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While grappling with many unattended revolutionary demands, Egypt has witnessed during recent months a series of high profile court cases in which rulings and procedures occurred in the absence of a guaranteed independent judiciary.
Since the 25 January Revolution, advocates of an independent judiciary have criticized the executive appointments of judges presiding over the landmark trials of Hosni Mubarak and other ousted statesmen, along with the trials of police and officials accused of killing some 1,000 protesters and — most recently — the trial of international NGO employees.
Although the trial of 43 Egyptian and foreign NGO workers charged with receiving illegal foreign funding is ongoing, Egyptian authorities allowed the foreign defendants to leave the country after their bail money was paid. These judicial breaches have caused uproar in Parliament against claims of interference from the ruling military junta and the interim cabinet. These breaches have also left the Egyptian public wondering about how much sway the executive authorities have over judicial authorities — in this case, and in many others.
“We judges are not party to the NGO conflict. This is a political and diplomatic conflict in which the judiciary was sucked-in,” said reformist Judge Assem Abdel Gabbar, who is also the deputy chief justice of the Court of Cassation.
According to Abdel Gabbar, “This NGO trial has tarnished the image and reputation of Egypt’s judiciary, even more than it was already tarnished.”
Abdel Moez Ibrahim, head of the Cairo Court of Appeals, has been on the forefront of criticism for mediating the travel ban lift on the foreign defendants. And after news circulated about his resignation this week, he denied these reports, saying that he is still authorized to hold his position since the court’s General Assembly has not decided otherwise.
The case has elucidated the lingering question of the independence of the judiciary and raised concerns about other critical cases such as the trials of former regime officials.
Judges actively advocating the independence of the judiciary through the “Independence Current” collective see the solution residing in a legislative change. The Independence Current has been demanding the replacement of Law 142/2006 with a new Judicial Authority Law that guarantees the right of judges — not the executive branch of government — to chose and appoint other judges, the right to administrative and financial independence and the right to discipline corrupt judges.
According to Judge Mahmoud Mekky, “the current Judicial Authority Law allows 60 different pretexts for interference in judicial affairs from the executive branch of government.” Mekky pointed out that the president, prime minister, public prosecutor, along with the interior and finance minister are allowed “legal gateways” through which they may administratively and financially curtail the independence of the judiciary.
However, it is the Justice Ministry which is the most direct interferer. “The justice minister is legally authorized to handpick the judges in certain politicized trials — as we have witnessed in the trial Mubarak and his associates, the ‘Battle of the Camel’ trial, and the trials of those accused of killing protesters during the 25 January Revolution,” Mekky added. The outcome of these trials rests in the hands of judges who have been cherry-picked by the executive branch.
At the request of the Supreme Judicial Council, a draft law was prepared and submitted by Judge Ahmed Mekky, a leading figure in the Independence Current. This draft, followed by another draft formulated by Judge Ahmed al-Zend, president of the Judges Club, was submitted for approval by the ruling Supreme Council of the Armed Forces late last year, but both drafts were shelved. These two competing drafts were resubmitted to the newly-elected Parliament this January.
According to the legal analyst and director of the Cairo Institute for Human Rights Studies, Bahey el-din Hassan, “The differences between the draft law submitted by the Supreme Judicial Council and that submitted by the Judges Club are few, but very significant.”
The differences between Mekky’s draft and that of Zend primarily center on the appointment of the public prosecutor and the judges presiding over specific court cases.
“Zend’s draft generally upholds the status quo,” said Hassan. It keeps the public prosecutor under the control of the executive branch. Regarding the appointment of judges presiding over certain courts, Zend proposes that they be appointed on the basis of their seniority within the judiciary.
Mekky’s draft, on the other hand, proposes that the public prosecutor be elected by judges, while judges should be elected by the top three most senior justices. “Mekky’s draft seeks to challenge the status quo and break free from the control of all executive authorities, especially from the Ministry of Justice,” said Hassan
Hassan pointed out that behind these two draft laws there may be a personal or ideological power struggle between the leaders of the Judges Club and the leaders of the Supreme Judicial Council.
The Supreme Judicial Council plays an administrative role, serving as a disciplinary committee and a body for judicial oversight, and conducting inspections of correctional institutions. As for the Judges Club, it acts as interest group for its members, serving to improve their working and financial conditions. “In this sense the club is more like unions or syndicates,” said Hassan.
According to Judge Abdel Gabbar, “The present leadership of the Judges Club,” especially under Zend, “is in no way representative of Egypt’s judiciary.” Abdel Gabbar added that the purging of corrupt judges and “reform of the judicial system may lead to a Judges’ Club which actually represents the judiciary rather than the ruling regime.”
Meanwhile, a group of 42 judges and lawyers prepared a list of 42 recommendations to guarantee the independence of the judiciary both in the constitution and the Judicial Authority Law. These include requiring the executive authority to impose the emergency law under judicial checks. The suggestions also include that the new constitution should have a separate chapter on the judiciary that treats it as a comprehensive authority and does not fragment it into different courts under different authorities, which is the case in the 1971 Constitution. They added that all administrative decrees should be subject to judicial appeals.
The issue has been taken up by activists. “Plans to reform the judiciary and to promote judicial independence are not sufficient. We demand genuine justice through the judiciary,” said activist Alaa Abd El Fattah, who had been imprisoned for several months in 2006, whilst protesting for judicial independence and again in 2011, for taking part in a mostly Coptic protest in October near the Maspero state television building in which 27 were killed by army violence.