The following is an excerpt from a policy paper written by David Risley, published online by The Middle East Institute. Topics include:
- Pre-2011 revolution academic and NGO praise for the Egyptian judiciary for its independence and judicial activism in defense of human and political rights;
- What changed after the 2011 revolution and why, and what remains true;
- Influential reformers within the judiciary;
- Why to invest in the judiciary as the best hope for Egypt to transition to a stable, working democracy in which the constitutional rights of its citizens are protected.
Read the full article here. Excerpt below.
Full article in PDF format here.
Egypt's Judiciary: Obstructing or Assisting Reform?
By David Risley (January 13, 2015)
Prior to the 2011 revolution, Egypt’s surprisingly independent and assertive judiciary had gained recognition among scholars, political opposition figures, and many in the NGO community for strength and activism in defense of democratic values and political rights. As Nathan Brown wrote in 2008:
Egyptian administrative courts and the Supreme Constitutional Court have become sites for individual and organized efforts to breathe life into Egypt’s formal democratic practices and institutions. Political parties seeking to gain recognition, individuals seeking political rights, NGOs challenging restrictions, and activists seeking to eliminate unfair electoral procedures all have found the courts far friendlier places than other institutions of the Egyptian state…It is clear that the judiciary is generally a respected institution with a strong inclination toward supporting the rule of law.
What changed after the 2011 revolution, particularly after the 2013 removal of President Mohamed Morsi from office, was not so much the judiciary itself as the response of many judges and the Public Prosecution Office to institutional attacks and national security threats, both real and perceived. It has become clear that for economic, political, security, and cultural reasons, most in Egypt’s establishment, including judges, value order and stability above almost all else. More broadly, it has also become clear that many and perhaps most Egyptians, including a surprising number of the country’s liberals, are willing to tolerate harsh security measures and even an alarming degree of human rights violations if deemed necessary for national security and to restore order on the streets.
Of equal importance are the huge practical challenges thrust upon the civilian court system of filling the void created by the sudden post-revolution end of over 70 years of almost continuous emergency rule. The challenges included the near impossibility of judiciously processing in a timely manner the sudden influx into the conventional judicial system of a high volume of politically charged cases involving thousands of defendants often arrested in large groups. The civilian judiciary and even the legal system itself were inadequately prepared with either the capacities or in many instances the procedures necessary to adequately deal with that challenge. Something had to give, and all too often what gave for reasons of expediency—many in the judiciary would say exigency—was traditional Egyptian standards of individualized justice and due process of law.
Not all in the judiciary, especially in its most influential senior ranks, have been willing to tolerate on even an interim basis the expediency of evidentiary and procedural shortcuts at the cost of their judicial integrity. Injudicious rulings of lower courts are fairly consistently reversed on appeal to the Court of Cassation, the supreme court of Egypt’s common court system. These have included reversals of politically incendiary mass convictions, mass death sentences, and the court’s scathing repudiation of the hugely damaging original trial court conviction of three Al-Jazeera English journalists. Many senior judges, particularly after several recent judicial appointments, are supporters of major institutional reforms aimed at elevating the judiciary’s professional performance.
For example, the new Prosecutor General, Nabil Sadek, has expressed strong interest in sending public prosecutors on study trips to the United States to examine the U.S. justice system and prosecution practices with an eye toward incorporating compatible best practices in the Public Prosecution Office. Also, the new head of Egypt’s National Center for Judicial Studies, Judge Omar Hafeez, is a strong supporter of dramatically increasing both the quality and quantity of judicial education, which has for decades been in steep decline.
The professionalism of Egypt’s best judges deserves recognition and the progressive reform efforts of some of its bolder leaders need and deserve active support.
In the long run, the Egyptian judiciary will necessarily play a pivotal role in determining whether Egypt breaks free from its long history, and deep-rooted culture, of autocracy—popularly elected or otherwise—and successfully evolves into a functional and stable democracy. The judiciary has been one of the nation’s most autonomous and powerful poles of power, and is the primary mediating institution between the Egyptian people and their government. It wields the political power to legitimize or delegitimize government actions, and even the government itself. In the struggle for primacy between competing social currents and political interests, the judiciary will not only referee the contest, its judges will ultimately determine the legal rules of engagement. Consequently, the judiciary is the key institution with both the role and power to moderate the authoritarian impulses of the other branches of government and enforce democratic rules of governance.
For friends of Egypt, who yearn to see that country governed by the rule of law and to eventually evolve into a stable democracy, it would be self-defeating to abandon the best elements of the judiciary at this critical juncture. Rather than react to the worst elements of the judiciary by backing away, now is the time to encourage and empower the best elements in their efforts to elevate the judiciary’s capacities and professionalism and to rebuild its reputation for independence.
