Egypt's judicial authority bill: A 'purge' or 'massacre' of judiciary?

Osman El Sharnoubi, Tuesday 7 May 2013

Opponents of judicial authority bill say law aims to 'Brotherhoodise' judiciary, while bill's Islamist proponents say legislation is needed to 'purge' Egypt of Mubarak-era judges

Egypt's President Mohamed Morsi meeting with Egypt's senior judges (Photo: President Mohamed Morsi's official Facebook page.)

Representatives of the Egyptian presidency and the heads of Egypt's top law courts will meet on Wednesday in preparation for a scheduled 'justice conference' to be held within the context of the ongoing crisis between Egypt's judiciary and the Muslim Brotherhood – the group from which President Mohamed Morsi hails – regarding a proposed judicial authority law.

The scheduled justice conference will be the second of its kind in Egypt's recent history, with the first having been held in 1986. The upcoming conference was called for by President Morsi after a number of Egyptian judges openly defied a judicial authority draft law proposed by the moderate-Islamist Wasat Party in Egypt's Shura Council (the upper house of parliament, currently endowed with legislative powers).

The law, if passed, many judges argue, would result in the retirement of a large number of judicial officials, paving the way for authorities to appoint judges loyal to the Brotherhood.

The bill reduces the retirement age for judges from 70 to 60, which would effectively pension off about a quarter of Egypt's 13,000 serving judges. While opponents describe the law as a 'massacre' of the judiciary to the benefit of the ruling Muslim Brotherhood, proponents argue it is a necessary step aimed at 'purging Egypt's judiciary' of Mubarak-era officials.

MPs who proposed the law argue that the retirement age was gradually increased from 60 to 70 during the rule of ousted president Hosni Mubarak in order to prolong the terms of those judges loyal to the former regime.

This gradual increase of the retirement age during the Mubarak era was severely criticised by many independent-minded judges at the time, some of whom joined the fight for judicial independence. These included Ahmed Mekki, the Morsi-appointed justice minister who recently resigned – ironically – against the backdrop of the current crisis.

'Brotherhoodisation' of Egypt's judiciary?

Opponents of the bill, meanwhile, see the move as one engineered by the Muslim Brotherhood-dominated Shura Council, which aims to infuse Brotherhood members and sympathisers into Egypt's judicial system.

Fears that the Brotherhood was seeking to control various branches of the state were heightened by the method by which the current prosecutor-general, Talaat Abdullah, was appointed – namely, via a surprise constitutional declaration issued by Morsi last November that was widely condemned as 'dictatorial' by critics.

Now, Morsi's detractors contend that the Brotherhood is targeting the judiciary as it did the office of top prosecutor, which had been headed by judge Abdel-Meguid Mahmoud, long regarded as a Mubarak loyalist.

"What we're witnessing is a move to Brotherhoodise the judiciary," Judge Mohamed Hamed El-Gamal, former head of Egypt's State Council, told Ahram Online. "Using this law, the Brotherhood will appoint its members to judicial posts, or we'll see Brotherhood sympathisers already in the judiciary promoted to high positions."

El-Gamal voiced concern about what he describes as Brotherhood 'sleeper cells' – namely, judges aligned with the group, such as former Court of Cassation deputy Mahmoud El-Khodeiry, who ran on the Brotherhood’s Freedom and Justice Party list in 2011 parliamentary polls.

Nasser Amin, director of the Cairo-based Arab Centre for the Independence of the Judiciary and the Legal Profession, told Ahram Online that he entertains similar concerns regarding the proposed judicial authority law.

"This law would allow authorities to appoint their loyalists," said Amin, nothing that the law stipulates that 25 percent of newly appointed judges must be professional lawyers. This, Amin believes, will help lawyers associated with the Brotherhood and its allies join the ranks of the judiciary en mass.

Amin says the law would effectively retire all senior judges presiding over Egypt's most important courts. The Supreme Judicial Council (SJC), which is in charge of new appointments, would be completely overturned as a result, he asserted.

El-Gamal, believing it is the intent of the presidency and the Brotherhood to adopt such measures, says it is against established judicial tradition worldwide to have judges with political affiliations.

"The judiciary is like the police or the army; you can't have judges obedient to the Brotherhood's leadership, as this would inevitably lead to conflicts of interest," El-Gamal said.

Amin worries that such an arrangement would enable the Brotherhood to clamp down on its political opponents.

Nabil Abdel-Fattah, an expert on Islamist movements and director of the Al-Ahram Centre for Historic and Social Studies, draws a dark picture of the impact of such a law on politics.

Abdel-Fattah likewise believes that if the Brotherhood is allowed to appoint its supporters to the judiciary as a result of the bill, Egyptians would be faced with judges who answer to the Brotherhood's leadership.

"The nature of the Egyptian judicial system would be transformed," said Abdel-Fattah, arguing that the modern judicial system established in Egypt in the twentieth century would be undermined by the tendency of conservative judges to issue outdated rulings.

"The unity of the judicial system is at risk; there may even be an inclination to return to Sharia courts," he said, referring to Ottoman-era religious courts that some Salafist sheikhs want to see re-established. Muslim Brotherhood figures, however, have not voiced any intention to establish such courts.

The draft law, asserts Abdel-Fattah, would also lead to rulings against media outlets not aligned with Brotherhood policies. Islamists, including President Morsi himself, are carrying out a campaign against media outlets that oppose them, which they accuse of corruption and loyalty to the ousted Mubarak regime.

Abdel-Fattah says that judges loyal to the Brotherhood would not hesitate to issue rulings that would negatively impact free speech or order the arrest of opposition activists – a view shared by Amin.

Fears unfounded, say Islamists

Islamist politicians, for their part, say such fears are baseless. Ramadan Battikh, constitutional law professor and Shura Council MP for the Wasat Party – which proposed the draft law – told Ahram Online that such criticisms were unjustified.

According to Battikh, it is judges themselves who control legislation. The SJC is the authority on new judicial appointments, he says, and so therefore the executive has nothing to do with it. "The argument by the bill's opponents doesn't hold any water; reducing the retirement age had been one of the judges' demands to begin with," he said.

However, speaking to government daily Al-Ahram, Assistant Justice Minister Hisham Raouf objected to the proposed judicial authority law, saying it represented an attempt to infringe on Egypt's judiciary.

"While we objected to previous increases in judges' retirement age under Mubarak, our objections had only been based on our resistance to any form of political exploitation," he said.

While he didn't speak of an attempt by the Brotherhood to "take over" the judiciary, Raouf told Al-Ahram that the judicial authority bill would effectively "demolish" Egypt's judicial institution.

Raouf, like others, voices concerns that many of the more experienced judges will be lost and that the move would serve to hinder judicial processing due to the large number of cases that would have to be transferred to new judges.

Raouf said the main reason for Mekki's resignation was the fact that the bill wasn't referred to any judicial body for review. He pointed out that there had been a judicial authority bill – which judges helped draft – that had been presented to the People's Assembly (the lower house of Egypt's parliament, dissolved last year by military order), but which had been shelved.

"Where were those who are calling for a new judicial authority law and who are attacking the judiciary when the other bill was shelved?" he asked, saying that, contrary to what the Islamists are saying, the bill in its current form does not aim merely at judicial reform.

The Wasat Party, meanwhile, said it won't withdraw its draft law following President Morsi's meeting with top judges, at which the president promised to personally adopt a judicial authority law drafted by judges to be presented to the Shura Council.

However, Battikh told Ahram Online that, despite his party's refusal to withdraw the bill, the judges' draft would be given priority when it is eventually finalised.

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