Arab Administrative Courts and Judicial Control of the Bureaucracy
Associate Professor of
Political Science and International Affairs
An understanding of political control of the bureaucracy in democratic systems invites focus on several points of political supervision or access. Most obviously, a parliamentary body can oversee the bureaucracy through a combination of legislative, budgetary, and investigatory tools. Additionally, an elected chief executive can exert more direct and pervasive supervision over the bureaucracy. Less obviously but perhaps more important, bureaucracies may grant access to social actors such as interest groups, professional and trade associations, and labor unions. Such access can be informal or formal (and sometimes even legally mandated), occurring at many points in the design and implementation of policy. Realization of the importance of such institutionalized patterns of access led to great scholarly interest in neo-corporatism in industrialized democracies in the 1970s and 1980s.
If this list of opportunities for political control of the
bureaucracy were exhaustive, studying the topic in the Arab world would be
quick and easy work. External political
controls on the bureaucracy would seem to be virtually non-existent. Elected parliaments do exist in most
countries. Only the Arabian peninsula (with
the exception of
Arab bureaucracies are, of course, far more (even
excessively) responsive to heads of states (presidents, kings, and amirs) and
their designated ministers. In the
states of the
Finally, Arab bureaucracies have few points of
institutionalized access for independent social actors. This is generally ascribed to an oft-cited
weakness of civil society in the Arab world.
The prevalence of “rentier” or “allocation” states, even in non-oil
economies, renders social actors dependent upon the state for access to
resources and in a much weaker position to present demands or suggest policies. For instance, professional associations are
generally either in a subservient or confrontational relationship with the
government, making it difficult for them to play a constructive role in the
policy-making process. In a few
countries where limited pluralism has emerged in recent years there have been
scattered successful efforts to depart from these patterns. For instance, business interests involved in
international trade and investment overcome some bureaucratic resistance to the
use of international arbitration in
If parliaments, presidents, and institutionalized patterns of access lead to little popular control over the bureaucracy, does that mean that bureaucratic actors are not accountable to anyone except chief executives? There is a final area of control over the bureaucracy which is surprisingly highly developed in parts of the Arab world: judicial oversight. In many Arab countries, specialized administrative courts exist with broad authority to review legislation emanating from the bureaucracy and ensure that administrative regulations and decisions comply with the law. The existence of such courts have allowed individuals to seek redress in particular disputes; more noteworthy, however, such courts have attained or asserted the authority to move beyond ordering compensation for individual wrongs to nullifying regulations deemed inconsistent with the law. How did these courts come into being and what is the nature of their influence over bureaucracies in the Arab world?
The battle over judicial oversight of the bureaucracy has
been most protracted in
In assessing the role of the judiciary in politics, American scholars often focus on constitutional law: a judiciary with the authority to strike down legislation deemed incompatible with the constitution has potentially far-reaching political powers. There is every reason to consider judicial review of the constitutionality of legislation, but the vast majority of disputes and administrative acts involve no constitutional controversies whatsoever. Especially in Arab bureaucracies, judicial review of administrative acts is every bit as important as judicial review of constitutionality, if not more so.
In bureaucracies created on a continental model, the
potential scope of administrative regulations and actions is much wider than in
The battle to establish judicial oversight Since the beginning of the
introduction of civil-law models in the Arab world in the late nineteenth
century, great attention has been given to the authority of the courts to
review the actions of the bureaucracy.
When the first Arab civil court system was constructed in
Throughout most of the nineteenth century, judicial reform
The political confusion and fiscal crisis prevailing in
The legislation creating the Majlis al-Dawla placed limitations on its jurisdictions (especially on who had standing to bring a case), but it also established a general assembly for the new judicial body that gave the administrative judiciary a corporate voice. This institution, similar to those earlier established for other Egyptian judicial organs, consisted of judges and other senior personnel from the Majlis al-Dawla. The general assembly lent its weight in support of successful proposals to widen the circle of parties who could bring cases and to increase the jurisdiction of the Majlis al-Dawla. In 1948 the Administrative Court of the Majlis al-Dawla decided in favor of the principle of judicial review of the constitutionality of legislation. This decision resolved decisively a debate among Egyptian courts that had begun when a lower court asserted the principle in 1941 only to have its reasoning rejected by an appeals court.
