A Clash of Institutions : Judiciary Vs. Executive in Egypt in : Bellin E

3 A Clash of Institutions: Judiciary vs. Executive in Egypt Nathalie Bernard-Maugiron Since the overthrow of Hosni Mubarak in February 2011, the judiciary has emerged as a central political player on the Egyptian scene. During Mohamed Morsi's year in power, members of the judiciary filled explicitly political posts in government, with prominent judges holding positions as vice president, justice minister, and chair of the Constituent Assembly. Courts increasingly weighed in on sensitive political issues, often in conflict with the executive and legislative branches. In retaliation, the executive and legislature took steps to discipline the judiciary, reduce its political influence, and even purge political opponents among them. After Morsi's ouster in July 2013, judges were accused of taking their revenge by prosecuting Morsi and his supporters. The courts cleared Mubarak and his top officials of all charges, failed to investigate members of the security forces on charges ofkilling protesters, and sentenced mem hers of the Muslim Brotherhood and prominent secular opponents to jail for participating in peaceful street protests. Such rulings rendered the judges susceptible to accusations of delivering selective justice. By taking what were considered explicitly political decisions, the courts have been accused of overstepping their authority. This perceived overreach has shaken public confidence in their standing as a dispassion ate institution. In addition, the designation of the speaker ofthe Supreme ( 'onstitutional Court as interim head of state in 2013 (to serve until new elections could be organized) constituted a new high in the judieialization or politics or, worse, the politicization of the judiciary.' Furthermore, none ofthe regimes that have ruled the country since February 2011 have undertaken the passage or the long-anticipated reform of the judiciary. 1-\ I../iun or mn/fUmJfl$: JIJC1/C/iJry vs. executlve ln egypr 11 The position of the judiciary in Egypt is thus at one ofits lowcst points in 4 reeent history. 1 JIll' (Ir frcc clcctions and l'cal ,ÎlIdicial indcpcndence. They resorted to n.ew tlWHII:- of pressure, such as making statements to newspapers, grantmg lnll:rvicws to satellite channels, and even organizing sit-ins and demonstra The Judiciary on the Political Field IIOIIS. The reformist judges also threatened to refrain from monito.ring the 1I1'coming elections and constitutional referendum unless the reglme met lill'ir demands for legal reforms. This is not the first ti~e in ~~tian history that elements of the judiciary For their independence and assertiveness, the reformist ju~ges paid, a have been seen as bemg pohtIcally active. Under Mubarak, the judieiary high price. Not only did the govemment refuse to respond to thelr two mam had served as an arena for pursuing political objectives in defiance of the \klllands, but the judges and their club were subject to s~v~ra~ mea~ures ~f ~egi~e in ?owe~. The courts had challenged the authoritarian regime by 1(·taliation. Several reformist judges were referred for dlsclphnary mvestI lssumg ruhngs almed at guaranteeing a variety ofpolitieal rights and free Su~reme ~?unciI. ~oms (Moustafa, 2003,2008). The courts' assertiveness led to the paradox galion and their immunity was lifted by the Judicial supe~~smg leal outcome that under the Morsi regime judges were accused of being 1kyond that, in 2007, judges were deprived ofthelr role of the wa~ amen~ed supporters.ofMubarak and the army, whereas during the Mubarak era they Villing process. That year the constitution to expltcltly pro Vide that judges would supervise general polhng statIons only,. and hence were ~on~ld~red to be one of the few counterweights to the president's au~ontananlsm. lùrth, state employees, and not specifically judges, would presIde over the Equally paradoxical, under Morsi, judges were aceused of 5 bemg Opponents of Islamists, whereas under Mubarak, they were accused primary polling stations as had been the case before 2000. , Another example ofjudicial assertiveness under the Mubarak reglme (by regime elites trying to tarnish their reputation) ofbeing infiltrated by the MusIim Brotherhood. :d:-o focuses on the battle for free and fair elections. Besides fighting for ludicial supervision ofthe voting process, in 2005 judges also supported the campaign by NGûs to ensure the transparency of the. ball~ts.6 Sev.eral Judiciallndependence Prior to the 2011 Uprising hllman rights NGûs had submitted a request to.the ~re~ldentIal El,ectIons ( 'ommission for permission to observe the electlons mSlde the polhng sta lions When the NGOs failed to receive an official reply, they challenged The political independence and assertiveness of the judiciary prior to the Ihis i~plicit refusaI by bringing a case before the Stat~ CounciJ.7 In an act January uprising can be iIlustrated by several examples. The first Concems a~ree~ hea~ the leading role played by the judiciary in advocating for free and fair con of surprising political independence, the State