as it currently stands is unlikely, it again points to the pivotal authority now being wielded by the judiciary. A small group of people, elected or appointed under the former regime, stand as supreme arbiters for the fate of the nation.

An even more incendiary case is pending regarding the constitutionality of the parliamentary election law under which the new Islamist-dominated legislature was voted into power. The most important task of the present parliament is the establishment of a Constituent Assembly to draft a new Egyptian constitution. Initial efforts to do this fell to pieces when Islamists tried to stack the Assembly with an overwhelming majority.

Late last week, after the military gave the parliament 48 hours to appoint a new Assembly or cede this authority to the Supreme Council of the Armed Forces, Islamist and secular parties appeared to finally reach an agreement for a 50-50 split in a new Assembly. The military approved the deal, but over the weekend secularists again walked out of the process, claiming Islamists were still trying to usurp their seats and again secure a majority in the Assembly. Parliament seems likely to approve the new body anyway [since this article was edited, it has indeed done so], but the whole process is again in disarray and mired in deep division and controversy.

In this context, the court’s ruling on the election law threatens to make a confused situation even more convoluted. If it invalidates the process by which parliament was elected in the first place, not only would the process for forming a constitution-drafting assembly be overthrown, new parliamentary elections would be required.

All of this comes in the context of a series of earlier controversial decisions by various Egyptian courts. Among these were rulings disallowing numerous leading candidates from the presidential election on narrow technicalities and delivering a verdict in the trial of former President Hosni Mubarak and his associates that many Egyptians found offensively unsatisfactory.

The judiciary, particularly through its influential Judges Club, has also made a series of recent pronouncements that suggest it sees its role in a directly political, and indeed partisan, framework. In early May, the head of the Club issued harsh criticisms of the parliament, and implicitly its Islamist majority, stating bluntly that, “From this day forward, judges will have a say in determining the future of this country and its fate. We will not leave it to you to do with it what you want.” He accused Islamists of pursuing “a systematic plan meticulously designed to destroy this country.”

Nathan Brown has provided the most detailed English-language account of the present state of the judiciary’s role in Egypt’s political system and a useful guide to its complex structure. What these and other accounts demonstrate is that, more overtly even than the military, the court system now sees itself as a bulwark against Islamist domination of the new Egypt and the only empowered arbiter of the legitimacy of the new systems being created.

The court’s newly-asserted, proactive role (which goes far beyond what in the United States is derided as “judicial activism”) is greatly contributing to a dangerous atmosphere of uncertainty in Egypt’s transition. It’s no longer a simply question of what Egyptian voters decide for themselves, but also what the judiciary will allow them to decide.

Hopes for real democracy in Egypt are now not only threatened by the potential of a tyrannous Islamist majority secured through elections, or military rule that is either open or behind-the-scenes. It is also now being called into question by the direct intervention of judges who appear to be inspired by what can only be described as undemocratic “liberal,” or at least anti-Islamist, imperatives.