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As the year comes to a close, the judiciary’s engrossing plotline culminates with quite a dramatic scene: stones hurled and birdshot fired at the anti-Brotherhood head of the Judges Club, Ahmed al-Zend, as he leaves the premises.
It is perhaps the most striking summary of a rocky year for the Egyptian judiciary, which has seen judges boycotting the courtroom to engage in battles in the political arena.
Egypt’s political map has changed drastically in 2012 starting in late June with the military council’s power handover to the country’s first civilian president, Mohamed Morsy, who rose from the ranks of the Muslim Brotherhood and its political arm, the Freedom and Justice Party.
Less than six months into his tenure, Morsy’s political affiliations were arguably responsible for fueling intense conflicts between the judiciary and the presidency. The standoff is likely to simmer and peak in 2013 as stipulations in the contentious new Constitution regarding changes in the composition of judicial bodies are applied.
Drafted by an Islamist-dominated assembly, the Constitution was put to a snap referendum in late December via a decision made immune from judicial review by Morsy’s constitutional declaration, which made all his decisions free from judicial scrutiny.
The process through which the Constitution was born has polarized Egypt’s political forces and implicated society at large, as well as prompting judicial bodies to aggressively challenge the presidency.
Amid a 32.9 percent turnout, 63.8 percent of voters said “yes” in the referendum, and once officially passed, the Constitution will have an instant effect on the makeup of the Supreme Constitutional Court. In the longer run, the Constitution is feared to blur the lines separating between different branches of government, most notably the judiciary on one side and the executive and legislative on the other. For the time being, the crisis has strongly entrenched the judiciary in politics.
Hafez Abou Seada, head of the Egyptian Organization for Human Rights, describes 2012 as a black year for the judiciary and expects the coming one to be even darker.
“The entire issue is political and I expect even more tension if the regime does not back down from moves that stir political conflict,” he adds.
A brewing crisis
In the past weeks, judicial bodies have raced to approve or reject the decisions of the ruling power. In some cases, differing stances created rift within the same judicial body.
Morsy’s first brush with the judiciary came just days after swearing in, when he called Parliament to convene for a session in defiance of an SCC ruling that dissolved the People’s Assembly two weeks earlier, due to the unconstitutionality of the electoral law.
Two days later, however, Morsy rescinded the decision — at the time, the military council had consolidated its powers through a constitutional declaration it issued just before the presidential runoff results. Later, Morsy would move to claim those powers for himself and force several of the generals into retirement.
The president has also impinged on the post of prosecutor general twice. The first time he issued a decree appointing former Prosecutor General Abdel Meguid Mahmoud as Egypt’s ambassador to the Vatican, but cancelled it a day later when members of the judiciary protested.
Mahmoud was removed for good and replaced with Talaat Abdallah as part of the 22 November Constitutional Declaration, which not only immunized Morsy’s decisions from judicial review but also protected the Constituent Assembly and the Shura Council from dissolution.
The prosecutor general is typically immune from dismissal by the executive authority, so in response, judges suspended work in courts and prosecution offices nationwide. Ninety percent refused to oversee the referendum. Though Morsy revoked some articles of the declaration on 8 December, the decision to remove Mahmoud is still protected from any possible reversal or review.
Legal experts foresee sequels to the above confrontations playing out in 2013.
The first of these will arise due to articles in the new Constitution which stipulate that the number of judges in the SCC be cut from 18 to 11, thus necessitating amendments to Law 79/1976.
The second issue concerns the post of prosecutor general, and whether Abdallah will remain in office, particularly since he recently resigned after protests by public prosecutors, only to withdraw his resignation days later.
An endangered court
Once the new Constitution is in place, legislative powers will be transferred from the president to the Shura Council, which is dominated by Islamist members. This is critical, as the change in SCC composition requires legal backing, which will be drafted up by the council.
Under the 1971 Constitution, the president had the power to choose the head of the SCC, while the current law authorizes the court to then internally select the remaining members — with the final make-up comprising two-thirds from judicial bodies.
