Q&A: Reformist judge Hesham El-Bastawisi on the revolution, constitution and future of Egypt

Hesham El-Bastawisi is a pro-reform judge who in 2005 threw himself, along with other judges, into a fierce confrontation with the regime of former president Hosni Mubarak over the issue of judicial independence. The 59-year-old vice-president of Egypt’s highest appellate court–the Court of Cassation–distinguished himself as a vocal critic of state intervention in judicial affairs, refusing judges’ involvement in fraudulent elections. In reprisal for his defiant attitude, the Mubarak regime referred him and a colleague to a disciplinary court in 2006. Shocked by the decision, El-Bastawisi suffered a heart attack.

That was the moment he emerged as a national hero. Dozens of sympathizers flocked to the hospital to which he was transferred to express their support for his cause. In the meantime, hundreds of protesters took to the streets to denounce the prosecution of the two judges. Eventually, the court pardoned Justice Mahmoud Mekki, also a vice-president of the Cassation Court. Although it was expected to sack El-Bastawisi, the government was content to reprimand him.

Yet the verdict did not mark the end of the harassment to which El-Bastawisi was subject. In 2008, he decided to travel to Kuwait to avoid what he described as “obscene and evil” state pressure. But as soon as Egypt's 25 January uprising erupted, he immediately returned to his country.

Al-Masry Al-Youm spoke with El-Bastawisi in his apartment in Nasr City about his assessment of the revolution and where Egypt is going. El-Bastawisi also talked about his plans for the future in light of a recently-launched Facebook campaign calling upon him to run for president. 

Al-Masry Al-Youm: How did you feel when you first heard about the 25 January uprising?

Hesham El-Bastawisi:I expected it to happen right after the Tunisian revolution took place. I believed that the people would take to the streets and topple the head of the ruling regime. Actually, I expected it to happen since 2008. I even wrote about it in the press. 

With Tunisia revolting, I realized that the countdown to zero-hour had already begun, but I could not predict when exactly the revolution would happen. When people took to the streets on 25 January, I was not sure that their protests would eventually culminate into a revolution. It was a group of young people that took the lead but the police resisted them very brutally. I believe that it was such brutality that exacerbated the situation and drove more people to join the protests after years of disenchantment.

Al-Masry: How did you feel while watching the news from Kuwait?

El-Bastawisi: All Egyptians there were sleepless and many decided to head back to Egypt. Those who could not return felt jealous of their compatriots who were already there. They wanted to participate.

Al-Masry: Did you personally feel jealous?

El-Bastawisi: Of course, I wanted to come back since the first day, but I agreed with a group of my colleagues that that I should not return right away.

Al-Masry: Why not?

El-Bastawisi:Because I had been in Egypt and left for Kuwait two days before the revolution broke out. I did not want to seem like I was trying to attribute this revolution to myself or get credit for something I did not do. I preferred that the revolution be attributed to those who led it, including the youth and poor classes that participated. Some famous figures had returned, and I personally believed that they should not have done so. 

Al-Masry: What future is awaiting Egypt?

El-Bastawisi: I always believed that Egyptians were hungry for freedom and democracy and were not satisfied with the level of hypocrisy that prevailed. Dictatorial regimes always lie. They claim they are practicing democracy while installing dictatorship. They say the judiciary is fully independent while treading on the judges' turf. They torture people and claim they respect human rights. Egyptians were annoyed by this dualism and were predisposed to revolt.

Al-Masry: Looking back on your struggle for judicial independence, what would you say now?

El-Bastawisi: People already knew that the judiciary was not autonomous and had little faith in judges. But when a group of judges who wanted their full independence came out and said frankly that the executive branch was interfering with the judiciary, people began to regain faith in judges.

Many people started to back our movement and staged protests in support of our demands. In the meantime, youth-based groups began to emerge to support us and I believe that was the nucleus that produced the 25 January Revolution. I am not saying the judges were the primary players, but they gave people hope.

