Arab Administrative Courts and Judicial Control of the
Bureaucracy
Nathan Brown
Associate Professor of
Political Science and International Affairs
The
Prepared for Structure of Government section,
International Political Science Association conference on “Political Control of
Bureaucracy in Democratic Systems,”
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.[1] 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
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
efforts in
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.[12] In 1948 the Administrative Court of the
Majlis al-Dawla decided in favor of the principle of judicial review of the
constitutionality of legislation.[13] 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.[14]
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.[15] 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.[16] The next year, in the wake of the January
riots in
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.[18]
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).[22] 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.[23] 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.[24] 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.[25] 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.[26]
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.[27]
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.
After
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.
Matters in
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.
Further, while
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.[30]
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.[31] 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.[32]
[2]Provisions
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
Sa`a,
[3]Diane
Singerman, Avenues of Participation: Family,
Politics, and Networks in Urban Quarters of
[4]James
A. Rohr, "French Constitutionalism and the Administrative State: A Comparative Textual Study," Administration
and Society 24 (2, August 1992), p. 237.
[5]Hans
Kelsen, "Judicial Review of Legislation: A Comparative Study of the
Austrian and the American Constitution," Journal of Politics 4
(1942), p. 184.
[6]For
coverage of the debate, see al-Ahram, 24 January, 31 January, 1
February, 2 February, and
[7]For
the history of the abortive efforts to construct the Majlis al-Dawla, see the
paper by the
[8]See
my The Rule of Law in the Arab World:
The Social and Political Role of Courts in Egypt and the Arab States of
the Gulf (Cambridge: Cambridge
University Press, forthcoming), Chapter Two.
[10]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.
[11]See
`Abd al-Hamid Yunis, "Why is the state distinct in Litigation?" Al-ahram,
[14]Abdel
Rahman Nosseir, "The Supreme Constitutional Court of Egypt and the
Protection of Human Rights," unpublished paper, 1992, p. 1.
[18]For
a contemporary account of the confrontation, see the several articles in Ruz
al-yusuf on 7, 14, and
[20]Jasper
Y. Brinton, "Modification of the Law on the Council of State,"
contained in Caffery to
[23]See
the several (sometimes oblique) references in `Abd al-Razzaq al-Sanhuri min
khilal awraqihi al-shakhsiyya [`Abd al-Razzaq al-Sanhuri through his
Personal Papers],
[24]See
the portion of `Abd al-Latif al-Baghdadi's memoirs printed in October, 5
September 1993, p. 46.
[26]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.
[27]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].
[28]For
the politics of judicial development in
[29]Frank
K. Upham, Law and Social Change in Postwar
[30]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.
[31]Mosca
favorably compared imperial