Councll to the El~ctlOns duct of elections during the Mubarak era. Until the year 2000, state case. (Article 76 ofthe constitution provided that the PresldentIal Commission decisions could not be challenged by any other authonty and e~ployees w~re assigned responsibility for overseeing the voting process in aga~n~t pru~ary. polhng stations. Judges, by contrast, were assigned the role of Ihat only the commission itself could examine appea.ls its ?wn deci sions.)8 After hearing the case, the court held that smce clvIl.s~clety o~ga mOnItonng ~eneral polling stations where the counting ofballots was per nizations, including human rights NGOs, were focused on revlVln,g the ldea formed. But In 2000, the Supreme Constitutional Court ruled that in aCCor of democracy in society and ensuring the transparency of electIons, th~y dance with Article 88 ofthe constitution of1971, the entire electi~n process had to be authorized to observe the electoral process, so long as they dld had to be performed under the supervision ofmembers ofjudicial bodies. not hinder the work ofthe polling stations. This ~ling m~ant that judges should supervise both general and pri But the conflict did not end there. The Presidential Election Commis ~ary polhng statIons. The Supreme Constitutional Court's ruling was sion challenged the State Counci!'s competence to rule on this issue, and l~ple~ented f~r the first .time in the elections of 2000. During these elec Co~~, tIons, Judges wltnessed Wldespread fraud and irregularities and complained after appealing the decision to the Supreme Administrative it had the ruling revoked, The Electoral Commission in charge oforganlzlDg the par ~a~ the~ were asked to certify rigged elections.2 They requested full super liamentary elections then announced in a press release that NGûs and the ~1Sl0n nghts over the entire election process, from the preparation of voter hsts to the announcement of the results. The battle was led by the Judges' National Council for Human Rights would be authorized to observe the par Club,3 ruled by the "Independent Current," a faction ofjudges who put for liamentary elections on the condition that they coordinate their actions and ward a platform ofdemands for democratic reforms. that they be "neutral" (i.e., have no political affili.ati.on and have no me.m ~efused t~ provld~ Beyond this show of assertiveness, in 2005 a number of reformist bers participating in the elections). But the commISSIon bnn~ judges from civil and criminal courts launched a protest movement to advo- an official response to the NGOs directly. The NGOs declded to a SUlt to the Court ofAdministrative Litigation. On November 6, 2005, thlS court A l.llun Of mntnmOM: Juotctary vs. t:xec:uuve /fi t:gyP{ 33 rcs~on~cd ~àvorably to the NGOs' request. It struck down the commission's cntirc civil and criminal judicial system (nomination, judicial promotions, tac~t reJectlOn of the NGOs' request, maintaining that civil society organi assignment, salaries. transfcrs. and disciplinary actions). lt is composed of zah~ns should b.e grant~d authorization to observe the balloting without .co~rdmate seven members: the president ofthe Court ofCassation, the president ofthe havmg to wlth the National Council for Human Rights. The ('airo Court of Appeal, the general prosecutor, the two most senior vice cou~ also mSlsted that NGOs be present during the counting of the ballots presidents of the Court of Cassation, and the two most senior vice pr~si argumg.that the r~l~ of civil soci~~ or~anizations was to allow the peacefui expr~SSlO? ~pmlOns a~d dents of the courts of appeal. From the above it is clear that these offiCiaIs of partlclpahon for the political, social, and eco owe the lion's share of their positions to executive appointment. Judicial nomlc edIf1cahon of society. The assertiveness of the courts meant that independence is compromised by the fact that the members ofthe Supreme NGOs ~anaged to have access to the primary polling stations to observe .1 udicial Council are not elected by the ranks of the judiciary as reformist the voh~g process. In this case judicial independence and activism deliv .i udges have demanded. ered a. VIC.tOry f~r more transparent elections despite the intentions of the authontanan reglme. A third means of executive interference is exercised through the Judl eial Inspection Department. This department oversees ·the technical evalua lion ofjudges and members of the prosecution and oversees the annu~l judicial "movement" project (rotation of judges). The members of thlS Interference of the Excutive Power ~eav~s in the Affairs of the Judiciary 'department are nominated by the Ministry ofJustice, whic? t?e door open to possible abuses. Ajudge who is diffident about mmlstenalmstruc tions could be penalized by a negative evaluation that might have harmful T~e~e il1~strations ofjudicial independence in Egypt are aIl the more sur gl~en consequences for his career or altematively find himself posted to a court pnsmg the numerous laws and conventions that have long enabled far from his family with bad working conditions.

Load more