Challenges of Transition
Up until 2011, with only a few brief interludes, Egypt had been governed since 1939 under either martial law or a state of emergency. Each renewal of a state of emergency authorized special emergency courts, using expedited procedures and relaxed evidentiary and procedural standards, to deal with broadly-defined national security cases, constituting a highly trafficked special court system occupying a middle ground between the common court system and military courts. After the 2011 revolution, the then-governing military rulers allowed the declaration of a state of emergency to expire. The special emergency courts were disbanded, the Emergency Law itself was amended to add duration and scope limits, and extraordinary courts became constitutionally prohibited. While the end of emergency rule was widely hailed, the disappearance of a middle ground option between the common court system and military courts in national security matters had considerable practical consequences.
Since constitutional law limits the jurisdiction of military courts to military matters, most cases that would have been handled in the old emergency court system went to the common court system, which was already struggling under a crushing case backlog. The backlog resulted in even longer litigation delays, typically measured in years, and correspondingly long periods in criminal cases of pretrial detention and incarceration pending appeal. In the wake of the civil unrest after the 2011 revolution, and particularly after the 2013 removal of President Mohamed Morsi from office, the sudden influx of a huge number of cases and defendants into the already struggling common court system, plus the need for speed in responding to a rapidly deteriorating security situation, created institutional stresses and the search for judicial shortcuts. The Public Prosecution Office resorted to such expediencies as mass prosecutions of protesters and the abandonment by many trial court judges of Egypt’s usual standards of the requirement of individualized evidence of guilt and due process of law.
On the other hand, when procedural or evidentiary corners have been cut at the trial level, the Court of Cassation has usually expedited and reversed injudicious lower court convictions and sentences, sending everything back to square one for retrial, creating the additional delays of a litigation loop. The trial, retrial, and now third trial of former President Hosni Mubarak is a prime example. Given the likelihood of reversal of injudicious trial court rulings on appeal, the judges who enter them may not expect them to withstand appellate scrutiny. This suggests that the real objective in many cases, especially mass prosecutions, is to detain the defendants for an extended period of time, even if they are ultimately released after the long cycle of litigation is finally exhausted. The bottom line is a legal and judicial mess.
The magnitude of the difficulties faced by the common court system in dealing with such a large volume of politically charged and time-sensitive cases naturally results in flawed trials and lengthy delays. It is unsurprising that the government has turned to the alternative of the military court system, especially in genuine national security cases in which the relative secrecy of military court proceedings enables the protection from disclosure of evidence obtained through sensitive means or sources.
Some Egyptian judges view with dismay the government’s resort to the military court system to try civilians in cases that would ordinarily be tried in civilian courts, while others welcome it with relief as a necessary evil. Few view it as enduring beyond current exigencies.
The constitutional prohibition against trying civilians in military courts for any crimes other than those involving the military was dealt with by an October 2014 law enacted by presidential decree declaring that for a period of two years all “public and vital facilities”—including streets and university campuses—are military facilities, effectively a declaration of a form of jurisdictional martial law. While almost certainly constitutionally overbroad, the course of litigation involved in challenging the constitutionality of that law would, even under normal circumstances, take many months and even one or more years to be resolved.
Competing Judicial Currents
The Egyptian judiciary has always been complex, with multiple currents and crosscurrents and with some judges being more judicious than others. As such, neither the pre- or post-2011 revolution popular narratives about the judiciary tell the whole story. Just as current post-revolution judicial dramas draw the spotlight of attention to the most injudicious judges and their rulings, so also the pre-revolution judicial dramas drew the spotlight to the most activist judges fighting to curb authoritarian excesses. But the judiciary was not then and is not now monolithic. It is a large body of over 10,000 judges. Its internal professional and political factions, strata, and currents are driven by differing visions of the role and interests of the judiciary and of the necessities and principles of governance.
While united in protecting their institutional interests, the judges have always been divided in their visions of the role of the judiciary in protecting and promoting the “public good.” Some judges have always viewed the proper role of the judiciary as being to act as an enforcement arm of the state—within a kind of ‘division of labor’ model. Others view the judiciary not as an enforcement arm of the state, but as an independent institution with a duty to enforce the rule of law without regard for the government’s political agenda, and when necessary to act as a legal check on the powers of the political branches—a ‘separation of powers’ model. In Egypt today, the two viewpoints can be seen in the higher and lower courts, with judges in the higher courts more often invoking the latter and lower courts referencing the former.
Recent attention for the most part focused on the most injudicious and sensational trial court rulings. While generally factual as far as they go, these narratives ignore or underreport the more judicious rulings, including what has become the routine reversal on appeal of convictions in cases across the political spectrum.
Even at the trial court level, just as there have been highly reported mass convictions, there have also been several underreported mass acquittals.
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 See Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007); Tamir Moustafa, "Law and Resistance in Authoritarian States: The Judicialization of Politics in Egypt," in Tom Ginsburg and Tamir Moustafa, eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008)Nathalie Bernard-Maugiron, ed., Judges and Political Reform in Egypt (Cairo: The American University in Cairo Press, 2008); Bruce K. Rutherford, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton: Princeton University Press, 2008).
