A Trickster’s Tokens: Christians and Waning Judicial Independence in Egypt

By: Mona Oraby

March 30, 2022

Religion and Nationalism in Global Perspective

On February 8, 2022, Egypt’s President Abdel Fattah al-Sisi decreed his appointment of Judge Boulos Fahmy Eskandar to lead the Supreme Constitutional Court (SCC). As the first-ever Coptic Christian to serve in this capacity, does the appointment bode well for the rule of law and the status of Copts? Eskandar’s leadership partly rectifies the underrepresentation of Christians in the Egyptian judiciary. But Copts have held top judicial positions since at least the 1990s. Their ascendance accorded with rules of seniority and respect for these rules that previous Egyptian presidents honored. Eskandar may be the first Copt to lead the SCC, but he is not the most senior of the sitting judges. When considered alongside recent and far-reaching changes to the judicial system, this move weakens an already damaged separation of powers between the executive and judicial branches and further weakens judicial independence. Today, the executive does not merely influence judicial appointments, as was previously the case, it dominates them.

The appointment of Eskandar to the SCC’s presidency fits within Sisi’s trickster politics. His tricksterism aims to align state institutions that previously operated in productive tension and offers key segments of the population token gestures to prevent mass mobilization. It uses the purported novelty of these gestures to justify executive actions that subvert democratic norms. In his choice of Eskandar for the position of chief justice, Sisi exploited a familiar trope: Christians, seen in nationalist discourse as a vulnerable, yet valuable, subsection of the Egyptian nation, require a strong state to ensure their protection and social advancement. Meanwhile, fanfare that celebrates tokenism distracts from persistent rights violations, systematic political repression, and crippling economic hardships that millions of Egyptians have faced since 2013. Sisi has prolonged the revolutionary situation in Egypt without any foreseeable end. 

Seen in this light, Eskandar’s appointment brings state institutions into further alignment with military rule. Although the Egyptian military’s involvement in the civilian economy dates to the late 1970s, and military economies are not unusual globally, the military in Egypt has had an unusual effect on national politics. 

Sisi’s rise to power personifies a jockeying for political dominance among state institutions since the 1952 officer-led coup that deposed the British-backed monarchy. 

Sisi was a career military officer and unknown politically prior to his appointment in 2012 by then-president Mohamed Morsi to the position of defense minister. During the brief year of Morsi’s presidency, it became clear that the military would not submit to civilian leadership. The military, emboldened by popular support, deposed Morsi from elected office the following year. Within the first six years of his presidency, Sisi introduced sweeping legal changes that undermine the principle of judicial seniority and extend presidential term limits, as well as grant the president unchecked supervisory powers over the judiciary and prosecution, including appointments

Though seemingly unprecedented in scope, these legal reforms, including the 2019 constitutional amendments, harken to an earlier moment in Egyptian history. Following the 1952 coup, few state institutions were immune from the revolutionary government’s scrutiny. The muscular nationalism ushered in by Gamal Abdel Nasser was felt by those institutions established to curb abuses of public power. Chief among these was the administrative judiciary, known as Majlis al-Dawla or the State Council. The taming of Majlis al-Dawla culminated in 1954 with a physical attack on Abdel Razzaq al-Sanhuri, its then-president and chief architect of Egypt’s revised civil code. Military sympathizers led the attack on suspicion that Majlis al-Dawla would deny the constitutionality of the 1952 coup (at that time the administrative judiciary held powers of constitutional review). Nasser’s government soon forced Sanhuri out of his position.

The 1956 constitution, which granted Nasser expansive power to rule by presidential decree, limited the administrative judiciary’s potential to check the executive. Not unlike Sisi today, Nasser ensured that his authority would remain unquestioned by writing this protection into law. The 1964 constitutional ban on the repeal of government decrees, for example, stunted the administrative judiciary’s capacity for judicial review. It was only under President Anwar al-Sadat, who succeeded Nasser, that judges would be given greater latitude to manage appointments, promotions, and transfers, and granted legal protections against dismissal. The trend toward judicial autonomy was central to Sadat’s campaign of building political legitimacy to attract foreign investments and to reverse the debilitating effects of Nasserism. 

