Arab Administrative Courts and Judicial Control of the Bureaucracy


Nathan Brown

Associate Professor of

Political Science and International Affairs

The George Washington University

Washington, DC  20052


Prepared for Structure of Government section, International Political Science Association conference on “Political Control of Bureaucracy in Democratic Systems,” Ben-Gurion University of the Negev, Beersheva, Israel, February 1997



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 Kuwait) continues to resist the trends towards the forms of parliamentary democracy.  But such parliaments offer little opportunity for supervision.  Governing parties are generally government creations so that parliaments are generally dominated by parties which owe their influence (and even existence) to their hold on power rather than owing their hold on power to their popular influence.  Parliamentary control over budgetary matters is generally extremely weak in practice (and sometimes in law as well).  While it is usually possible to direct questions to ministers, parliamentary deputies rarely have the staff, expertise, or resources to make much use of any investigatory authority.  Even the legislative process itself is dominated by the bureaucracy:  legislation is routinely drafted within the relevant ministry, reviewed by a legal or judicial body, and then approved by the cabinet.  The parliamentary vote, when it takes place, becomes a mere formality that occurs after superficial discussion.

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 Arabian peninsula, the transition from patrimonial household government to free-standing bureaucratic government is still incomplete, and the public authority of the ruler is only incompletely distinguished from the private wealth and influence of the ruling family.  While such arrangements are viewed as corrupt in the industrialized West (and increasingly in the region), they certainly provide a strong check on bureaucratic autonomy.  However strongly the patrimonial royal and republican executives of the Arab world exert control over their bureaucracies, such oversight is neither liberal nor democratic.

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 Egypt.[2]  While such instances might become more common in some countries, opportunities for institutionalized access will probably remain slight.  Political parties hardly represent an opportunity to overcome the failure to develop institutionalized patterns of access to the bureaucracy; indeed, in many Arab countries, governing parties are virtually coterminous with the bureaucracy.  The paucity of institutionalized access bureaucracy does not mean that the bureaucracy is totally insulated from society.  Individuals generally scramble to make use of informal ties and connections in order to obtain favorable application (or suspension) of official policies.  Use of family, neighborhood, or other ties might be deemed corrupt but is critical for many citizens of the Arab world.  Such access, while important to understanding politics in the area, is difficult (though not impossible[3]) to study.

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 Egypt, but it has occurred in other Arab states.  In the remainder of this paper, we will focus on the Egyptian case while also considering developments in other countries (especially Kuwait) where similar issues have arisen.

Administrative Courts in the Arab World:  The Establishment of the Egyptian Majlis al-Dawla

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 United States.  Bureaucratic actors are given far wider latitude in the administration of areas falling within their purview.  In general, such systems distinguish among four levels of rules:  the constitution, statute, administrative regulations or ordinances, and administrative decisions.  Administrative regulations refer to general policies; administrative decisions refer to more specific acts related to individual matters rather than general policies.  In the United States, bureaucratic actors generally must adduce a specific statutory authority for the regulations they issue.  In continental systems, bureaucratic actors generally possess a more general authority (and thus far greater discretion) in issuing administrative regulations and decisions consistent with their constitutional or statutory mandate.  Under the 1958 constitution, the French parliament is even restricted to specific areas; rule-making outside those areas is left to administrative decisions.[4]  Thus the scope of non-statutory administrative action is far greater.  In this context, the political importance of judicial review of such acts looms much larger.  Indeed, Hans Kelsen, the Austrian jurist behind the establishment of one of Europe’s first constitutional court, observed that in continental bureaucracies judicial review of the legality of administrative acts was often far more important than review of the constitutionality of legislation.  He wrote that “in such a legal system the judicial review of ordinances is even more important than that of statutes, for the danger that administrative organs will exceed the limits of their power of creating general legal rules is much greater than the danger of an unconstitutional statue.”[5]

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 Egypt in the 1870s and 1880s, considerable debate focused on the authority of the courts and the standing of individuals in this regard.

Throughout most of the nineteenth century, judicial reform efforts in Egypt had tended to amalgamate administrative and judicial functions; the creation of an autonomous civil-court system required explicit consideration of how to handle cases in which an official actor was a litigant.  Contemporary records indicate that the greatest focus was on whether individuals could bring suits against state actors.  Various options considered were to require government permission before a lawsuit could be filed against administrative officials, to establish a special administrative court for such suits, and to authorize the regular courts to hear all administrative cases.  There was strong sentiment for the establishment of a specialized administrative court (in order to strengthen the ability of the judiciary to reverse administrative actions), and a decree to construct such a system was issued in April 1879.  The judicial Majlis al-Dawla [Council of State] was patterned on the French model.  It was to have the authority to render legal opinions on proposed legislation and draft legislation when requested by the government.  It was also to have jurisdiction in cases involving administrative regulations and decisions and had the authority to order compensation and abolish when administrative acts were found to violate the law.