Al-Masry: What happened to your movement later on?

El-Bastawisi: The state used all kinds of pressure and tried to instill divisions among judges. Some of these pressures were obscene and evil which drove some of us to leave the country.

We had to put up with a lot of pressures…The state managed to thwart the movement for an independent judiciary, but it did not realize that our demands became part of the Egyptian collective consciousness and that people would build on the movement later on. I believe this is what happened.

Al-Masry: What do you mean when you say "evil and obscene" pressures?

El-Bastawisi: The trial was what the state did in public. But in private, it was tapping my phone as well as my family’s phones. I was subject to surveillance. Besides, my wife and I used to get harassed over the phone. I do not want to talk further about that–I am over it now. We are living in a new era, so let’s think about the future.

Al-Masry: Did you feel defeated when you left Egypt for Kuwait?

El-Bastawisi: I was convinced that we won the battle. The state was forced to go back on its initial plans. Initially it wanted to sack us and refer us to a criminal court. But, thanks to public pressure, it was forced to pull the case back from the state security prosecutor.

Then, we were referred to a disciplinary court. There was an intention to sack us, but, again due to street pressure, the government changed its position. Of course, we won the battle. It is true that we did not get all that we asked for, but the state was forced to heed two important demands.

The Supreme Judicial Council was put in charge of our budget. So we got an independent budget, although a slim one. Secondly, judges became able to appeal disciplinary verdicts. We were also demanding either to monitor the elections from start to finish or not be involved in polls at all.

The state had to change the constitution and create a commission with a bunch of selected judges to monitor the elections. Hence, vote rigging is no longer attributed to all judges. Also, the most important benefit that we got was people’s support. Egyptians regained faith in judges and realized that there are justices that still value their independence.

Al-Masry: How would you describe the situation of Egypt's judiciary for the last couple of years after you left?

El-Bastawisi: It is not about the last couple of years but the last 50 years. The judiciary has been suffering from state intervention. Such interference led to a dangerous situation. It caused divisions among judges because the state managed to create two types of them.

One group was co-opted and, unfortunately, they supported the executive and heeded its demands. Another group defended their independence but the state held them as enemies and accused them of meddling in politics.

Al-Masry: Are you planning on running for president?

El-Bastawisi: First of all, nobody should be thinking of themselves or contemplating their own projects at this moment. We should all be thinking about the best ways to pass this phase.

Secondly, nobody should say he will run for president unless there is a public demand for him to run. Otherwise, he would be guilty of self-promotion. Third, since I am still a judge I cannot run for president, engage in any political activity or hold any political post. I would have to resign first.

Al-Masry: But wasn't it reported that you said you would run for president?

El-Bastawisi: What happened is the following: some people had started a campaign on Facebook calling on me to run for president. Then I was hosted on a television show and somebody called in and asked me to nominate myself because, he said, I was the best person for this post.

The hosts took it from there and asked me if I intended to run in the elections. I said no and added that we did not even know the eligibility conditions yet. They told me, "Let’s presume you are eligible. Would you nominate yourself?" I replied saying: "If I am eligible and if a large number of people wanted me to run, I may take that step because running for president then will be a national duty."

However, I have not taken such a decision or formally announced it.

Al-Masry: If you ran for president, what priorities would you have on your agenda?

El-Bastawisi: If I decide to run for president, I will not give myself the right to draft a platform independently. People who asked me to run should write it with me. Otherwise, I would not be practicing democracy.

However, I hope that the platform would start with how to bring back the dignity of the Egyptian citizen–Egyptians faced a lot of humiliation. Plus, a genuine democratic system should be instated. People should learn how to practice democracy in schools and factories.

And elections should be fair and people should have the right to express their views and take part in the decision-making process. Additionally, education should be a matter of top priority, especially since it has been ignored for so long. Small budgets were allocated to education.

