Egypt's Judicial independence: The battle continues
All it took was one highly-publicised article by a judge to launch what has come to be known as the "Judges Intifada." In 2005 - and after years of pressure - Mubarak finally agreed to let judges supervise the presidential elections, which were to win him more terms in office.
The judges, however, were not happy with what they saw inside the polling stations. One judge, Noha El-Zeiny, wrote of the widespread rigging she experienced in the governorate of Damanhour.
The article was published on 24 November 2005, shortly after the presidential elections. It included a scathing report of the violations and widespread rigging that took place. It also included 120 signatures by other judges who backed El-Zeiny’s claims and added their own reports of electoral rigging across the nation.
El-Zeiny was the whistleblower. Her article caused a stir in the country and spearheaded calls for judicial independence. The Supreme Judiciary Council (SJC) then stripped four senior judges - Mohamoud El-Khodeiry, Hesham El Bastawisi, Mahmoud Mekki and Ahmed Mekki – of their immunity after they answered the call and took a stand.
The judges called for judicial reform and for amendments to the Judicial Authority Law that would give the judges greater autonomy from the executive branch, which controls the Justice Ministry. Now, seven years and a revolution later, judges find themselves still fighting for independence.
The Judicial Authority Law
For decades, Egyptian judges have been complaining of direct interference of the executive authority in judicial affairs.
Loopholes in the Judicial Authority Law and appointment systems allow the executive authority to meddle in the judiciary, experts complain. The interference comes in a variety of forms.
One of the main demands of the judiciary is to remove all power from the Justice Ministry and to give the Supreme Judicial Council (SJC) the main control over judicial affairs. The SJC is a body that nominates, promotes and assigns judges in Egypt. However, according to experts, it is actually the Justice Ministry that mainly controls judicial affairs.
The judicial appointment system used to pick judges for prestigious positions is one way the executive authority interferes in the judiciary.
According to legal expert, Abdallah Khalil, the judiciary in Egypt is hereditary, meaning that often the sons and relatives of judges would be appointed in key positions. Often, also, the judges chosen for these positions had to come from high-income households.
"The judges' social standing became one of the man criteria," explains Khalil. "Of course this threatens the independence of judges because the judiciary should reflect the diversity throughout the society."
Additionally, if there was a shortage of judges, the Judicial Authority Law allowed police officers to enter the judiciary. The officers had to pass a series of tests and would then be assigned to prosecution. From there, they would then be allowed to climb the judicial ladder. Point in case: Egypt’s current Vice President Mahmoud Mekki was a former police officer. The problem with this system, says Khalil, is that police officers are trained to be loyal to the regime.
"So it benefits the regime to have competent obedient men to serve them," he adds. "In fact, I believe that at one point all the public attorneys working in Cairo’s various prosecution departments were former policemen."
Another problem is that the Judicial Inspection Department is also currently under the Justice Minister’s Authority. The department monitors judges and also supervises the processes for transferring, appointing and promoting them to various posts within the judiciary. Therefore, if a judge is suspected of doing something illegal, the Justice Minister who interrogates him/her and decides what disciplinary methods will be taken against the judge.
"This is dangerous power that should not be under the Justice Minister because that means that the judge is always subject to the Justice Minister’s assessment," explains Judge Mohamed El-Gamal, former head of the State Council.
The executive authority, adds El-Gamal, also interferes in judicial work through the delegation system, also part of the Judicial Authority Law. Through the delegation system, a judge is appointed to work as a deputy in various governmental authorities or ministries. This system causes a conflict of interest for the judges.
"If a judge is working on a case against a governmental authority he works in, then he is unlikely to issue an unfavourable verdict," says El-Gamal.
The delegation positions are also financially lucrative and temping to judges, he adds.
"They would appoint the judge in a ministry, give them enormous salaries, set them up in luxurious offices and fancy cars," says El-Gamal. "They buy their loyalty that way. And then the ministers and government officials know that they can do whatever they want and the judge will turn a blind eye."
The Justice Ministry also controls the yearly budget allocated to the judiciary, which means that judges do not have financial independence.
All these loopholes combined put enormous pressure on judges to bow to the orders of the regime.
During the Mubarak era, Mubarak used judges and members of the prosecution to monitor the elections, because he knew that he could control them, adds Khalil.
He points out that during the elections the Justice Minister was always in the general-secretariat that monitored the elections. This, he adds, put pressure on the judges not to report rigging. Judges who do not give in to these pressures risk losing their jobs and being transferred to positions outside of the judiciary.
"This means that the judges were essentially playing a political role - which is not right," argues Khalil.
Struggle over power?
When millions of Egyptians poured into squares in Cairo and other cities, Egyptian judges announced their solidarity with the revolution. Judge Bastawisi, who had suffered a heart attack following his confrontation with the Mubarak regime in 2006 and moved with his family to Kuwait, returned to Egypt. Bastawisi also ran for the presidency.
