Egypt’s Political Judiciary

More than at any time over the last sixteen months, Egypt is in chaos. The most “apolitical” of government institutions, the judiciary, is to blame. Whether this branch of the Egyptian government is equipped to navigate the country’s increasingly treacherous political waters is a question that should, as such, be on everyone’s lips.

Things came to a head through a series of legal developments over the last two weeks. It all began with the trial of Mubarak, his sons, Gamal and Alaa, former Minister of the Interior, Habib al-Adly, and several top police officials. Operating in a civil law system eschewing trial by jury, this exceedingly significant criminal case was heard by a panel of judges.

After a relatively long trial, including significant delays, a decision finally came down on June 2. Although charged with numerous crimes, Mubarak and Adly were found guilty only of failing to prevent, and not of being directly responsible for, the deaths of protesters during the eighteen-day uprising in January-February 2011. Mubarak’s sons and police commanders were acquitted of all charges.

Of course, courts can only convict individuals on the basis of evidence. Given the chaos of the uprising and the legions of police and security officers on the streets at the time, it would be nearly impossible to identify the shooters responsible for killing each and every protestor. At the same time, high-ranking government officials were presumptively responsible for deploying these forces, with accompanying orders on the course of action to be taken.

To be held directly responsible for the resulting deaths, evidence would need to show that these officials were involved in ordering, instigating, or planning these criminal acts. Given the systemic pattern of state violence that took place during the uprising, the case for direct responsibility was far from weak, particularly for the accused police commanders. By failing to address this reality, the court’s decision ensured that accountability for these protesters’ deaths would remain elusive.

The Egyptian street was outraged at this result, widely considered to be a denial of justice. Thousands filled the streets of Cairo, Alexandria, and other cities around the country, calling for a retrial and, in some cases, for Mubarak’s execution.

The Mubarak decision was soon followed by a decree from the Ministry of Justice on June 13 authorizing the military police and intelligence officials to arrest civilians for a range of pre-existing, but vaguely worded offenses, some clearly impinging on freedoms of expression and association. These included “crimes and misdemeanors harmful to the government,” “resisting orders issued by those in power or assaulting them,” “obstructing traffic,” “strikes at institutions that serve the public interest or assaulting the right to work,” and “intimidation and thuggery.” Although the Ministry is part of the executive branch of Egyptian government, it is deeply connected with the judiciary through a variety of administrative duties, making its political actions potentially damaging to the judicial branch.

The decree not only reinstated provisions of Egypt’s thirty-one year old emergency law, which expired only a few weeks ago, but also took the law further, giving military personnel powers previously reserved for the civilian police. Although the law will only remain effect until a new constitution is drafted, court orders dissolving the parliament and allowing Ahmed Shafik, a former member of the Mubarak regime, to run for president make the drafting of a new constitution likely to be a far off event.

On June 14, only days before the second round of presidential voting, Egypt’s Supreme Constitutional Court issued the two decisions, which found both the parliamentary elections and “political isolation” law, which forbids former regime officials from holding political office, to be unconstitutional.

The Court’s holding on the “political isolation” law clearly revolved around the rights of former regime officials, although its other decision also had a similar focus. In dissolving the parliament, the Court found that an illegitimate balloting system had been used during the elections, which disadvantaged former regime officials. Held in several rounds between November 2011 to January 2012, the parliamentary elections involved a hybrid ballot, in which two-thirds of available seats were reserved for political parties while one third was given to independents. In last minute negotiations, the Muslim Brotherhood convinced the Supreme Council of Armed Forces, Egypt’s ruling military junta, to allow political parties to also field candidates for the independent seats. Former regime officials were most severely impacted, as the dissolution of Mubarak’s National Democratic Party had left these individuals with few options but to run as independent candidates.

While the Court’s decisions may have been solidly grounded in constitutional provisions, their political consequences could not have been lost on the panel of judges handling these cases. For decades, Egypt’s courtrooms have had a complicated relationship with the country’s political spheres. While enjoying a notable degree of independence, judges have also been subject to various forms of indirect political pressure through the Ministry of Justice, which is able to open investigations, fire judges, and exert control through the setting of judicial salaries.

As these recent examples show, the judiciary’s involvement in Egyptian politics should be expected to continue and even increase during the transitional period. Judicial decisions are, after all, based not only on law, but also on facts. Political cases typically involve highly charged factual scenarios, prompting many judges and judicial systems to eschew the hearing of overtly political cases. During the transitional period, however, politics is intimately wrapped up in the business of legal decision-making, and cases like the Mubarak trial, are par for the course. By failing to address the political circumstances involved in these cases, judges that take a narrow legal approach undermine the transitional process and, inevitably, damage the rule of law.

The recent actions of the judicial branch and Ministry of Justice have deeply implicated the judiciary in the country’s political trajectory. Some of these developments, such as the Ministerial decree, are undeniably motivated by political factors. Others, such as the Supreme Constitutional Court’s decisions and Mubarak trial, attempt to gloss over the political circumstances involved in these cases. Both outcomes are untenable and will continue to damage the judicial branch and its reputation. The solution to this intractable problem may require a number of changes, including a more defined separation between the Ministry and judiciary, and the establishment of special courts.

This latter move may bring particularly significant benefits. Specialized courts would address the transitional period’s most prominent cases, taking an approach to judicial decision-making that considers both the legal and political circumstances. Used by previous regimes to circumvent the judiciary, special courts have taken on a variety of forms and enjoy a dubious history in the Egyptian legal system. At the moment, however, these courts may be the judiciary’s saving grace. Sequestering Egypt’s most politically significant transitional cases in one specialized judicial body would shield the judicial branch from political gamesmanship and allow for these cases to be heard by judges openly applying both legal and political perspectives to resolve these matters.

In light of recent developments, addressing the judiciary’s involvement in Egyptian politics must become a priority. To do otherwise ensures the destabilizing effects of its actions, with devastating consequences for the revolution, the government, and the future of Egypt.

Egypt, judiciary, elections, Mubarak, revolution, regime, Muslim Brotherhood, court

The views expressed by the author do not necessarily reflect Al-Akhbar's editorial policy.

Maryam Jamshidi is the editor in chief of Muftah.org (http://muftah.org), a digital magazine providing analysis on the Middle East and North Africa region. Maryam is a also a lawyer and recently returned from a human rights fact-finding mission to Egypt, sponsored by the US National Lawyers Guild.