We should also concentrate on scientific research. No development can be achieved without scientific research. Moreover, we should live in other parts of Egypt. Eighty million Egyptians cannot remain on the same tiny strip of land.

Al-Masry: Do you think you are fit for the presidency?

El-Bastawisi: Anyone can be fit as long as he has faith in the Egyptian people, has a vision for Egypt’s future, believes in democracy and consults people before making any decision.

Al-Masry: Why did you decide to end your contract in Kuwait and return to Egypt?

El-Bastawisi: It is not because I do not feel comfortable. On the contrary, I am very happy there. But I left Egypt for certain reasons and most of these reasons do not exist anymore. I left because of the harassment, which made me feel that the ruling regime could not tolerate my presence anymore.

Now, fortunately, the situation has changed and a lot of people have asked me to return. 

Al-Masry: What role could you play in the transitional period?

El-Bastawisi: My main job is in the judiciary. So I will go back to the judiciary. I will do my best with my colleagues to reform the judiciary. I will also express my views on national matters within the limits a judge should respect.

If I find out that I am required to play a role that a judge should not play, I will resign and get engaged in politics by joining a political party.

Al-Masry: There is a debate about the type of constitution we should have. Some say the parliamentary system is more suitable to Egypt while others speak of a presidential system.Do you have an opinion on this?

El-Bastawisi: It is too early to talk about that. Debates over presidential versus parliamentary constitutions and the controversy over the second article of the existing constitution are not appropriate for now. We have to focus on how to get through this transitional period first.

Later on, we can discuss these matters. This transitional period should have a temporary constitution because the old one became obsolete the minute the regime was toppled. The 1971 constitution no longer exists. From the legal and constitutional perspectives, that constitution cannot be suspended. This suspension will lead to a lot of problems and make the decisions of the armed forces unconstitutional.

Even the upcoming elections will be deemed unconstitutional because the old constitution has no article saying that the military council can run the country or that the president has the right to delegate his authorities to the military council.

Al-Masry: From a legal perspective, what should be done?

El-Bastawisi: First, we should recognize that what happened was a revolution. Second, in order to bestow legitimacy on the involvement of the military forces, a temporary constitution should be drawn up. That new constitution would derive its own legitimacy from the revolution.

The ongoing constitutional changes can serve as a temporary constitution. If we do so, no appeals can be filed in the future and the military council will have a legitimate presence. Moreover, the remaining demands of the revolution have to be met.

General Ahmed Shafiq should be sacked because he was appointed by President Mubarak and prisoners should be released unless they were jailed for criminal reasons. I can understand the military may want to extend the state of emergency for a couple of months, but it should not last for longer than that.

Al-Masry: What is your assessment of the performance of the armed forces during this transitional period?

El-Bastawisi: The military council seems to have good intentions and I believe it wants to heed the people’s demands. However, they are going a bit slowly while people want things to go faster and sense the change. There are matters that need to be decided right away, including the formation of the cabinet. The cabinet should be impartial and not belong to any party.  

Al-Masry: In your opinion, what is the best constitution for Egypt after the transitional period?

El-Bastawisi: The best constitution is what people will choose after the transitional period. And people will not be able to choose unless we open the floor to discussion and debate. Experts should come up and explain what a presidential constitution means and elaborate on its pros and cons. They should do the same with the parliamentary system, as well as the mixed system.

I am personally convinced that a mixed system is the best for Egypt. Under such a system, the president will have limited authority and parliament will have genuine oversight. The cabinet should be formed by the party that wins a parliamentary majority and should have authorities that have nothing to do with the president. 

I think this would be the best system, but I believe other viewpoints are valid too. 

Al-Masry: Are you optimistic for Egypt's future?

El-Bastawisi: Yes I am. And I have full faith in the Egyptian people. Over the course of history, Egyptians have proven that whenever they have the opportunity, they offer the best to human civilization and the betterment of human life.

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