Egypt’s judiciary risks the jaws of political maneuvering
Understanding the Egyptian judiciary as an evolving institution can help to foresee its future
According to WikiThawra, an aggregating initiative in conjunction with the Egyptian Center for Economic and Social Rights, a total of 41,164 detainees were arrested between July 3, 2013 and May 15, 2014.
With the crackdown on Muslim Brotherhood supporters, political dissidents, activists and journalists, jails and police stations in Egypt are housing thousands of detainees. Among them, there are the three Al-Jazeera journalists sentenced to up to a decade in jail for endangering Egypt’s national security. Although President Abdel Fattah al-Sisi announced that he will not interfere in the verdict, the debate on the Egyptian judiciary and its future returns to be central.
A strong corporate identity operating in a thoroughly authoritarian environment
Understanding the judiciary as an evolving institution can help to foresee its future. In its 60 years of existence, the Egyptian regime has never promoted an independent judiciary. However, especially under the presidencies of Anwar Sadat and Hosni Mubarak, it has attempted to operate in a legal framework at its best. The prestige and relative importance of Egypt’s judiciary emerges from this effort. The 1969 “massacre of the judges” – when 100 judges who had dared support the demand for political reform through the “judges ‘club” were dismissed - was the first important clash between the regime and the judiciary. Indeed, at that time, the judiciary was placed under the control of the executive power.
The risk is that the judiciary will become more politically oriented every day, explicitly violating its original mandateAzzurra Meringolo
In the following decades, the more restrictive enactments were gradually removed and the judiciary acquired some independence. Due to the legalist character of Egyptian authoritarianism, but also to the existence of democratic reformist judges among its ranks, the judiciary has achieved, at least in the last decade, an indisputable reputation for its integrity and a status of relatively deeper autonomy from the regime.
Even if it has obtained real institutional guarantees of independence, this has never been complete. According to Nathan Brown, professor at George Washington University, even if Egyptians’ main legal problem is not “telephone justice,” the judiciary has been negatively affected by a number of factors, namely: the executive appointments of key judicial officials; a carrot-system that rewards cooperative judges; a strong sense of loyalty towards the Egyptian state; a sense of corporate independence in which positions are often passed from father to sons and in which judges are increasingly responsible not only to the law and their consciences, but also each other; an overly authoritarian set of decrees, laws and constitutions upon with to rely; and the poor quality of evidence handed to the institution by the country’s problematic security sector.
As a result, being a complex and sometimes contradictory institution and far from a monolithic actor, the judiciary can be considered both a bastion of the authoritarian Egyptian state and an agent of change.
Egyptian judiciary amidst the war on terror
Like other state institutions after Mubarak’s downfall, the justice system has been hardly reformed, while its works, methods and personnel have been molded by decades of authoritarianism. Since the January 25 revolution, the Judiciary has been involved in a number of politically charged cases. Above all in the last year, the security sector and the executive branch have been entrenched in a self-declared politicized “war on terror.” In this context, it seems that Egyptian judges are taking part in this battle, showing a willingness to promote security and stability at the expense of human and civil rights.
According to Mai el-Sadany, researcher on international and human rights in the Middle East at Georgetown University Law Center, at a time in which “you’re either with us or against us” rhetoric is rife and when what some refer to as a “witch hunt” has ensued against the Muslim Brotherhood and other opposition movements, the question of whether judges are being willingly or inadvertently influenced by the fervor present in the national political climate has become irrelevant; the reality is that such influence is almost inevitable now. As the former head of Cairo’s Appeal Court Rifaa el-Sayed affirms “a judge is a citizen who lives in a society and can feel the nation’s pulse.”
In terms of recent judiciary procedures, while the new regime passed a repressive protest law and a large-scale crackdown on most forms of opposition, several Courts decisions have showed an undeniable willingness to join the “war on terror.” Holding mass trials, trying individuals in absentia and the increasing use of pre-trial detention are worrisome indicators. According to human rights activists even if the principle of remand exists since the founding of the Egyptian system of the rule of law, it has recently witnessed a disproportionate level of abuse. Day by day, it has become an instrument to punish individuals who have not yet been charged with a single crime.
Worrisome trend or norm of tomorrow?
Even if the new Constitution gives the judiciary more independence, in the last months, political statements by judges in positions of power or partisan political stances have multiplied. The judiciary’s actions have often accepted and implemented legislation and decrees that limit a wide range of civil rights, which were issued by the Cabinet.
Regarding the future of the judiciary, the risk is that this worrisome trend becomes a trend for tomorrow.
Thus, the politicization and disrespect for due process may both establish disturbing precedents and undermine the reputation of fairness the judiciary had in the past. In addition, the excessive politicization of the judiciary exposes this vital institution to the ups and downs “of the political game” and is not an optimistic indicator for the country’s political institutional order.
Even without considering the costs of human rights’ violations entailed for such an evolution, the risk is that the judiciary will become more politically oriented every day, explicitly violating its original mandate. The evolution of the judiciary – and its closer relation to legislative and executive powers- may undermine the trias politica principle regarding the separation of powers, which helps preserve fair balance between the different branches of the state.
This could undermine the rule of law, leaving space for the return to an authoritarian state. Nowadays, it is clear that the judiciary and the regime see eye to eye on most things. Thus, even if the judiciary will be more independent, it will serve the new regime’s interests.
Azzurra Meringolo holds a PhD in International Relations, working as journalist and has traveled in the Middle East for years working for the Italian national Radio and Broadcasting Company, Rai,. Contributor to Italian and international newspapers, she is Editor-in-Chief of the IAI's webzine AffarInternazionali and scientific coordinator of the Arab Media Report. She is a researcher within IAI's Mediterranean and Middle East program. Author of I ragazzi di piazza Tahrir, in 2012 she won the Ivan Bonfanti Journalism Award. Her doctoral thesis on Egyptian anti-Americanism won the Maria Grazia Cutuli Prize. In 2013 she received the Indro Montanelli Journalistic Prize. You can follow her @ragazzitahri