The political confusion and fiscal crisis prevailing in Egypt prior to the British occupation of 1882 prevented implementation of the new Majlis al-Dawla system.  In 1883 the Egyptian government, now operating under the watchful eyes of the British occupiers, considered the question again.  Despite strong support for the implementation of the April 1879 decree, the government felt compelled to take the less radical step of allowing individuals to bring suits against official actors in the regular courts.  If an official was acting within his official capacity, the state would be liable for damages; if the official was acting on his own then he would be personally liable.[6]  In no case, however, could a court strike down an administrative action; only compensation could be ordered.  The authority of the judiciary to review administrative acts was thus severely limited.  The major obstacle to the Majlis al-Dawla turned out to be the British:  with their newly gained influence over Egyptian administration they found unpalatable the idea of creating autonomous judicial oversight.  The proposed body would have encroached on the position of the judicial adviser (a British official within the Ministry of Justice who theoretically served the Egyptian government but reported directly to the British consul-general).[7]  British pressure against the Majlis al-Dawla was based on a sound political calculation; the Egyptian judiciary proved to be an intermittent obstacle to the authority of the British occupation for as long as it continued.[8]

Egypt finally regained full control over its judicial system in the 1930s, and the post of British judicial adviser was abolished.  The proposal to construct the Majlis al-Dawla was revived, though it was still controversial.  In 1946 a law was finally passed to construct an independent, quasi-judicial body with the twin tasks of reviewing draft legislation submitted by the government and adjudicating disputes over administrative actions.  The former function was attractive to the legal elite because it would have mandated that jurists be consulted about  legislation before it was enacted, but it was the latter function that especially attracted its proponents.  They argued that such a body was necessary to give citizens the right to appeal to a neutral authority in cases of illegitimate administrative actions.[9]  While the regular courts were, at the time, increasingly bold in the matter (they had begun to go beyond ordering compensation to those harmed by administrative action to actually ordering the cancellation of illegitimate acts) the creation of a specialized body with a mandate in such disputes was seen by many as adding a strong guarantee to the rights of citizens.[10]  The reasons for the parliament’s acceptance of the legislation creating the majlis al-dawla remain unclear, although some far-from-liberal motives have been mentioned (including the frustration of authoritarian premier Isma‘il Sidqi with several recent rulings by the regular courts).[11]

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 Cairo, the Administrative Court ordered the cancellation of an arrest order for two radical critics of the regime, Fathi Radwan and Yusuf Hilmi.  The government issued a new arrest order, hoping to meet the Court’s objections, but again the order was overturned in the court.[17]

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 March 22, 1951, for instance, the Administrative Court of the Majlis al-Dawla tread on very sensitive ground by deciding that it had jurisdiction to examine a military decision to dismiss an officer.[19]  At the end of 1951, therefore, the Wafdist government launched a more modest move to revise the basic law of the Majlis al-Dawla.  Specifically annoyed by several stays of execution granted by al-Sanhuri (subsequently affirmed by the whole court), the proposed legislation transferred the authority to grant such stays from the president of the court to a panel of judges.  It also attached the Majlis al-Dawla to the ministry of justice.  The legal impact of this latter move was unclear but it conveyed a symbolic message offensive to many proponents of the Majlis al-Dawla.  The general assembly of the Majlis al-Dawla condemned the move, especially because it had not been given the opportunity to review the draft legislation as required.  The Bar Association joined the condemnation, but the Wafd, with its parliamentary majority, pushed the measure through in January 1952.[20]  The measure was partly reversed when Dr. Muhammad Kamil Mursi, al-Sanhuri’s predecessor as president of the Majlis al-Dawla, became justice minister in a non-Wafdist government two months later.[21]

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 Egypt, Kuwait is the country where forces of liberal legality are strongest.  And the battles over the administrative court in Kuwait have been similar to those in Egypt:  a political leadership suspicious of the use of administrative courts has resisted the institutionalization of judicial control over the bureaucracy.  While the lines of controversy are similar, they are less sharply drawn, and the administrative courts have realized less progress in attaining the ability to oversee the bureaucracy.

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 Kuwait changed in 1962 when a constituent assembly was convened to review a draft constitution prepared by ‘Uthman Khalil ‘Uthman, an Egyptian jurist and colleague of al-Sanhuri).  ‘Uthman’s draft included a provision for an administrative court system.  Article 169 gave such a court the power to nullify and order compensation for illegal administrative acts.  Members of the assembly from the ruling family sought to strike the provision, but elected members prevented this step.  Under the Kuwaiti constitution, the government has been dominated by the ruling family, but independent and opposition figures have been strong in the parliament.  The government managed to prevent legislation implementing the administrative court system for over a decade, leaving the constitutional provision a dead letter.  Only the threat of independent parliamentary action to write legislation prompted the government to acquiesce and cooperate in writing the law establishing the administrative 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.  Further, while Kuwait did establish administrative courts, it did not adopt the entire Majlis al-Dawla system in which a judicial body is consulted in drafting of legislation.  Thus the ability of the Kuwaiti judiciary to influence the writing and the implementation of law is circumscribed.[28]

Requirements and Limitations of Judicial Control

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 Japan, where courts have the independence and have asserted the right to examine administrative decisions but avoid doing so in practice.[29]  In the Arab world, development of such doctrine and expertise has required the construction of specia bureaucratic decisions.