Scholars observe that Egyptian presidents abandoned the practice of appointing the most senior judge to the position of SCC chief justice in the 2000s. Yet the taming of the judiciary under President Hosni Mubarak differed in important ways. When Mubarak sought to influence SCC jurisprudence, he exercised his legal prerogative (per Article 5 of Law no. 48/1979 governing the SCC) to fill vacancies for one position: the SCC presidency. It was these appointments that gradually tamed the court, as Mubarak appointees recruited colleagues into the judiciary who were less likely to deliver judgments that challenged the regime. Sisi, on the other hand, vexed by the judiciary’s procedures and checks on his power, has shoved through legal amendments that reconfigure the judicial system as a whole. Appointing a Copt as chief justice of the SCC, though historic, distracts from the massive threat that the amendments pose to judicial autonomy. 

The taming of the judiciary under Mubarak and Sisi differs in yet another important respect. Contrary to nationalist discourse today, Mubarak-era rules on judicial appointments facilitated rather than prevented the rise of Christians through the judicial ranks. Moreover, the appointment of a Copt to the SCC chairmanship holds no special weight relative to the chairmanship of the other courts. Even as observers often consider the SCC as Egypt’s highest court, it is only one of three high courts alongside the Court of Cassation and the Supreme Administrative Court, which falls under Majlis al-Dawla. Majlis al-Dawla alone has had four Christian chairs (Hanna Nashed, Nabil Merhem, Ghobrial Abd El Malak, and Farid Tanagho), all of whom assumed their positions based on their seniority and prior to Sisi’s presidency. We should not, therefore, lose sight of the mechanisms that facilitated Eskandar’s appointment or fail to situate them within the context of a renewed authoritarianism under Sisi.

The Eskandar appointment can be seen as Sisi politicizing the judicial system in yet another sense: bringing it into line with a historic agreement between the Egyptian presidency and Coptic Church leadership. 

The agreement empowers the church to regulate communal affairs while token appointments quiet the laity; both techniques ignore the plurality of communal politics that occurs beyond church hierarchy. On a broader scale beyond the judiciary, even as Sisi is the first Egyptian president to attend Coptic Christmas mass and inaugurate what is ostensibly the largest cathedral in the Middle East, these gestures evidence Sisi’s trickster showmanship rather than address Copts’ longstanding demands—whether for better housing or accountability for the 2011 Maspero massacre. In fact, the Cathedral of the Nativity is listed on the presidency’s website as one among numerous national projects. Copts at the forefront of political advocacy today are driven not by questions of representation in state institutions or the demand for Sisi-style mega projects, but rather by the as yet unresolved socioeconomic grievances that cut across religious lines. 

Political repression under Sisi works through legal institutions and processes while undermining their integrity. This is no paradox but a measure of tricksterism’s insidiousness. For example, in 2004, the Egyptian Nationality Law was amended to allow nationality transfer from either mother or father to child. Likewise, Article 6 of the 2014 Egyptian constitution guarantees the right of citizenship to all children born to an Egyptian father or an Egyptian mother, making Egypt’s legal framework on nationality and citizenship among the most progressive in the region. Even as Egyptian nationality enjoys expansive legal definition under Sisi, the question of national allegiance is being arbitrated with renewed urgency. Among those most recently imprisoned on charges of spreading false news in and beyond Egypt are Egyptian researchers like Patrick Zaki who reside abroad. The release of Palestinian-Egyptian Ramy Shaath, after more than 900 days in arbitrary detention, was contingent on him renouncing his Egyptian nationality. The state thus appears more inclusive but aims ultimately to stifle dissent.

As this essay was finalized, 98 women judges took new positions at the helm of Majlis al-Dawla following an initial swearing-in last year. It has been reported that this is the first time that Egyptian women have served as administrative judges. Does their appointment bode well for the rule of law and the status of women? Like the fanfare surrounding Eskandar, coverage of these women misses the lateral nature of their appointments: they previously held mid-career positions in the Administrative Prosecution Authority and the Egyptian State Lawsuit Authority, both of which are judicial bodies. Their current promotion says less about Sisi rectifying historical underrepresentation in judicial institutions and more about how women, like Christians, are tokenized within an authoritarian context, a move that gives the ruse of law’s rule but ultimately undermines its integrity. 

Any gains in demographic representation within formal state institutions at this time cannot be celebrated on their own terms. 

There is little to celebrate so long as the institutions whose mandate should be to constrain executive power are being reconfigured to allow its unabated extension, and so long as tens of thousands of voices that hold the government to account remain behind bars.

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