The persistence of judicial power

In this image taken from Egypt State TV, Judge Farouk Sultan, chairman of Egypt's election committee, announces the result of the presidential election at the State Information Service headquarters in Cairo, Egypt, Sunday, June 24, 2012. Egypt's electoral commission announced Sunday that Mohammed Morsi is victor of landmark presidential vote. (AP Photo/Egypt State TV) MANDATORY CREDIT
In this image taken from Egypt State TV, Judge Farouk Sultan, chairman of Egypt's election committee, announces the result of the presidential election at the State Information Service headquarters in Cairo, Egypt, Sunday, June 24, 2012. Egypt's electoral commission announced Sunday that Mohammed Morsi is victor of landmark presidential vote. (AP Photo/Egypt State TV) MANDATORY CREDIT (AP)
Posted: June 26, 2012

This is hardly a week when we need to be reminded that judges, particularly 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, that is not new: High courts around the world have been wreaking havoc on their countries' political systems for a long time.

That judicial systems are an essential aspect of democracy is all too evident 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 that the judiciary is utterly and frustratingly capable?

Until a few weeks ago, all the attention in Egypt was focused on whether the parliamentary and presidential elections would favor 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 opposed 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 it 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. It was at that point that many international observers lost interest in who would actually win the presidential election.

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, as if democracy were just about electing legislatures and presidents. The judicial coup in Egypt is making policymakers think again.

For years, under the radar, the international community has made training programs for judges a high priority, 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 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 writes for the Boston Globe.

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