Many demands for institutional reform lose their meaning if they are triggered by partisanship, are delayed despite an urgent public need for them or are revived only when a specific party needs them. Sometimes they are detached from their contexts that give them meaning and are limited to one choice, whereby rejecting them appears as rejection of reform in general and acceptance of the status quo. This is what happened in the ongoing debate about reforming Egypt's judiciary.
It is impossible to defend the judiciary and ignore inherited structural problems that plague it and subsequent tangible outcomes that block justice even in the narrowest form of justice. It is difficult in the context of the laws ruling Egypt's judiciary and its modern history to view it as an entity independent of the network of interests surrounding state agencies in general, especially since the judiciary intersects with the security apparatus (a large percentage of sitting judges – sometimes estimated at 25 per cent – are former police officers) and the military institution, as well as some bureaucratic sectors that represent the core of the state defending its own interests, also inherited before the revolution.
The trials of those who killed protesters revealed the incompetence of the judicial system and their need to make key changes to enable it to perform better. A clear indicator was the successive acquittals of key figures and officers in Mubarak’s regime for murder and financial corruption.
A closer inspection of some of these cases reveals biases and selective procedures in litigation that tests the legitimacy of the judiciary.
One case in point is the cabinet sit-in, which is split into two categories: first, the burning of the Scientific Academy, which was quickly investigated and the suspects put on trial (the second round is on Tuesday). Second, the killing of demonstrators, where very little progress has been made even with the determined efforts of martyrs’ families and investigators to gather and submit evidence. Their calls fell on deaf ears and the only response they saw were doors slammed in their face.
There are many stories about how investigators defended state agencies (army and police specifically) that are accused of killing and destroying evidence and how the lawyer representing martyrs’ families was prevented from viewing the investigations. Thus, the case has not made any progress until today – an entire 18 months have passed since the murders and all judges have received the fact-finding commission's report, which is believed to have submitted new evidence to support the charges.
These problems prompted several political players and revolutionary forces over the past two years to demand substantial amendments to laws regulating the work of the judiciary. At the time, this was resisted by the military rulers (as part of defending the network of interests and to secure their own interests) and the Muslim Brotherhood (whose legislative agenda while parliament was in session lacked any attempt to reform the judiciary).
In fact, parliament contributed to legitimising military tribunals for civilians, as did the Constituent Assembly that wrote the constitution – a document that voids any talk of justice.
This disregard continued for many months as political alliances shifted. Then, some of those who had previously demanded reforming the judiciary became defenders of maintaining the status quo, while those who dragged their feet on reform now pursued it in earnest by passing the law on judicial powers.
In this context, the Shura Council (upper house of parliament) is debating the draft law submitted by majority (Islamist) MPs. Four months after the fact-finding commission submitted its report to President Morsi that included recommendations to reform the judiciary, a member of the commission says the president refused to publish these findings for a serious public debate about needed reforms and create public support and agreement on the main points.
In order to be fruitful, the draft law being discussed should be part of the broader picture of transitional justice since it is impossible to separate the need for judicial reform from the need for reforming state institutions. There is a general need to address institutional shortcomings that spread injustice and corruption in at least four domains: human rights abuses (extrajudicial field executions, torture, restricting movement); political corruption (election fraud to void constitutional institutions of their political content); economic corruption (in privatisation deals, assigning land); neglect by state institutions causing the death of Egyptians (security failures resulting in terrorist attacks, carcinogenic pesticides, the state’s inability to handle successive sinking vessels, accidents and fires that harmed countless lives and funds). In all these issues, justice was lost because the judiciary was unable to perform its expected role.
Judicial reform cannot have public support or yield the desired outcome of justice (a pillar of legitimacy for any political regime that seeks stability) except as a part of this context. Only focusing on judicial reform in this fragmented manner hinders reform more than enabling it because if efforts to embed transitional justice are not generalised but selective or retaliatory, they lose their purpose. Instead, they would be a means to remanufacture tyranny and injustice instead of eliminating them.