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Form of Reform Judicial Reform in Egypt: Lesson from the Developed Countries

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Form of Reform Judicial Reform in Egypt: Lesson from the Developed Countries Form of Reform Judicial Reform in Egypt: Lesson from the Developed Countries By Shams Al Din Ahmed Shams Al Hajjaji A Dissertation Submitted in partial satisfaction of the requirements for the degree of Doctor of Juridical Science in Law in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Laurent Mayali Professor John Yoo Professor Mark Bevir Spring 2016 Abstract Form of Reform: Judicial Reform in Egypt Lessons from the Developed countries By Shams Al Din Ahmed Shams Al Hajjaji Doctor of Juridical Science University of California Berkeley Professor Laurent Mayali, Chair The reform is an ongoing process in any society. It is the sign of the development in different areas. It is not only the technology that is rapidly changing societies, but it also changes the societies, which use these technologies. With the rapid change in the structure of social and economical changes in the world, the question of the reform of social and economical institutions is also rapidly demanding. These institutions are varied. There are private and public institutions. Within the public sphere, the judicial system is comes on the top of institutions that require continuous reform than the two other braches of the government. They are facing the development with their political agenda that change every term (whether five or four years in office). On the other hand, it is hard to find a judicial system develop as fast as the development of the legal system or its politics. In Egypt, the judiciary did not witness any serious reform since 1949. During this period until the present day, the country witnesses several social and economical developments. Monarchy system, Socialist system, social-democratic system, capitalist system and Islamic system are political and social systems apply in Egypt in the last sixty years. In the past two decades, there was a great call and debate about the necessity of a new reform of the judiciary to face the rapid social and economical change in the country. This reform takes only one shape, which serves the economic development and the foreign investment. On the other hand, the social reform was a secondary. After the 25th of January Revolution, the debates about reform reaches its uttermost. The main argument was whether to reform or to maintain the current form of the judiciary. In case of maintaining the call for a reform, what are the issues that need to be reformed and what is the other that cannot be reformed. However, after the Military Coup of 3 July 2013, the debate settles down with maintaining the status quo of the current form of the judiciary. This dissertation argues that the reform shall take place in Egypt. The current status of the judiciary is not the best for any political, social and economical development. The dissertation is divided into six chapters, and introduction and conclusion. The first chapter is a historical background of the judicial development since 1949, which is the end date of the mixed courts in Egypt. The second chapter tackles the question of why is it important to have a reform. This chapter introduces political, economical, and social reasons to introduce a reform to the judicial institution. The last four chapters deal with four of the contemporary issues. These issues are judicial independence, judicial accountability, judicial appointment and judicial unification. Each chapter introduces the current status of the certain issues and the pending problems that need to be reformed. It, then, presents the solution to these issues in five countries, which are the United States, the United Kingdom, France, Germany and Russian Federation. After presenting each of these jurisdictions, each chapter offers an assessment to each solution offered from these different jurisdictions. Finally, each chapter offers a certain form of reform and the reasons to adopt such reform. ! 1! ! Dedication To the loving memories of my grandparents i! ! Outline: Abbreviations iii Acknowledgements iv Introduction 1 Chapter One: Historical Background: The Reform process in the age of the Republic 17 Chapter Two: The Cause for Reform The Demand for Judicial Reform in Egypt 46 Chapter Three: Judicial Independence Judicial Independence versus judicial autonomy 66 Chapter Four: Judicial Accountability: Toward a new role for the public in the judicial accountability 99 Chapter Five: Judicial Appointment Judicial Appointment Authority versus Judicial Appointment Qualification 119 Conclusion and Recommendations 148 References 167 ii! ! Abbreviations: MoJ Egyptian Ministry of Justice CoC Court of Cassation SJC Supreme Judicial Council SCL Supreme Court Law SCC Supreme