Egypt’s elected Islamists have locked horns in a struggle with the judiciary that veers between full confrontation and guarded accommodation. Islamists’ concerns about the judiciary are not unfounded, but as the dominant political actors in the country today, the choice between confrontation and accommodation is largely theirs to make. Both they and various judges have used whatever tools are at their disposal in the struggle, yet if they continue to deploy them as recklessly as they have over the past few months, the country’s troubled democratic transition will end up being the biggest loser.

Apparently calculating that much of the civilian opposition is either implacable or irrelevant, the presidency in particular has focused its political energies on translating its electoral victories into a more solid position within the state apparatus. Currently, President Mohammed Morsi appears to have reached a viable modus vivendi with the military and a shakier one with the various parts of the internal security apparatus. But rather than do the same with the judiciary, Morsi and his allies may be calculating that the judges are obstacles to be overcome through executive action and legislation—and a certain measure of intimidation.

The most audacious move in that regard—last November’s constitutional declaration—hardened positions on all sides. Within the ranks of the judiciary, what had been a range of feelings about the Islamist rise—from active opposition through foreboding, all the way to accommodation—turned into a sense of mortal combat. For many judges it was less the ideology of the Islamists than it was their behavior that caused bitterness. In remolding Egypt’s legal and constitutional framework, the newly elected leadership seemed not simply to recreate Mubarak’s corrupt (though less rigid) authoritarianism, but instead revert to Nasser’s more regimented (and far less legalistic) system.
The two most significant areas of combat still contain routes of compromise and accommodation, though neither side has yet burned the bridges leading toward those routes. The first and most public of these battles concerns a new law for judicial organization—the basic piece of legislation that guarantees (or vitiates) judicial independence. Ironically, the effort to draft a new one dates back almost a decade—with some even earlier antecedents—led by reformist judges who sought to remove the last vestiges of the authoritarian tools and executive encroachments built up largely during the Nasserist era. In the months after the 2011 uprising, reformist judges saw the time as opportune for reviving those efforts, but their attempts went into hibernation when the lower house of the parliament was dissolved last year.

But when the Islamist-dominated upper house of parliament suddenly took up the project in April 2013, judges understandably reacted with alarm, as they soon discovered how Orwellian the claim of championing the independence of the judiciary had become: the law would have forced most senior judges to retire—thus purging the judiciary in the guise of prying it out from under the domination of older figures. Judicial positions are often concentrated among a small number of families—as are other professions—leading Islamists (who, for years, had been systematically excluded by security vetting) to jockey for a more diverse group of younger judges. Muslim Brotherhood cadres organized large rallies in support of the proposed law, and movement leaders took up strong rhetorical cudgels against obstructionist judges, thundering about domination of the judiciary by a few families. Those on the bench shuddered in recollection of earlier confrontations with the presidency in 1954 and 1969, the first of which gutted the previously assertive administrative courts, and the second of which resulted in the purge of over 200 judicial personnel in an incident still referred to today as “the massacre of the judiciary.”

In a meeting with judicial leaders (though one tilted toward those who had inclinations toward compromise), President Morsi seemed to suggest a cease-fire in the conflict over the judicial law—though the precise nature of his promises remain unclear. At their most ambitious reading, he agreed to work with the judiciary to develop a law using a mechanism that reformist judges had deployed once before early in the Mubarak years: a nationwide conference on justice that would sketch out a consensual approach toward reform of the judiciary and independence. But many suspicious observers worried that Morsi had simply delayed the confrontation until later.

The second battle is legally more complicated but no less portentous—that over the public prosecutor. The position is a critical one, since it oversees all criminal prosecutions and thus determines which allegations are zealously pursued and which ones are overlooked. Finding a reliable public prosecutor was one of the critical methods by which the old regime found a way to deal with an often surprisingly autonomous set of judicial actors. Thus, it was no surprise that any post-revolutionary government would wish to find an alternative to Abdel Meguid Mahmoud, the Mubarak-era holdover—a determination that only grew deeper as he failed to mount effective prosecutions against old regime figures.

But when President Morsi finally moved against the prosecutor and appointed Talaat Abdallah, he did so in a highly polarized atmosphere and resorted to an audacious set of measures designed to allow the president to ignore existing laws and procedures by making the interim constitutional system into whatever he liked. And the country’s 2012 constitution effectively immunized those measures from any subsequent challenge—or so it seemed, at least until a judicial panel in Cairo’s Court of Appeals tasked with disputes involving judicial personnel overturned Morsi’s decision to dismiss Mahmoud.

Yet in doing so, the Court of Appeals appealed to a very capacious view of “supra-constitutional principles” that it claimed it was capable of discerning on its own. Not only did this cast doubt on Morsi’s authority to have issued November’s constitutional declaration, but it also pursued a mode of legal reasoning far more remarkable for its boldness than its coherence. In essence, the court advanced a claim only slightly less sweeping than Morsi’s: it allowed itself the authority to pick and choose which parts of the various constitutional edicts and provisions actually applied in this particular case, and bypass the rest.

Thus far, the ruling has not been implemented. It is not clear whether the presidency is ignoring it because of the court’s sweeping logic, or simply doing so because it wishes to keep a useful prosecutor general in office. But the sequence of events has only further deepened cavernous judicial suspicions of Morsi—ones that are very much reciprocated.

A compromise solution is readily available: to allow the current prosecutor to leave and select a new one according to the new constitutionally mandated procedure: senior judges on the Supreme Judicial Council would send the name of a nominee to the president, who then makes the formal appointment. Should Morsi accept the various compromises—working out the new judicial law with the judiciary and appointing a new prosecutor general via the Supreme Judicial Council—he would have to face down objections within his own ranks that he was capitulating to his opponents. But (more likely) closed channels of communication between the judiciary and the opposition would begin to reopen and allow Egyptians to begin climbing back from their various ledges.

Nathan Brown is a professor of political science and international affairs at George Washington University and a non-resident senior associate at the Carnegie Endowment for International Peace.

This article is reprinted with permission from Sada.  It can be accessed online at: http://carnegieendowment.org/sada/2013/05/08/battle-over-egypt-s-judiciary/g2ni