Rule of Law: Morsi and the judiciary

Egypt’s supreme court stands up to president in another sign that the rule of law has arrived outside of West.

By YONAH JEREMY BOB
Egypt clashes Judges Strike municipal building tear gas 370 (photo credit: REUTERS/Asmaa Waguih)
Egypt clashes Judges Strike municipal building tear gas 370
(photo credit: REUTERS/Asmaa Waguih)
The final outcome of Egyptian President Mohamed Morsi’s war on the judiciary is still unclear, but whether he has backed off completely or just made a temporary tactical retreat, the judiciary has strutted its power with shocking consequences, and once again in a non-Western country.
Morsi issued a decree last week which said, among other things, that the Egyptian Supreme Court could not invalidate any of his actions until the “revolution” was complete.
But on Monday, after days of a threatened nation-wide judicial strike and massive public protests, he issued an “explanation,” appearing to backtrack from the undisguised power grab.
The rise of the judiciary outside of the West is no longer a question up for debate. It is a new fact on the ground and the only question is how far it will go.
That is not to say that in most non- Western countries the judiciary may not continue to serve as the weakest branch of government – in many places merely an arm of the executive branch. But until recently, it was unthinkable that the judiciary outside of the West could be anything else.
The most notable successful and recent power play by the judiciary outside of the West was in Pakistan.
President and leader of the nation’s dominant political party, Asif Ali Zardari, had been accused of fraud.
Despite these accusations, the Pakistani government, led by prime minister Yousef Raza Gilani, initially refused to bring any charges against Zardari.
A constitutional crisis exploded in which the Pakistani Supreme Court threatened to place Gilani in contempt unless he ordered the state attorney to pursue charges against Zardari. Gilani continued to refuse and was eventually placed in contempt in April, which carried the implication that he must step down as prime minister.
The real moment of truth, though, was in June.
Gilani ignored the court’s ruling placing him in contempt and continued to act as prime minister. The Pakistani parliament refused to take any actions to oust him.
Finally, in June, the court formally ousted him as prime minister.
Instead of trying to arrest or oust the Supreme Court as prior Pakistani president Perrvez Musharraf had, Gilani stepped down.
On top of ousting a prime minister for disregarding its constitutional power, the Pakistani Supreme Court has gotten commitments from new Prime Minister Raja Pervaiz Ashraf to order the case against Zardari, even though he had not yet ordered it.
Maybe Morsi had this in mind when he issued the explanation of his decree last week that had seemingly stolen the judiciary’s powers on key issues and placed him above judicial oversight.
For Morsi, his decree had meant that his Islamist allies could, unchecked by the judiciary, ratify a heavily Islamist constitution, maintain their Islamist-dominated parliament, reopen cases against former Egyptian president Hosni Mubarak and his allies and fire the head prosecutor in favor of a more Islamist figure.
Morsi mistrusted the judiciary, as it had invalidated a first attempt by Islamists to draft an Islamist-leaning constitution and dissolved the first Egyptian parliament as being overly Islamist and unrepresentative of the people as a whole.
The judiciary had also invalidated some key Muslim Brotherhood candidates for office, other orders he had issued as president, and appeared to be ready to invalidate the second constitution and parliament as being too Islamist. Although the courts tried and convicted Mubarak, he was not put to death and six of his security chiefs got off completely, angering Morsi and many Mubarak opponents.
Morsi viewed the judges as Mubarak appointees, unelected hold-overs from before the revolution. If he could oust the military’s leaders as easily as he did a short time ago, why should a fight with the judiciary, who had no army to back them up, be a challenge? And yet, for now, he appears to have backed down.
Why is this happening? Even in more Western countries, many speculate that the judiciary gets pushed around by the other branches of government because they have national constituencies while the judiciary has none.
In Israel, the Supreme Court hears cases that could not get to a supreme court in other nations. But the court is often, though not always, deferential toward the government, sometimes allowing the state to violate its own orders for several years without taking action to compel compliance.
In the US, the Supreme Court delayed hearing cases of many controversial antiterror policies under former president George W. Bush for so many years that they eventually dismissed the cases when the original issues were no longer relevant.
The entire idea of judicial review of other branches, which many credit to the US Supreme Court case of Marbury v. Madison, was created in a case in which the court’s actual decision was not to use the power and to defer to then-president Thomas Jefferson.
Many commentators say this was a tactical move as the court was afraid that if it contradicted Jefferson’s order, he would strip them of their powers or simply ignore them, as Pakistani prime minister Gilani tried to do.
So what has changed? In Western countries, most say that over time, the rule of law became such an inseparable part of the political culture that it simply became unthinkable for a president or other leaders to disregard a judicial order.
Former US president Richard Nixon tried to do just that and found that the entire country, including members of his own party in Congress, turned against him and were ready to impeach him, and ultimately resigned.
Former prime minister Ehud Olmert tried to fend off his Jerusalem corruption trial until the end of his term in office, but was opposed by the state attorney and forced from office, though the state attorney and justice minister technically worked for him.
How is this taking hold in non-Western countries? The answer would appear to be the democratic character of the revolutions which brought the current leaders to power.
Prior Pakistani and Egyptian leaders felt no inhibition about meddling with or penalizing the judiciary if they found its actions to be a nuisance.
But these generals took power by force.
Gilani in Pakistan, and now Morsi in Egypt, despite having what appear to be some strong anti-democratic instincts, were brought to power by democratic elections and the spirit of the rule of law triumphing over dictatorships.
When the source of your power is the rule of law and public legitimacy, suddenly, if the courts are widely respected by the public, as they are in Pakistan and Egypt, a head of state’s powers to disregard them are limited.
A November 2011 International Bar Association’s Human Rights Institute report found that, despite many challenges, particularly in “emergency courts,” the regular courts were highly respected in Egypt and had significant potential. Morsi must know this as well.
Like the judicial battle in Egypt, the final outcome of this new piece of the democratic revolutions outside of the West is far from clear.
Russia and Iraq supposedly were on the path to democracy, and most would say that gradually democracy was rolled back in both places and the judiciaries returned to being non-independent arms of the executives.
Turkey still has a democracy, but many are heavily criticizing the judiciary’s current support for what many call politically-motivated trials by Turkey’s Muslim ruling party against their former secular opponents.
Also, a Morsi spokesperson’s public clarification that his original decree is only temporary and only puts him beyond judicial review regarding his sovereign powers leaves open questions.
Morsi has refused to rescind the decree completely, as many have demanded and no one knows exactly how far he will go in defining his sovereign powers. He may only be taking a tactical retreat and in three weeks or three years he may try to wear down judicial independence more quietly.
But his “explanation” and retreat from his decree on Monday was not planned and was a recognition on his part that if he continued a head-on war with the judiciary, he was likely to lose public support and possibly more.
The rise of the judiciary outside of the West has begun.