Nathan Brown on Egypt's judiciary and corporatism

For judicial wonks out there, a superb piece on the past, present and future condition of the judiciary in Egypt has just been published by Nathan Brown at Carnegie. It's long, but here's an excerpt I want to comment on that deals with the judiciary getting increasing leverage over the state, and specifically the Supreme Constitutional Court but then expands into a wider point about the revival of corporatism more generally:

Yet the Court, less bashful than the regular judiciary, secured a decree law in June 2011 from the ruling military council that got little attention in the wave of post-revolutionary exuberance. It restricts the president’s choices for the position of chief justice to the Court’s three most senior members and requires the agreement of the General Assembly of the Court’s justices for the appointment to proceed. The brief decree also requires precedence be given to the Court’s “Commissioner’s Body,” a group attached to the court that helps prepare cases and opinions, for appointment to the Court’s main bench. The result will be a remarkably self-perpetuating Court and one that may be very difficult to check.

And the rest of the judiciary will eventually become similarly self-perpetuating—assuming the parliament passes a version of the law everyone agrees they want. This will certainly be a step toward judicial independence of a kind that Egypt’s past authoritarian rulers would never have permitted.

The unasked question in Egypt is whether this is an appropriate path for an aspiring democracy. While the judiciary needs insulation from political pressures, these measures may make judges accountable only to each other in a manner that few democracies have dared to adopt.

Indeed, this may mark a new and wholly unanticipated direction for the Egyptian political system—not in the direction of liberal democracy but instead toward an odd kind of corporatism or even syndicalism. “Corporatism” refers to a social and political system in which various parts of the society are hierarchically and separately organized; their actions are either coordinated or commanded by the state. “Syndicalism” refers to a system in which groups, generally labor or class based, are organized and act for themselves without such state supervision. Egypt may be constructing a system that falls between these two. The terms, from late nineteenth and early twentieth century Europe and largely forgotten in public discussions today, do not completely apply in the Egyptian case—it is, after all, not merely social segments but the state itself that is being carved up into a series of autonomous actors. But they are instructive nonetheless.

To understand how the system might operate, it helps to describe its evolution. Egypt has been a state of strong institutions for a considerable period, but under Nasser’s leadership they were robbed of all autonomy and placed under direct presidential control. The country had only one political party (not coincidentally headed by the president) which owned the press, controlled labor unions, and induced all Egyptians to sing the same ideological tune.

That system was gradually dismantled under Sadat and replaced with one where institutions were granted considerable internal autonomy but placed in the hands of trusted individuals—and those individuals were replaced if they proved less than trustworthy. That pattern was considerably deepened under Mubarak with the remarkable, but often unnoticed, result that each institution was headed by an individual drawn entirely from the institution’s own senior ranks. The minister of defense was a leading general; the minister of interior a leading officer in the security forces; the minister of religious affairs a leading religious scholar; and even the minister of culture was an artist. The minister of justice in such a system was a leading judge. In all these cases, the individual chosen was fully loyal to the system in general and the president specifically but was often given considerable freedom in his own realm.

What Egypt is moving toward is a system in which those institutions will now select their own leaders rather than have the president designate a favorite. It would still be a shock if the ministry of defense or interior were to be headed by a civilian, but in the new system, it may be that senior officers will go further to insist on a say in who of their own ranks is chosen. This path was already followed by Egypt’s current cabinet when a minister of interior was chosen after consultation with leading security officers.

I think actually Nathan undershoots here — there is a strong corporatism to the nature of post-1952 Egypt, certainly in terms of political culture (just think of the relative strength of professional syndicates, even under autocracy, or that entire modern neighborhoods of Cairo have names like "Engineers" or "Journalists). Corporatism is deeply engrained in Egypt, and one of the main reason I have never been a cheerleader for the Judges' Club and its maximalist approach towards judges' independence (they want money from the state without accountability for instance, and the "judges'  intifada" of 2006 was successfully shut down by the Ministry of Justice withdrawing corporatist favors like the payment of judges' mobile phone bills and the underwriting of the Club's loan facilities).

But pinpointing of the dangers towards an adapted, perhaps less authoritarian, corporatism is very astute. But the "balkanization" of the Egyptian state he discusses is real cause for concern for me, because the creation of corporatist islands of power working side to side is not really a transformation of the political fabric as the creation of privileged enclaves that continue forms of behavior where the distinction between the state (and its resources) and corporate interests is scant, where accountability is difficult to obtain outside these enclaves (i.e. they tend to be self-governing), and where everyone who is not in one of these enclaves will tend to become a less privileged citizen. Not to mention, of course, that the battle for control of these enclaves risks becoming the biggest stake of politics (rather than elections, etc.) and that elected officials have reduced power over these enclaves as a result.

A really great piece worth reading for its insight on the judiciary alone, but the final insight is a much more important point:

Much of the political focus in Egypt in the year after the January 25 revolution was on the tension between the military council and the Brotherhood; between Islamists and non-Islamists; between civilian political structures and the institutions of the security state; and between older authoritarian ways and newer more participatory ones. Such contests are vital and real. But they should not lead us to overlook another likely contest that is apt to grow even as the other ones diminish: between the forces of politics, popular sovereignty, and democracy on the one hand and bureaucracy, expertise, and professionalism on the other.

I would fear a rule of technocracies, bureaucracies and "corporations" just as much as the rule of the military — which is just one form of technocracy that specializes in violence, after all.