 Nathan J. Brown, “Reining in the Executive,” in Judges and Political Reform in Egypt, ed. Nathalie Bernard-Maugiron (Cairo: The American University in Cairo Press, 2008): 135-36, 148. In the introduction to this volume, editor Nathalie Bernard-Maugiron wrote, “If justice in the Arab world is often marked by the judiciary’s lack of autonomy in relation to the executive branch, one of the characteristic features of the Egyptian judiciary is its strength and activism in defense of democratic values.”
 There were and are better alternatives to dealing with the very real challenges facing the judiciary than compromising standards of individualized justice and due process, which should be maintained no matter what as judicial bedrock. To a large extent, convictions entered despite insufficient individualized evidence of guilt reflect a misplaced sense of patriotic duty to do whatever is necessary to restore order to the streets and protect the nation, or an unwillingness to appear soft or sympathetic toward opposition groups by acquitting defendants. To the extent the usual standards of justice and due process have been sacrificed for the sake of expediency in moving cases off judges’ heavy caseloads, the better and far more judicious solutions needed to meet the challenge are in prioritizing cases and changing outdated and inefficient case management and courtroom procedures. For example, docket control: felony trials are routinely broken up into segments spread out over months, rather than being conducted more efficiently in one continuous proceeding in which the prosecutors, defense attorneys, and judges are required to be fully prepared on day one to try the case from beginning to end, whether the trial takes only one day or a period of weeks to complete. Many unnecessary trials could be avoided if judges were authorized to accept guilty pleas without requiring a trial to determine whether a defendant’s credible admission of guilt is factually justified, and if judges rewarded candid and contrite guilty pleas with lower sentences in recognition of the mitigating factor of the defendant’s repentant attitude. Some needed changes would require legislative authorization, such as procedures to protect classified evidence from public disclosure (and to classify evidence). Modernization of case management systems from hard copy files to computerized systems require additional funding to develop and implement.
 http://egyptjustice.com/analysis/2015/6/10/al-jazeera-english-journalists-marriott-cell-case (Al-Jazeera English case reversal); http://egyptjustice.com/analysis/2015/11/2/another-example-of-reversal-by-egypts-court-of-cassation-of-mass-conviction-of-morsi-supporters (reversal of conviction of 77 pro-Morsi demonstrators charged after deadly violence). In the Al-Jazeera English case, the defendants were again convicted on retrial, but received presidential pardons before a second appeal.
 Article 97 of the 2014 constitution states in part (as translated), “Individuals may only be tried before their natural judge. Extraordinary courts are forbidden.”
 A judicial source reports that a study of the Court of Cassation’s caseload completed in December 2011 showed that the average time to resolve criminal cases on appeal was four years, although cases in which defendants are incarcerated are given priority and move more quickly. The average time for resolving civil cases was 10 years, although commercial and economic cases were similarly given priority and moved more quickly.
 The most commonly advanced explanation for mass prosecutions without individualized evidence of guilt and the filing of charges in so many cases in which the evidence is factually insufficient to sustain a conviction at trial or legally insufficient on appeal is that public prosecutors are afraid of making a mistake by failing to charge a guilty person, so they shift the responsibility to sort out the guilty from the innocent to the trial court judges, who in turn sometimes enter mass convictions and thereby shift the responsibility to determine whether the evidence was legally sufficient to convict individual defendants to the Court of Cassation. That practice of passing responsibility for judicial screening of defendants and charges up the judicial ladder has long been cited as a major contributing factor to the judiciary’s excessive caseload, and places a hugely unnecessary burden on the Court of Cassation. But, not all trial judges engage in that practice and have entered mass acquittals. http://egyptjustice.com/analysis/2015/6/10/mass-acquittalscollected-cases
 Article 204 of the 2014 constitution states, in part: “The Military Judiciary is an independent judiciary that adjudicates exclusively in all crimes related to the armed forces, its officers, personnel, and their equals, and in the crimes committed by general intelligence personnel during and because of the service. Civilians cannot stand trial before military courts except for crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; its equipment, vehicles, weapons, ammunition, documents, military secrets, public funds or military factories; crimes related to conscription; or crimes that represent a direct assault against its officers or personnel because of the performance of their duties. The law defines such crimes and determines the other competencies of the Military Judiciary.”
 Presidential Decree, Law 136 of 2014 for the Securing and Protection of Public and Vital Facilities.
 Sometimes, even factual accurate but incomplete information can be misleading. A case in point is the clear distinction that should be but is often not drawn in popular news media accounts and even some human rights reports between real (enforceable) sentences, including death and and other maximum sentences, entered in absentia in cases in which defendants fail to appear, since in Egypt in absentia sentences amount to little more than legal placeholders, subject to being automatically vacated and real trials granted as soon as the previously absent defendants make a personal appearance in court.
 See collected mass acquittal cases at http://egyptjustice.com/analysis?tag=Mass+Acquittals