Following Mohamed Morsi's victory in the June presidential elections, he enacted his powers to appoint several judges in key positions. These judges had spearheaded the judicial intifada. Ahmed Mekki was appointed as Minister of Justice. His brother, Mohamed Mekki became Egypt’s first civilian vice president. Hossam El-Gheriany became the head of the Supreme Judicial Council and the president of the Constituent Assembly currently drafting Egypt’s new constitution.
Calls for an independent judiciary were once again renewed, however cracks within the judge’s movement also began to appear. In March, judges were at loggerheads after the court chairman Abdel-Moez Ibrahim was accused of interfering in an internationally high profile case the court was reviewing and allowed six US detainees to leave Egypt on 29 February following a mysterious judicial ruling.
In June, the first post-revolution parliament, which was heavily dominated by Islamists, directed scathing criticism at Egypt’s judiciary after the Cairo Criminal Court handling the Mubarak trial acquitted the Mubaraks of corruptions charges.
Judge Ahmed El-Zend, fired back by holding a press conference in which he threatened to report the Egyptian parliament to the UN, the European parliament and the parliamentary assembly of the Mediterranean for meddling in judiciary affairs.
The situation heated up more when Egypt's Supreme Constitutional Court ruled to dissolve the parliament and declared that the Political Disenfranchisement Law was unconstitutional. The Islamists had hoped to use that law to boot Ahmed Shafiq (Morsi’s rival) from the presidential race. Morsi’s executive decree to reinstate parliament - after the SCC ruling to dissolve it – further escalated tensions with the judiciary.
Additionally, two opposing drafts for a new Judicial Authority Law, presented by El-Zend and Mekki, were presented to parliament, but neither was passed. Judges now have to wait for a new parliament to be voted in before either of the laws could be passed.
The Brotherhood factor
El-Gamal expresses worries that the Islamists are trying to dominate the judiciary as well as other sectors of society. He points out that they also dream of applying sharia (Islamic law), which he stresses has been applied in Egypt since 1929.
"All our personal affairs laws, regarding marriage, divorce and custody, as well as inheritance are derived from sharia law," El-Gamal fumes. "The idea that the sharia is not applied in Egypt is an Islamist-produced myth."
He also accused the Islamist-dominated parliament of trying to pass a bill to eliminate the SCC for passing several laws parliament deemed unfavourable.
"The problem is that democratic countries have bilateral systems in which more than one party dominates power," explains El-Gamal. "However, in Egypt, we have no strong opposition and Islamists dominate."
Indeed, in Egypt’s first post-Mubarak parliament, the Muslim Brotherhood and the Salafist (Islamist) Nour Party took approximately 76 per cent of the seats. While it is still too early to predict what the makeup of the new parliament will be, El-Gamal is not optimistic. He goes as far as saying the current situation is much more dire than during the Mubarak era.
"Mubarak was a dictator who wanted to control all branches of the government. He was an opportunist who was out to make money for himself and his children," explains El-Gamal. "However, he was a civilian president. What we have now is a dictator who hides behind the façade that he is applying God’s law."
El-Gamal, also criticised attempts by Salafist MPs to add a statement saying that "all sovereignty is to God," in the constitution.
"They want to add this so that they can do whatever they want, remove all the three branches of the government and no one can object because they will claim that this is what God wants," says El-Gamal.
Recent decisions to appoint Islamist-leaning judges in key positions, has also riled up some in the country’s legal community. Indeed, Khalil goes as far as saying that the 2006 judges' intifada movement was a masked quarrel between Mubarak’s National Democratic Party (NDP) and the Muslim Brotherhood - the biggest opposition at the time.
"The masks have now been removed and it seems that the fight was not about judicial independence, but a power struggle between two opposing political elements."
His statement is difficult to verify, however, since many of the judges who led the movement, like Zakaria Abdel Aziz and Bastawisi, were leftists.
Can Egypt change?
Human rights lawyer Negad El-Borei stresses that another obstacle facing judicial independence is the culture of nepotism and favoritism that exits in the country.
"In European cultures, there is no such thing as calling a judge who is your friend and asking him to appoint your son in a certain position," explains El-Borei.
Such incidents, which are common in Egypt, hinder judicial independence, El-Borei argues, because it is another means the regime uses to gain the judges favour.
"A judge who agrees that his son be favoured and given a position in the judiciary, is essentially being bought by the regime. Now, he owes them," explains El-Borei.
The attorney stresses that Egyptians must remove nepotism from within in order for the judiciary to retain its old glory.
"The problem is that if the people who are supposed to apply justice, are themselves not just, then how can people trust them?" asked El-Borei. "We must work hard because people have lost faith in the judiciary and it will take a long time to win their trust again."
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