The controversial issue of appointing female judges to Egypt’s authoritative State Council took another turn on Monday, when State Council head Mohammad el-Husseini ignored a majority vote by the council’s general assembly barring the appointment of female judges to the council.
The State Council, or Maglis el-Dawla, was established in 1946 and is considered Egypt’s highest legal body. It is tasked with deciding administrative disputes with regards to the exercise of state power.
The general assembly ruling was seen as a step backwards by Egyptian women’s rights activists.
According to Khaled Ali, head of the Egyptian Center for Economic and Social Rights, the issue first came to the fore in the summer of 2009, when some 300 women applied for positions as judges. They were subsequently screened and interviewed.
As a result, 95 judges requested an emergency meeting of the general assembly last February to discuss the question of hiring female judges. At a 15 February meeting, 334 out of 380 judges voted against the appointment of women to the council.
“The judges opposing the appointment of women were empowered after they saw the call for male-only applicants by the Public Prosecutor in January,” Ali said.
Nevertheless, el-Husseini ordered a continuation of examination procedures for the female applicants, ignoring the assembly vote, which soon led to an internal conflict. Some judges even tabled the idea of ousting el-Husseini from his post due to his decision. Judges in the assembly expressed surprise over el-Husseini’s stance, which basically disregarded the highest authority within the council.
“Voting on a constitutional right is not acceptable,” said Ali, who has raised two court cases against the decision at the High Administrative Court and the Administrative Court. “It will be difficult for the general assembly to contend the cases on any substantive basis. What’s expected is that the appeal will be rejected because the assembly’s vote will not be treated as a decision, but rather as a recommendation,” Ali told Al-Masry Al-Youm.
Last week, Egypt accepted a recommendation at the UN Human Rights Council in Geneva to work on ending gender-based discrimination.
There precedents for female appointments to the Egyptian judiciary in a number of different courts. Tahani el-Gibali’s appointment to the Supreme Constitutional Court by the Supreme Judicial Council–endorsed by President Hosni Mubarak in January 2003–represented a milestone. There are currently 42 female judges in general courts and many more in the Administrative Prosecution Authority and in state courts.
Civil society figures that oppose the ban on female appointments to the State Council view the move as in total contradiction with rules laid down by the Supreme Judiciary Council.
The State Council already has a record of bias against female judges.
Lawyer and professor Aisha Rateb applied for a position in the State Council in 1949, but was denied on the basis of gender. In a court case she subsequently raised against the government, it was ruled that nothing in Egyptian law or Islamic jurisprudence could prevent women from working in a judicial capacity. The court concluded that her would-be appointment represented a "social" issue, in a case that stirred wide public debate at the time.
The religious position on the matter has not changed much since then.
“There is no categorical religious reference that alludes to women’s incapacity to become judges,” said Abdel Moati Bayoumy, professor of jurisprudence and philosophy at Al-Azhar University. According to Bayoumy, different schools of jurisprudence have different opinions on the matter. While some schools, such as those of Al-Tabary and Abu-Hanifa, endorse female participation in the judicial branch, other jurisprudents, such as Al-Malki and Al-Shafei, oppose it.
“My personal take is that if women were barred from entering the judiciary in the past, current conditions are different. Women are more informed. The judiciary is more elaborate. The law is clearly written," said Bayoumy, who is also a member of the Islamic Studies Institute. "A judge is not in a position to make individual decisions, and that makes it easier for women to be judges.”
But not everyone agrees with Bayoumy. Lawyer Rabaa Fahmy, for example, thinks differently.
“Let women become judges. But what are the societal guarantees that they will be able to do their work properly?” she asked, in a reference to the “consistent pressures and corruption” marring the judicial process in Egypt. “There has to be a proper political environment for women to be able to operate in the judicial system,” she added.
Fahmy, for her part, downplayed the general assembly’s vote against the appointment of female judges. “There are other priorities in terms of women’s rights that need to be addressed and worked on," she said. "This issue is only secondary.”