This is hardly a week when we need to be reminded that judges and, in particular, Supreme Court justices, have a profound impact on politics. While the current court may seem extreme in its willingness to enter the political fray on immigration and health care, it is not a new charge: High courts around the world have been wreaking havoc on their countries’ political systems for a long time.
The obvious fact that judicial systems are an essential aspect of democracy is all too visible in Egypt today. It turns out that the third branch of the Egyptian government had a different take on all the euphoria over Tahrir Square. If the actions of the Egyptian military merely hinted at the old adage that power, once captured, is rarely relinquished, the Egyptian courts have proven it. And the mess in Egypt presents a question for international organizations that support judicial reform in post-conflict countries: What if the problem isn’t that there is no capable judiciary but, actually, that the judiciary is utterly, and frustratingly, capable?
In Egypt, until a few weeks ago, all the attention was focused on whether the parliamentary and presidential elections would swing in favor of the Muslim Brotherhood or the remnants of Hosni Mubarak’s regime. Americans are intrigued by a horse race, particularly if electoral sentiment steers toward an Islamic party. But we all got a little ahead of ourselves, assuming that voting was the sole manifestation of progress.
There were hints for the last 18 months that Egypt’s judiciary was going to be an obstacle to reform. But when the verdict in the Mubarak case found him guilty for the relatively passive offense of not stopping violence against protesters, as compared to the greater offenses of responsibility for shooting protesters or the serious human rights abuses during his reign, the fallacy that independence from Mubarak meant independence from his legacy became very clear.
And if that wasn’t obvious by then, Egypt’s Supreme Constitutional Court left little doubt this month, when it literally dissolved the entire parliament, supposedly because the balloting disfavored former regime officials. The ominously named Egyptian Judges Club — the equivalent of an Egyptian bar association — continued blasting the Islamic-led legislature. It was at that point that many international observers lost interest in who would actually win the presidential election.
What if the problem isn’t that there is no capable judiciary but, actually, that the judiciary is utterly, and frustratingly, capable?
Elections, it turns out, may not be the most essential aspect of political reform. Having a fair and honorable judiciary might be. However, America’s diplomatic efforts continue to focus on voting: whether and how it is done, as if democracy were just about electing legislatures and presidents.
The judicial coup in Egypt is making policy makers think again. For years, under the radar, the international community has placed a high priority on training programs for judges, recognizing that an independent judiciary is a significant aspect of nation building. But this was always in the context of building something from nothing.
“What is happening in Egypt is just proof that while elections are necessary, they are simply an insufficient barometer for change in many of these societies,” says Bradley Bosserman, director of the Middle East Initiative at NDN, a Washington think tank. “Judges are part of an ecosystem and serve as a key pillar of society. We have got to get better at anticipating this reality; they are a central apparatus of government.”
Of course, not every Egyptian judge is partial to the old regime, or eager for political power. And every country’s legal system is unique. But the success of democratic reform cannot be measured without including the one branch of government that is too often viewed as immune to politics.
We ought to know better. And, just in case there was any doubt, we could ask people in Pakistan, where the chief justice just fired the prime minister.
Juliette Kayyem can be reached at firstname.lastname@example.org and Twitter @juliettekayyem