Constitutional Court SCCL Supreme Constitutional Court law JAL Judicial Authority Law CTI Committee of Temporary Issues JID Judicial Inspection Department NCJS National Center for Judicial Studies IJM Independent Judicial Movement CAO Central Auditing Organization SCJI Supreme Council for Judicial Institutes SCSC Special Committee for the State Council MB Muslim Brotherhood SCAF Supreme Council of Armed Forces NDP National Democratic party ICC International Criminal Court SCD Supplementary Constitutional Declaration CAPMAS Central Agency for Public Mobilization and statistics MENA Middle East and North Africa GID General Intelligence Directorate BGB German Civil Code (Burgerliches Gestexbuch) OJC Office for Judicial Complaints ENM Ecole Nationale d’Administration CRA Constitutional Reform Act HMCTS Her Majesty’s Court and Tribunal Service iii! ! Acknowledgments: I wish to thank professor Laurent Mayali for his continuous help and support during writing this project. Without his help this project would never have been convened. I wish also to thank professor Mark Bevir for their insightful comments. I would like to thank professor Nathan Brown for his input, during my Fellowship in Tunisia. I would like to thank Rory Collins for his helpful and constructive edits, which were invaluable to the completion of this research. The work in this dissertation would not have been done without the help of my beloved wife. This research would not have been possible without of the honorable men of the Egyptian Judiciary. These honorable men give me hope for reform for the betterment of the Egyptian Judiciary. iv! ! Form of Reform: Judicial Reform in Egypt Lessons from the Developed countries I. Introduction Judicial reform occurs to ensure full protection of individuals’ rights. The judicial authority is the last resort against brutal aggression from the executive branch against citizens’ right. The lack of an independent and accountable judiciary would render it from enforcing such role. A priority reform to a judicial system has to start with these two concepts, as they are the core of serious judicial reform. Furthermore, the lack of judicial accountability and independence could potentially jeopardize human rights and liberties. For example, a Ministry of Justice , which chooses to interfere in judicial decision- making, may result in a judiciary lacking in independence on one hand. On the other hand, a complete lack of judicial oversight and accountability could have an opposite effect, and result in judicial corruption. The development of the concepts of judicial independence and judicial accountability has passed through several iterations since 1880s. It started with a transplant of the first modern civil code from France in 1883.1 The successive reforms reflect the growing understanding to what judicial independence and accountability should be. The reform of these two concepts took place twice during the monarchies during the period of 1880 until 1952. During these periods, the two concepts were progressed from absolute authority of the King over the judiciary to ensuring complete independence of the judiciary in 1925. On the contrary, during the republic period (1952- present), successive presidents ensured their authority over the judicial power. The political regimes that followed the 1952 Revolution were determined to weaken the judicial system. Totalitarian regimes cannot tolerate an independent judiciary to compete its ultimate power.2 The state developed a plan to eradicate judicial power in favor of the Social Party, which has different names with different presidents. This track started when the regime came down with a heavy hand on “disobedient” judges in an act called the “Massacre of Judges” (1965-1969).3 President Nasser did not stop at forced resignations of judges, but the aggression continued with jurist and law professors, which was represented in the infringement of al-Sanhuri.4 Beginning in 1970 and continuing through 2010, many judges who survived the massacre formed the “Independent Judicial Movement” (IJM). They campaigned and organized secrets meetings to support their goal of judicial independence and reform in Egypt. The leading figures of this movement were al- Gheriani,5 Mikky,6 and Genenia.7 However, they were not able to enforce any reform to the system, as !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Ian Edge, Comparative Commercial Law of Egypt and the Arabian Gulf, 23 CLEVELAND STATE L. REV. 129 (1985), 132. 2 EGYPT: DISCIPLINARY ACTION AGAINST JUDGES A CHALLENGE TO JUDICIAL INDEPENDENCE, Amnesty International, (April 2006), HTTP://WWW.AMNESTY.ORG/EN/LIBRARY/ASSET/MDE12/007/2006/EN/AD6E6121-FA07-11DD-B1B0- C961F7DF9C35/MDE120072006EN.PDF 3 AMR SHALAKANY, IZDIHĀR WA-INHIYĀR AL-NUKHBA AL-QĀNŪNIYYA AL-MIṢRIYYA (2014), 10 4 Amr Shalakany, The Trouble with Sanhuri,
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