Article 176 of the new Constitution, however, authorizes the president to appoint all members of the court, and the law will determine which “judicial or other entities” nominates them.
Mahmoud Kebeish, dean of Cairo University’s Faculty of Law, says since the change requires an amendment of the law to be carried out by the Shura Council, the “Council might pass a law that names certain legal entities or universities with leaders who have Islamist orientations — it can be tailored to serve the Islamists [powers].”
According to the new Article 176, he explains, the SCC must be composed of a president plus 10 members rather than 17, which means that seven of the current members must be dismissed, with only the most senior members remaining.
When reviewing any single case, the supreme court will have seven members and four substitutes. If a plaintiff requests a change of the judges’ panel, a new panel must be formed with seven new members, which with a smaller court will now not be possible.
Kebeish argues what many have suspected in recent weeks — that the articles pertaining to the SCC were tailored to enable the removal of Tahany al-Gebaly, the 12th member of the court and a key opponent of the Brotherhood.
Gebaly has the right to oppose the Brotherhood so long as that stance does not affect her judicial integrity, Kebeish says, adding that any talk about the SCC conspiring against the Brotherhood is groundless.
Supporters of Islamist groups have held a sit-in outside the SCC since 2 December to prevent the court from carrying out its work and issuing any rulings, namely verdicts on the dissolution of the Shura Council as well as the constitutionality of Constituent Assembly.
In response, the judges suspended work and decried the besieging of their court.
On 14 December, Essam Haddad, presidential aide for foreign affairs, issued a statement in English claiming that the SCC is spearheading the counter-revolution, having “suspiciously” ordered the dissolution of Parliament.
“The supreme court is not conspiring against the president or the Brotherhood, and if it is, why don’t they bring the conspirers to trial?” Kebeish asks.
“The court’s decision to dissolve the People’s Assembly was 100 percent legally sound, and the Brotherhood knows this,” he says. “Why else would they incorporate articles of the Parliamentary Elections Law — which led to the dissolution of the People’s Assembly —into the new Constitution, allowing party members to run for single-winner seats?”
Now that these stipulations are part of the Constitution, he says, the supreme court has no grounds to contest them since it only reviews the constitutionality of laws.
A disputed prosecutor
Also set to be an issue of contention in the coming months is the post of prosecutor general.
Abdallah said on Monday that since his appointment, some prosecution offices have suspended their work and leading members in the circuit have expressed interest in leaving the prosecution to work in courts.
There are other signs suggesting that public prosecutors and the judiciary reject his mandate.
On 27 December, Mostafa Khater, public prosecutor for East Cairo prosecution, released suspects arrested in clashes between Morsy’s supporters and opponents at the presidential palace. Morsy was thus duly embarrassed after claiming the previous day in a speech to the nation that the suspects in detention had confessed to being paid to create chaos.
Khater found no evidence to keep 137 suspects in custody, and kept only 12 pending investigations. Five days later, Abdallah transferred Khater to work as a public prosecutor in Beni Suef for six months, sparking the fury of his colleagues. Soon after, Khater’s transfer was cancelled and Abdallah resigned.
Shady Khalifa, spokesperson for the Judges Club and director general of the Sembellawein prosecution, says, “all of these incidents show the gap between us and the man [Abdallah].”
Khalifa was surprised when Abdallah retracted his resignation and says he was subjected to pressure from the presidency.
Abdallah belonged to the Independence Current of judges, to which the minister of justice and the former vice president also belonged, which is closely affiliated with the Brotherhood.
“The Independence Current harbors historical hostility toward the Judges Club,” says Khalifa, adding that members of the public prosecution want a non-politicized prosecutor general.
“We are not retreating even by one step,” he says. “Either Abdallah resigns or we continue suspending our work, and then we will escalate.”
This piece was translated from Arabic by Dina Zafer
This piece was originally published in Egypt Independent's weekly print edition.