The new body not only lobbied to extend its legal
jurisdiction; it also pursued its mandate of administrative oversight with
vigor. Most remarkably, perhaps, it
evinced no bashfulness in dealing with sensitive security measures. As Egyptian governments, invoking the state
of martial law declared in 1948, turned to extraordinary measures against
domestic opponents (including the Muslim Brotherhood, radical nationalists, and
leftist groups), the Majlis al-Dawla’s Administrative Court increasingly stood
in their way, ordering reversal of (or compensation for) government decisions
to close down newspapers. A 1951 ruling called into question the legal
status of the government’s dissolution of the Muslim Brotherhood in a case
involving a dispute over Brotherhood property. The next year, in the wake of the January
Curtailing the Administrative Courts Increasing jurisdiction, prestige, and boldness brought new enemies. In 1950 the newly-elected Wafdist government launched an attempt to rein in the Majlis al-Dawla. It was not at first solely (or even primarily) particular decisions that motivated the Wafd, but suspicion of ‘Abd al-Razzaq al-Sanhuri, the president of the Majlis al-Dawla. Al-Sanhuri, the most prominent jurist in modern Egyptian history, was affiliated with the Sa‘dist party (which had been formed after a bitter rift in the Wafd). When al-Sanhuri rebuffed an attempt to provoke his resignation, the cabinet proposed a law preventing former ministers from serving in the Majlis al-Dawla. Since al-Sanhuri had served in a previous Sa‘dist cabinet, this would have resulted in his disqualification, a fact that was not lost on anyone. The threat of massive resignations from the Majlis al-Dawla, the outcry in the press, and the apparent intervention of the Palace forced the Wafdist government to back down. While this attempt to force al-Sanhuri’s retirement failed, it foreshadowed a similar but successful measure taken three years later.
The boldness of the Majlis al-Dawla under al-Sanhuri’s
continued leadership insured renewed disputes with the government. On
When the Free Officers took power in July 1952, the Majlis al-Dawla allowed the new regime to take emergency measures. Whether it was cowed by the officers or simply saw an ally against the Wafd, its new timidity in challenging executive action was striking. The move suspending the activity of political parties received a cautious endorsement from the Majlis al-Dawla, which also provided a legal formula for the formation of a Regency Council (after the forced abdication of King Faruq) without convening the Wafdist parliament (as would seem to have been constitutionally required). The Majlis thus worked out a relationship with the ruling officers, based on the assumption that the authoritarian measures taken by the new regime were emergency measures and that full constitutional and parliamentary life would soon be restored.
In March 1954 a major split occurred within the regime between those who favored the return to parliamentary life and those who supported the continuation of the RCC. While the Majlis al-Dawla was not an active participant in the conflict, it was clear where its sympathies lay. Indeed, major rulings against the new regime were rumored to be in the offing, although little subsequent evidence has been adduced to support the idea that the Majlis al-Dawla was contemplating any bold action. At the end of the month, a demonstration by the regime’s supporters turned violent when al-Sanhuri’s office was stormed and al-Sanhuri himself was assaulted. The general assembly protested strongly to the RCC, which replied with a condemnation of the attack. Al-Sanhuri and most observers, however, believed the attack to have been inspired by some within the RCC itself. Two and one-half weeks later, the RCC moved against al-Sanhuri by enacting the measure the Wafd had earlier drawn back from, dismissing all those who had held high partisan positions before July 1952. At least one member of the RCC later described this move as aimed specifically against al-Sanhuri. The move against al-Sanhuri left the remaining members of the Majlis al-Dawla cowed, but they still posed a potential threat to the regime. Whereas the Wafd’s earlier attempt had been greeted by the threat of mass resignations from the Majlis al-Dawla, this time it was the government which took the initiative. In a measure that marked the complete defeat of the attempt to establish liberal legality through the Majlis al-Dawla, a law was enacted one year after the forced resignation of al-Sanhuri that dismissed all its members. While most were immediately reappointed about twenty of its members were retired or assigned to non-judicial positions. The body’s ability to cancel administrative acts and review those sanctioned by the Revolutionary Command Council was restricted by law.
The Majlis al-Dawla was not totally gutted. But it was robbed of its independence, and the new regime took further steps to insure that even a cowed judiciary would pose no obstacle by removing some of the Majlis’s jurisdiction by legislation. The new regime inserted clauses into critical laws barring the administrative courts from striking down implementing regulations (though the authority to order compensation in the case of an illegitimate regulation was generally retained). In one far-reaching action, for instance, the dismissal of public employees without a disciplinary hearing was deemed by law to be an “act of sovereignty” outside the jurisdiction of the courts.
