A look at Egypt's court edifices — the majestic Dar al-Qada al-Ala in the center of Cairo or the imposing Supreme Constitutional Court Building overlooking the Nile in Maadi —cannot fail to impress the observer with the majesty of Egyptian law. The country's long legal tradition, its respected judiciary, and its deep constitutional heritage seem to take tangible expression in such buildings.
But a visit inside an ordinary Egyptian court building gives another impression. Upon entering a courthouse, an observer is quickly overwhelmed by the throngs of ordinary citizens from all levels of Egyptian society — family members seeking to glimpse a relative accused of a serious crime, injured citizens or abandoned wives seeking whatever protection the law has promised them, lawyers with files of cases bulging out of the briefcases — all of them less in search of abstract justice and more focused on a desperate search for a solution to a pressing problem. The prospects for many supplicants of the law are uncertain at best. The laws are often vague or promise less than the litigants think, the pace of litigation is often extremely slow, and much of the daily business of the courts resembles an inefficient, cumbersome and opaque set of bureaucratic procedures more than the weighing of the scales of the justice.
A judge stepping out from his chambers and leaving the courthouse through the main door would thus have the sensation of moving from the quiet dignity of the law to the atmosphere of a train station. There is indeed no better metaphor for the judiciary's experience over the past year. In the year since the Egyptian revolution, the focus on law generally and the judiciary specifically has moved from the first majestic image of the rule of law to the second prosaic struggle to overcome practical problems.
In early 2011, Egyptians mobilized by the hundreds of thousands to demand that they be governed justly, that those in political authority be held accountable for their actions, and that laws be written to serve the interests of all citizens. Those demands still resonate, but in the past few months especially, the deep structural problems in the Egyptian justice system have become more apparent. Over the past couple weeks — in particular with the legal and political crisis involving NGO funding — Egyptian justice has found itself the subject of international headlines and editorials, Egyptian politicians have hastened to toss the blame for events onto judges' shoulders, and even a parliament claiming to be protective of the rule of law has thundered about an investigation into a matter now before the courts.
The political determination to build a strong and independent judiciary unites a diverse set of actors in Egypt, but recent events have shown the task will not be an easy one.
First, even if the judiciary worked soundly, authoritarianism has deeply insinuated itself into ordinary Egyptian law. The expiration of the state of emergency this summer will be a welcome step for many, but it may be more a symbolic relief rather than a practical one. Much political and even social activity is heavily policed and regulated; large areas of affairs governing civil society, the media, and even economic relations are ruled by a set of laws that — even when not strictly enforced (and they often are not) — still render much of what Egyptians do on a daily basis potentially illegal. The pro-democracy civil society organizations that are now in the prisoner's dock have discovered this to their horror, but they are not alone. The country's largest political party — the Freedom and Justice Party — may have full legal status, but the organization that founded it — the Muslim Brotherhood — is still in legal limbo.
To weed through more than fifty years of laws and regulations, bringing them into line with the needs of a democratic society will not be an easy or a quick task. The fact that the effort may be led by a divided parliament will ensure that, for the first time, many contending voices will have to be heard and the legislative authority will be recognizably democratic, but that will also only lengthen the task.
Second, the court system still shows some signs of a heavily authoritarian legacy. Not only do military courts still try civilians, but also many Egyptians still suspect that the wheels of justice are being manipulated. The full story of the recent imbroglio of the foreign NGO employees may never be known, but that may be precisely the point. It is still not clear how a political dispute became a legal one or who made which decisions that allowed the case to go forward and then permitted some of those involved to leave the country. The current status of the case pleases nobody — not those still on trial, not the NGOs (who still have some of their employees in legal jeopardy), not those involved in the Egyptian justice system (who see the law deployed so defectively), not the outraged Parliament, and certainly not the hapless executive body. And when fundamental decisions are taken without any clarity as to who took them, why, and how, accountability is by definition unattainable. The damage to the image of Egyptian justice may be just as severe as the damage to justice in this particular case.
Still, the judiciary will be called upon to lend its reputation and integrity to key elements of the transition process. It will continue to oversee elections, try officials accused of misdeeds, and even administer the sequestered holdings of accused former officials. And with some senior members of the judiciary sometimes suspected of being overly cozy with officials of the old regime, even if the reputation of the judiciary as a whole is sound, some particular members will likely find themselves singled out for suspicion. Disappointed presidential aspirants, for instance, might easily complain that the basic structure for the presidential electoral commission was designed — and is currently headed — by figures identified with the old regime.
This short term confusion and even demoralization should not obscure the long-term positive trends. Egyptian politics is becoming more democratic and pluralistic, with all the confusion and contestation those terms imply. And the basic building blocks of a sound judicial order survived decades of authoritarian rule. Yet using those building blocks to construct a judicial edifice appropriate to Egypt's changing political structure will take considerable time.
Nathan J. Brown is a Professor of Political Science and International Affairs, George Washington University.