In recent weeks, the lines between Egypt’s legal and political realm have become increasingly blurred. Controversial verdicts in the trials of Hosni Mubarak and other former regime officials have brought protesters back to Tahrir Square by the thousands. Meanwhile, the Supreme Constitutional Court is expected to issue two potentially game-changing decisions on June 14: One that could lead to the disqualification of presidential candidate Ahmed Shafik just two days before the decisive run-off round, and another that may invalidate the results of the recent parliamentary elections. Either outcome would upend the current electoral process and call into question the legitimacy of the transitional roadmap itself.  With the results of the last election in jeopardy and the status of the current presidential race in doubt, another one of Egypt’s judicial institutions – the powerful Judges Club – has taken a blatantly political stand on a run-off that judges themselves will be responsible for supervising.

On May 7, the president of the Judges Club, Ahmed al-Zend, announced that the association was abandoning its neutrality toward the coming presidential runoff in an effort to guard against an Islamist monopoly of power. In a game-changing interview, al-Zend said that if the members of the Judges Club had known Islamists would win most of the seats in Parliament after elections that ended in January, they would not have supervised the voting, and he suggested that they might refuse to oversee the run-off scheduled for June 16-17. This move is not unprecedented for the Judges Club, which has historically engaged in activism to protect the integrity of elections and confront the abuse of executive power. However in the past, the Judges Club was at the vanguard of demands for change, stubbornly confronting Mubarak’s regime, whereas the judges’ latest burst of activism is clearly aimed at preempting political change – in the form of an Islamist president—and perpetuating a status quo favorable to the military establishment.

Under Mubarak’s rule, the Judges Club deployed its leverage as a course-correcting mechanism in extreme scenarios of executive overreach, or in the presence of threats to the integrity of elections. Now it appears the Judges Club is taking such a stand once again, only this time not against the Mubarak regime, but to prevent the Muslim Brotherhood’s candidate Mohamed Morsi from carrying out what Judge al-Zend called “a systematic plan meticulously designed to destroy this country.” This is not the first time elements of the judiciary have made politically-driven decisions during the transitional period, but it is the first time judges have so explicitly endorsed their preferred electoral outcome. In this case, their denunciation of Mohamed Morsi comes off as a de facto endorsement for Ahmed Shafik.

For decades under Mubarak, the Judges Club has been a persistent thorn in the side of the regime, lobbying for the passage of a law guaranteeing the judiciary’s financial and administrative independence from the Ministry of Justice, as well as changes in the electoral system requiring that electoral commissions be staffed entirely by senior judges chosen by the judiciary. In May 2005, judges threatened to abdicate their constitutional responsibility to monitor parliamentary elections unless the regime met their demands for electoral reform.

But the Mubarak regime soon lost patience with the activist judges and cracked down later that year, successfully taming the Club with a combination of threats and material incentives for loyalty to the Ministry of Justice, which administered salary raises and other perks meant to keep the judges in line. In the years since, the Judges Club has been steadily infiltrated by establishment-oriented judges who have dampened the institution’s historical activist impulses. The current head of the Judges Club, Ahmed al-Zend, was elected in 2009 on a platform promising to restore the institution’s role as a defender of the integrity of the judiciary, a mission he felt had been compromised by political activism. Under al-Zend’s leadership, the Judges Club has taken on a more subdued character, functioning primarily as a social club and professional advocacy association.

But despite Judge al-Zend’s insistence that the newly complacent Judges Club had withdrawn from politics, its deliberate complacency in the final years of Mubarak’s rule could not have been more political. The Judges Club was simply acting in the interests of the regime by not acting at all. But now that the Muslim Brotherhood is threatening to overturn the status quo – represented by Ahmed Shafik and the military establishment –the Judges Club has reactivated its political role as an ally of the former regime and bulwark against political change.

Between the Judges Club’s endorsement of the SCAF’s preferred candidate and the controversial verdicts handed down in the trials of Hosni Mubarak and former Interior Minister Habib al-Adly on June 2 (both were given 25-year sentences, a disappointment to prosecutors who had demanded the death penalty), it would be reasonable to conclude that the judiciary is deep in the tank for Shafik, the SCAF, and the interests of the former regime. However, this would be a simplistic reading of an institution that speaks with many voices.  

Over the past few months, elements of the Egyptian judiciary have taken on seemingly contradictory roles: Intermittently reinforcing the SCAF’s agenda and transitional roadmap, while at other times making decisions that fundamentally challenge the legitimacy of the interim period. Far from a monolithic institution, the institutional infrastructure of Egypt’s judiciary has been aptly described by Nathan Brown as a “maze,” in which jurisdiction is divided among separate court systems dealing with constitutional questions, administrative disputes, military cases, and everything in between.  Given the diversity and depth of the system, it makes sense that its component institutions have often pursued opposing interests and imperatives, when weighing in on disputes in  the political realm—an area that in theory should be off-limits to the ostensibly neutral judiciary, but since the revolution has been appropriated as a platform for judicial influence over the transition.

Egypt’s judiciary has been accused repeatedly of yielding to executive interference, particularly during the controversial trial of foreign NGO employees, when the three presiding judges agreed to lift a travel ban on the defendants under pressure from the SCAF.  This blatant manipulation of the judiciary to advance the SCAF’s agenda provoked an immediate backlash: The three judges recused themselves from the NGO trial citing “uneasiness”; 285 judges signed a petition holding the head of the Court of Appeals responsible and demanding his removal; and former presidential candidate Mohamed ElBaradei called the political interference in the judicial process “a fatal strike to democracy.”

But while many judicial decisions since the revolution appear to have been molded by executive pressure, at other times the courts have spontaneously seized opportunities to make game-changing political decisions at their own initiative – such as the April 10 administrative court ruling that disbanded the Islamist-dominated constituent assembly. On June 14, the Supreme Constitutional Court (SCC) is expected to decide the fate of Ahmed Shafik’s disputed candidacy – just two days before the run-off election – as well as the validity of the recent parliamentary elections. The SCC’s decisions in these two cases will inevitably be influenced by the judiciary’s institutional interest in protecting its own legitimacy. The judiciary has been put on the defensive by widespread criticism of the verdicts in the trials of Hosni Mubarak and other former regime officials, viewed as too lenient by many Egyptians. A decision upholding Ahmed Shafik’s candidacy – by striking down a disenfranchisement law that would bar former regime members from running for office – would take a toll on the judiciary’s already vulnerable reputation.

Last week, Judge al-Zend issued a stern warning to critics of the Mubarak verdict: “When you cross the line, we will break your legs.” If it comes down to a choice between defending the interests of the SCAF and former regime or protecting its own reputation, the judiciary – like any self-serving political actor – will save itself.

Mara Revkin is the editor of EgyptSource. 

Photo Credit: Washington Post