Restoration of the Administrative Courts For a decade and a half, the ability of the judiciary to act as a restraint on the bureaucracy was thus severely limited. The situation began to change in the 1970s with President Anwar al-Sadat’s limited political liberalization. The 1971 constitution contained two key clauses that greatly strengthened the potential authority of the administrative judiciary. First, civil servants who refused to execute or obstructed court judgments were rendered liable to criminal penalties. (Perhaps mindful of Egyptian experience, the drafters of the Basic Law of the Palestinian Authority have borrowed this idea.) Second, the new constitution barred all legal provisions removing an administrative act from the jurisdiction of the courts.
The political liberalization that began in 1971 has continued unevenly and uncertainly for a quarter century. One of the areas where it has progressed the farthest has been in judicial independence. The move taken by the regime in 1955 (to dismiss sitting judges on the Majlis al-Dawla) was repeated for the judiciary as a whole in 1969; these moves were reversed in the 1970s and by the early 1980s most institutional safeguards for judicial independence has been fully restored. Indeed, under Sadat and Mubarak Egyptian judicial bodies regained more than they had lost in the areas of hirings, transfers, promotions and security of tenure.
The result has been an administrative court system with the authority and the boldness to establish a strong record of bureaucratic oversight. The renewed courage of the Majlis al-Dawla has come in a series of prominent political cases in which the Majlis’s Supreme Administr onsulted (and often Egyptian judges hired). The effect was to replicate Egyptian practices throughout the Arab world. The idea of a specialized administrative court system was greeted with suspicion in many locations, but since it represented not only Egyptian but also French practice, it was often presented as a natural and necessary part of a modern judicial system. While several states did avoid any specialized administrative courts, most eventually gave way. Thus seeds were planted throughout the Arab world for Egyptian-style battles over the jurisdiction and independence of administrative courts. Such battles occurred even in some very unlikely places. In Syria, for instance, the administrative courts ruled that they had the right to review actions taken under a state of emergency to ensure that they were properly related to the conditions that led to the declaration of emergency (though the courts have also ruled that they have no right to question the existence of the emergency itself). Syrian administrative courts have also taken a restrictive view of legislative attempts to remove matters from their jurisdiction.
While administrative courts have spread throughout much of
the Arab world, few countries have evinced much interest in cultivating the
rule of law. Judicial independence is
generally quite limited, and restrictions on jurisdiction are widespread. Only in a few cases has a limited tradition
of liberal legality made much impact.
When the modern Kuwaiti court system was established in 1959 (two years before independence), the country’s ruling family showed its attitude towards judicial checks on the rudimentary bureaucracy by specifically barring the courts from cancelling or even interpreting any regulation. The law establishing the courts also adopted the doctrine of “acts of sovereignty.” This doctrine, developed by French courts and written into Egyptian law, barred courts from reviewing any action of the executive branch that was based on its capacity as the sovereign authority in the country. While the doctrine was most easily applied to foreign and security matters, the Nasserist regime pursued a very wide interpretation that effectively closed off numerous internal administrative acts to court review. By adopting such provisions the Kuwaiti rulers were insuring that the bureaucracy would be responsible only to the ruling family with no oversight by the courts.
Much less may be been accomplished than initially seemed
the case with the establishment of administrative courts. Kuwaiti courts have far fewer marks of
institutional autonomy than Egyptian courts.
It should be no surprise that they have been far less bold when
confronted by clear official preferences.
The Arab experience illustrates that judicial control of the bureaucracy will operate effectively only under specific conditions. Further, even if these conditions are met, severe limitations will still circumscribe the effectiveness of judicial oversight.
Asserting some measure of external oversight over the bureaucracy in an Arab country amounts to introducing a measure of accountability to an actor outside the executive branch. For courts to play that role, three conditions must be met. First, the courts must be themselves independent of the executive. In the Arab world attaining such independence has almost always been conditional upon an enormous amount of judicial autonomy over appointments, assignments and promotion. Globally, some measure of executive control over such matters is common. Often it is supplemented by a legislative role as well. In some countries, bar associations play a formal or informal role in the process. In the Arab world, such mechanisms have quite deleterious effects on judicial independence. Executive authorities—presidents, kings, prime ministers, and justice ministers—have a strong and consistent record of appointing politically subservient judges and punishing recalcitrant ones. With weak legislatures and unstable associational life, parliaments and bar associations are unlikely to act as reliable checks on executive authority. Only making judges accountable to no authority except each other has rendered them independent in the Arab world; only this most undemocratic of mechanisms has led to a liberal result.
The second condition for judicial oversight of the bureaucracy is that courts have jurisdiction over administrative regulations and decisions. It has often been the case in the Arab world that regimes confront troublesome judiciaries not through frontal attacks on their independence by whittling away at their jurisdiction and authority. Thus, courts have had difficulty attaining a clear right to overturn such bureaucratic actions. Such a right is crucial; otherwise an individual filing suit might win without affecting the rule or decision in question. Since civil-law courts are far less mindful of precedent that common-law courts, such an individual verdict will have far less impact. In general, courts have to be authorized to review such matters and issue rulings that affect the rule in question and not simply the individual case.
