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As a pivotal draft law regulating Egypt’s judiciary is debated, judges face a crucial challenge in agreeing on its nuances and convincing military rulers to significantly diminish executive power over judicial affairs.
Two conflicting drafts are on the table; the first will create a fully independent judiciary, according to the committee that drafted it. Influential Judge Ahmed Mekki heads the committee and is a central figure in the reform movement to separate judicial powers from the executive branch. Head of the Egyptian Judges Club Ahmed al-Zend, meanwhile, proposed the second law, which some reform advocates say pulls the rug out from under the independent judiciary movement.
The main differences between the two draft laws are that Mekki's version will likely have significant political implications, while Zend’s law focuses on the social and economic welfare of the judges.
Many accuse Zend of being pro-Mubarak, though he dismisses such accusations, saying that he only disagrees with the independent judiciary movement because its leaders intervene in political affairs.
“The current head of the club has always been an opponent for the movement for the independence of the judiciary," said Zaghloul al-Balshy, a senior judge and vice chairman of the Court of Cassation. "Under [former President Hosni] Mubarak, he alleged that Egypt’s judiciary was fully independent. Now the question is if the judiciary is independent, why you’re drafting a new law to guarantee the independence of the judiciary.”
Zend's leadership of the Judges Club holds a significant but informal influence over his colleagues.
On 3 July, Hossam al-Gheriany, a leading figure in the independent judiciary movement, was appointed the most influential member of Egypt's judiciary, heading both the Court of Cassation and the Supreme Judicial Council.
Gheriany appointed Mekki, a longtime advocate for judicial reform, to head the committee responsible for drafting a law to replace the widely criticized Judicial Authority Law 142/2006.
Both draft laws agree that judical oversight should be transferred from the Justice Ministry, which is part of the executive branch, to Egypt’s highest judicial body, the Supreme Judicial Council. However, the laws differ widely from there on; Mekki's is a completely new law, while Zend's mainly ammends the existing Judicial Authority Law.
Zend’s proposal would make seniority the only means for choosing judges to preside over the Court of Cassation or the Appeals Court, while Mekki suggests that seniority does not guarantee the most qualified judges will be chosen. His law would require judges to elect each court's president from among the three longest-serving judges working within the court.
According to Balshy and other reform advocates, the draft law prepared by the Egyptian Judges Club is not suitable because it doesn’t tackle the main shortcomings of the existing Judicial Authority Law. Balshy alleges Zend is using the law as a platform for upcoming club elections.
The club, which was established in 1939 as an NGO, has played a pivotal role in contesting the influence of the executive over the judiciary. It also played a pioneering role in confronting the regime of former President Hosni Mubarak following allegations of fraud during the 2005 elections.
Mubarak responded by amending the constitution to remove provisions granting the judiciary full supervision of elections.
Mekki told Al-Masry Al-Youm that his proposed law is only a first draft and not the final version.
“Our strategy is to open public discussion over the law. The head of the Judges Club believes that only judges should take part in the discussions. This is the pivotal difference between our draft law and his,” said Mekki, adding that the draft will soon be distributed to judges during a meeting at the Cairo High Court.
Releasing his draft law ahead of such debate shows Zend is fighting the wrong battle, says Balshy.
“Zend should have waited to see Mekki’s law, and then he has the right to express his disagreements over the draft. People don’t forget that Zend had previously alleged that Egypt’s judiciary under Mubarak was fully independent,” said Balshy.
However, Ezat Agwa, the head of the provincial Judges Club of Alexandria, told Al-Masry Al-Youm that Zend's proposal responds to all the demands of judges.
Agwa said that he opposes the draft law proposed by Mekki because it doesn’t respect the concept of seniority of judges as the only mean to select the presidents of courts. He also said that the judicial authority law shouldn’t tackle issues such as role of prosecution office in supervising prisons.
“Supervision over prisons is irrelevant to the judicial authority law. If you want to have these provisions it should be in the law regulating prisons, not in a law that regulating the judiciary,” said Agwa.
Breaking away from the ministry
Mekki said the most important components of his draft law are in Article 178, which transfers all the powers of the Minster of Justice to the Supreme Judicial Council. This puts judicial affairs in the hands of judges and makes the minister responsible solely for bureaucratic issues related to courthouses, such as construction, security, and non-judicial staff.
Under Mubarak, judges affiliated with the independent judiciary movement criticized former Minister of Justice Mamdouh Marei's decisions, such as referring six judges to disciplinary tribunals, which led to them being fired. A later court ruling reinstated the judges.
Mekki’s draft law also suggests a radical change to make the public prosecutor a judicial appointment that has nothing to do with the executive.
“In order to have an independent public prosecutor, the Supreme Judicial Council should nominate somebody to hold the post. The law also said that the public prosecutor should be chosen from among senior judges in either the Court of Cassation or the Court of Appeals,” said Mekki.
Egypt's president currently has the right to choose any judge to serve as the public prosecutor without consulting anyone and critics often said the post was chosen based on loyalty rather than merit.
Reform advocates agree that choosing the public prosecutor from a list of senior judges will help the office regain people's trust, according to Balshy.
Human rights activists have cast doubts over the prosecution's investigations into the deaths of more than 800 peaceful protesters during the 18-day uprising that toppled Mubarak. One demand of many protests since Mubarak’s departure has been the removal of Public Prosecutor Abdel Maguid Mahmoud because he was appointed by Mubarak and many suspect he is delaying the prosecution of former regime members.
Balshy said Mekki’s draft law also aims to reduce the Ministry of Interior's influence over the prison system by allowing the judiciary to supervise prisons via prosecutors. Previously, only the public prosecutor had a minor supervisory role over Egypt's correctional facilities.
Under Mekki's draft law, the public prosecutor and other district prosecutors are required to file monthly reports with the parliament and the National Council of Human Rights, a semi-governmental rights organization, on prisons across the country.
“This is to guarantee that prisons are not a free zone for torturing people. The provisions enable the prosecution offices to conduct investigations into any kind of ill treatment of prisoners. I mean it’s a step toward the rule of law,” said Mekki.