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Tareq al Bishri: In the Spirit of Democracy
In order to understand what caused the confrontations in the last few months between the judiciary branch and the government, it is important to examine the history of the judiciary in Egypt and its evolution until today. . . Tareq Al Bishri writes Tareq al Bishri: In the Spirit of Democracy, Independence According to Culture Not La
Saturday, May 13,2006 00:00
by Asharq Al-Awsat

In order to understand what caused the confrontations in the last few months between the judiciary branch and the government, it is important to examine the history of the judiciary in Egypt and its evolution until today. . . Tareq Al Bishri writes


Tareq al Bishri: In the Spirit of Democracy, Independence According to Culture Not Law

In the last few months, Egypt has been gripped by public and violent confrontations between the judiciary branch and the government, with judges making unprecedented calls for judicial independence. In order to understand what caused these confrontations, it is important to examine the history of the judiciary in Egypt and its evolution until today.

In order to determine the general characteristics and the history of the judicial system in Egypt, it is important to examine its evolution, starting in 1882, when civil courts were founded, inspired by European legislations. Until the 1919 revolution, Egypt lacked a real constitutional system to guarantee the independence of the judiciary. Amongst the judges practicing at the time were Saad Zaghloul, Abdulaziz Fahmi, and Qassim Amin, who had a played a significant role in Egyptian political and cultural life at the time.

The 1919 revolution called for independence from the British and the establishment of a democratic regime that would undermine the powers of the King. It succeeded largely but was incomplete. In 1923, a constitution was adopted as a balancing act between the political and social powers of the national democratic movement and the forces allied to the king and the British occupier. The constitution stipulated an independent judiciary. For the next 30 years, power alternated between these two forces in Egyptian life. Ten parliamentary elections were held and a number of cabinets were formed, lasting on average 10 months. The longest serving cabinet remained in power for almost 30 months.

At the time, the Egyptian judiciary’s independence was founded on the contributions of leading figures and the political balance between the main institutions at the time. The justice ministry was responsible for appointing judges and was headed by 38 ministers in 30 years, with each minister spending less than a year at its helm. The minister of justice was, in most cases, chosen by former judges or by lawyers loyal to parties that were well aware that in a year or two, they would be standing in court defending the freedom of the party that they belong to and the rights of their supporters. The law on the independence of the judiciary was not issued until 1943. It is worth mentioning that the figure behind the 1943 law was lawyer and secretary general of the Wafd party, Sabri Abu Alam.

During this period, judges were responsible for maintaining the balance between different social groups in Egypt, each with its own point of view regarding issues such as personal freedoms and public rights, in addition to facilitating the public’s daily transactions. It most cases, the courts ruled in favor of legality, democracy and personal freedom. The judiciary in Egypt thrived in the 1940s, with the issuing of the law guaranteeing the independence of the judiciary, and with the creation of the State Council and the abolishing of mixed courts, which had jurisdiction over foreigners in Egypt.

When the conflict in Egypt flared up during the three decades mentioned above, most judges absolved those involved in cases of freedom of the press or other publications and did not hand out death sentences in cases of political assassinations, taking into consideration extenuating circumstances. It is important to mention the cases of the assassination of Judge Ahmad al Khazindar, head of the Criminal Court at the time, in 1948 and the assassination of Amin Othman in 1946, a former finance minister in a Wafd government, as well as the case of the bombing of Cinema Metro. The State Council issued its rulings and ordered the annulment of decisions to expropriate newspapers and detain politicians.

This took place without allowing politics to interfere in the judiciary and by strictly following Egyptian laws and regulations.

However, when the Free Officers came to power in a military coup on 23 July 1952, in a nationalist but undemocratic revolution, they soon established themselves as “the sole political force” in Egypt and created a single political system where the judiciary was annexed to politics. They also followed a nationalist policy to develop the country and attempted to achieve social justice and re-distribute wealth.

With the exception of a number of procedures taken by the State Councils including removing Dr. Abdul Razak al Sanhouri from its presidency and the consideration the government gave to fill the post of public prosecutor, the new government did not interfere with the judiciary and did not put pressure on it or seek to sway its rulings. Instead, it followed an alternate route and issued laws that regulated and sanctioned the prosecution of individuals for criticizing or taking part in certain areas considered politically vital by the government, such as the army and the agrarian reform project. It also created military or private tribunals to try its political opponents, such as the people’s court and the revolutionary court. This sidelined judges in issues of the state but maintained their importance over the daily lives of the Egyptian people. These, in principal, remained free from government influence and interference.

The situation remained the same until the defeat in the Six-Day war in 1967, which weakened the political regime and shook its credibility. It also gave impetus to its political opponents of all persuasions. The government weakened and was no longer able to impose its control over the judiciary or carry out special trials. The government therefore began to consider joining the legislative to the Arab Socialist Union. Judges were opposed to these moves and the General Assembly of the Judges Club issued a landmark statement on 28 March 1968 to signal its opposition. In subsequent elections at the Club, candidates who sought independence from the government prevailed over the government-sponsored candidates. In August 1969, in what is known as the massacre of judges, some 200 were removed from office according to a judicial re-organization.

When Anwar Saadat came to power, he ushered a sweeping national campaign to discard the policies adopted by his predecessor, Jamal Abdul Nasser. He believed that popular recognition could not be achieved by competing with Nasser’s policies but by doing the exact opposite. He wanted to group around him, in a single stroke, all those opposed to Nasser. With the massacre of judges still casting a shadow over political life in Egypt, Saadat seized the opportunity to distance himself from his predecessor. He returned the dismissed judges to their positions, gradually, and issued a number of laws in this regard. However, law 46 issued in 1972 retained the control of the justice ministry over the judiciary and the justice minister continued to take part in the selection of court presidents as well as holding other authorities.

Crucially, the justice ministers remained in their posts for a long period of time, some for as long as fifteen years, thereby enabling them to plot to control the judiciary and increase their influence. Meanwhile, the government retained its power to establish military courts to try civilians and its political rivals. The emergency laws, which were adopted following the assassination of Saadat in October 1981, remain in place all over Egypt, enabling the government to detain civilians and to try them in military courts, as well as issue emergency legislation without requiring the judiciary to intervene.

However, the government under President Hosni Mubarak was faced with a problem in 2000, when the Constitutional Court suddenly ruled that the judiciary should supervise elections. The majority of judges refused to be pressured and insisted on monitoring the poll in neutral conditions, therefore increasing the confrontation with the government, as the case is today.

*A prominent Egyptian historian and judge

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