Finally, courts need to make use of their independence and
jurisdiction, if attained, through the development of doctrine and expertise
raised by administrative cases. If
courts fail to do so, they effectively remove themselves from any meaningful
bureaucratic oversight. This has
essentially happened in
Even given courts that are independent, powerful, and bold, judicial oversight of the bureaucracy operates under undeniable limitations. First, such oversight is necessarily reactive in nature. No action can be taken until a suit is filed; suits are generally not filed until a fairly severe offense is alleged. While judicial oversight may operate effectively in the circumstances just discussed, its ability to act in an investigatory or proactive manner is negligible. In effect, bureaucratic actors are assumed to be acting fairly until specifically charged with exceeding legal authority.
Second, even a powerful administrative judiciary can only measure bureaucratic actions against the text of the constitution and statute. Constitutions generally give executive authorities broad leeway. Statutes are issued by the parliament (or, in many Arab countries, by the decree of the head of state). With parliaments under executive domination, and with legislation often drafted by the bureaucracy, courts are constrained to measure bureaucratic actions against standards that are generally themselves developed inside the bureaucracy. Such oversight is thus ultimately circular but not necessarily ineffective (as might initially seem). Judicial oversight has the effect of requiring the bureaucracy to operate according to standards and rules that are clear and fixed; it gives individuals recourse when bureaucratic actors make decisions that exceed the legal extent of their discretionary authority.
Indeed, it is precisely the circular but effective nature of judicial oversight that helps explain its appeal to Arab regimes. On the one hand, the circular nature renders judicial oversight less threatening. While it limits the discretionary authority of officials at all levels of the executive branch, it does so only by holding them accountable to standards that they themselves develop. It thus hardly undermines authoritarian rule or promotes democratization; it simply renders authoritarianism a little more consistent and less personalistic. Such a function may be occasionally annoying but is rarely threatening. On the other hand, such judicial oversight offers rulers the prospect of holding lower- and mid-level officials accountable to standards articulated by the regime in the form of statute.
Judicial oversight of the bureaucracy, in short, offers the prospect of the rule of law—not in its liberal, democratic form but instead in its more authoritarian and state-centric variant. At its most ambitious, it can bring about the functional equivalent of European constitutional monarchies of the nineteenth century: executive authorities held accountable to operate according to laws that they themselves composed.
of a law encouraging the use of arbitration were viewed suspiciously by the office
responsible for defending official actors; it sought to change the legislation
to keep government contracts within the administrative court system regardless
of any arbitration clauses. See the
interview with Sayyid al-Shurbaji, director of the Office of Government Cases,
"Office of Government Cases on Defending the Government," Akhir
the history of the abortive efforts to construct the Majlis al-Dawla, see the
paper by the
For the efforts to create the majlis al-dawla, see ibid. On the boldness of the National Courts, see Latifa Muhammad Salim Al-nizam al-qada'i al-misri al-hadith [The Modern Egyptian Judicial System] (Cairo: Markaz al-Dirasat al-Siyasiyya wa-l-Istratijiyya bi-l-Ahram, 1984), pp. 278-80.
`Abd al-Hamid Yunis, "Why is the state distinct in Litigation?" Al-ahram,
a contemporary account of the confrontation, see the several articles in Ruz
al-yusuf on 7, 14, and
Y. Brinton, "Modification of the Law on the Council of State,"
contained in Caffery to
the several (sometimes oblique) references in `Abd al-Razzaq al-Sanhuri min
khilal awraqihi al-shakhsiyya [`Abd al-Razzaq al-Sanhuri through his
See James H. Rosberg, Roads to the Rule of Law: The Emergence of an Independent Judiciary in Contemporary Egypt, Ph.D. dissertation, Department of Political Science, Massachusetts Institute of Technology, 1985, p. 180.
These rulings are explored in an unpublished paper by Nasrat Munla Haydar, president of the Supreme Constitutional Court of the Syrian Arab Republic, "Dawr al-Qada' fi Himayat al-Huquq wa-l-Hurriyyat al-`Amma" [The Role of the Judiciary in the Defense of Public Rights and Freedoms].
the politics of judicial development in
This argument is developed more fully in Rosberg, Roads to the Rule of Law. Rosberg claims as well that Egyptian judges have been able to use the power granted to them to enlarge the scope of their authority beyond what rulers originally intended.
favorably compared imperial