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]


    [1]Giacomo Luciani (editor), The Arab State (Berkeley: University of California Press, 1990).

    [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, 11 April 1990, p. 20.  The law was finally passed in 1994 without granting government contracts special status.

    [3]Diane Singerman, Avenues of Participation:  Family, Politics, and Networks in Urban Quarters of Cairo (Princeton:  Princeton University Press, 1995).

    [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 5 February 1883.

    [7]For the history of the abortive efforts to construct the Majlis al-Dawla, see the paper by the US legal attache (Judge Brinton), "Review of History, Organization and Work of the Egyptian Council of State," transmitted in Caffery to State, March 31, 1951, USNA 774.3/3-3151.  See also Enid Hill, "Al-Sanhuri and Islamic Law," Cairo Papers in Social Science 10 (1, 1987), pp. 92-95.  See also the comments of Sulayman Hafiz, then vice president of the majlis al-dawla reported in "The Palace of Justice Which is Transformed into A Battlefield" Akhir Sa`a, February 8, 1950.

    [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.

    [9]Interview with Mahmud Fahmi, former vice-president of the majlis al-dawla, Cairo, May 1992.

    [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, 20 February 1966.  Enid Hill,  "Al-Sanhuri and Islamic Law," Cairo Papers in Social Science 10 (1, 1987), pp. 92-95, discusses the alternative idea that it was a parliamentary initiative.  Mahmud Fahmi ascribed the parliament's creation of the majlis al-dawla to the personal prestige not only of al-Sanhuri but also Dr. Muhammad Kamil Mursi, another highly respected jurist, who preceded al-Sanhuri as president of the majlis al-dawla (personal interview, Cairo, May 1992).

    [12]Salim, Al-nizam al-qada'i,pp. 282-83.

    [13]Hill, Sanhuri, pp. 95-96.

    [14]Abdel Rahman Nosseir, "The Supreme Constitutional Court of Egypt and the Protection of Human Rights," unpublished paper, 1992, p. 1.

    [15]Salim, Al-nizam al-qada`i, pp. 285-86.

    [16]Caffery to Department of State, December 8, 1951, USNA 774.21/12-851.

    [17]See Lutfi al-Khawli, "Know Your Rights," Ruz al-Yusuf, 11 August 1952.

    [18]For a contemporary account of the confrontation, see the several articles in Ruz al-yusuf on 7, 14, and 21 February 1950.  For the claim of Palace intervention, see `Abd al-Hamid Yunis, "Why is the State Distinct in Litigation," Al-ahram, 20 February 1966.

    [19]"Work of the Egyptian Council of State,"  Caffery to State, May 14, 1951, USNA 774.3/5-1451.

    [20]Jasper Y. Brinton, "Modification of the Law on the Council of State," contained in Caffery to Department State, January 15, 1952, USNA 774.21/1-1552, p. 3.  See also Caffery to Department of State, December 8, 1951, USNA 774.21/12-851.

    [21]Salim, Al-Nizam al-Qada'i, pp. 283-84.

    [22]Hill, Sanhuri, pp. 102-04 discusses the relations of the majlis al-dawla with the RCC.

    [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], Cairo:  al-Zahra' li-l-A`lam al-`Arabi, 1988.  Muhammad Kamil `Ubayd, Istiqlal al-qada' [Independence of the Judiciary] (Cairo:  Maktabat Rijal al-Qada', 1991), pp. 231-33, includes the text of the correspondence between the RCC and the majlis al-dawla.

    [24]See the portion of `Abd al-Latif al-Baghdadi's memoirs printed in October, 5 September 1993, p. 46.

    [25]`Ubayd, Istiqlal al-qada', pp. 234-35.

    [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 Kuwait, see my forthcoming book The Rule of Law in the Arab World.  For specific (though dated) information on the administrative courts in Kuwait, see `Uthman `Abd al-Malik al-Salih, Al-Sulta al-La'ihiyya li-l-Idara fi al-Kuwayt [The Regulatory Authority of the Administration in Kuwait] (Kuwait:  Majallat al-Huquq wa-l-Shari`a, 1977).

    [29]Frank K. Upham, Law and Social Change in Postwar Japan, Cambridge:  Harvard University Press, 1987, p. 15,

    [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 Germany to democratic France on this point, viewing the independence of the German administrative courts as providing greater guarantees of effective government than existing under the French system of parliamentary supremacy.  See Gaetano Mosca, The Ruling Class, edited and revised by Arthur Livingston, translated by Hannah D. Kahn (New York:  McGraw-Hill, 1939), especially p. 262.

    [32]The role of such review in constitutional monarchies was noted by Hans Kelsen, General Theory of Law and State, translated by Anders Wedberg, Cambridge:  Harvard University Press, 1949, pp. 281-282.