Detailed critique of new judicial legislation

The Arab Center for the Independence of the Judiciary and the Legal Professional (lovingly known by its user-friendly acronym ACIJLP) has sent out its critique of Egypt's new judicial authority law approved by parliament on Monday, saying that while an improvement in some respects it is still lacking in 12 ways. These criticisms echo what the Judge's Club has been saying, i.e. that they are not satisfied and will continue their struggle for more independence. The question is of course in what way? There were talks of strikes previously, but it's hard to imagine the judges going out into the streets again.

In other judicial news, a new president of the Cassation Court has been appointed to replace the pro-government Fathi Khalifa. His name is Mokbel Shaker, but I don't know anything about him. (Baheyya?)

Update: A reader wrote in with some information on Shaker:

If you ask reformist judges and their supporters, they would certainly consider Muqbil Shakir a pro-regime figure. He's not the most vicious, but for that reason they might see him as a bit more formidable. They would certainly view him as emblematic of the regime's capture of the judiciary (and actually not just emblematic, but a critical figure on a very practical level as well). Of course, if you ask the pro-regime party in the judiciary--which used to dominate the Judges Club but got tossed out a few years ago--the reform party in the judiciary is not seeking reform at all but only al-Gazira TV cameras and Al-Misri al-Yom headlines.

Who is right? Well, I think that both sides have some of truth on their side. Base motives are certainly involved. But I think this is not just about egos. The core issue is whether the Egyptian regime is an enemy of judicial independence or a supporter of it. While I incline more toward the analysis of the reformers on this question, I have to admit that it is a more complicated issue than may first appear; it depends a lot on your time horizon and your vantage point for comparison. I should add that there are some tactical differences as well--whether it is best to pressure quietly or confront publicly.

Muqbil Shakir has been a key figure in this struggle--caught up in early efforts to press the regime hard back under Nasser and now a key figure in the more conciliatory approach. He was a young member of the Judges Club back in 1969 and was dismissed along with the other rebels at that time (in the infamous "massacre of the judiciary.") Like most of the dismissed judges, Shakir was rehired in the Sadat years. I don't know much about his career in the 1970s and 1980s, but he continued to be active in the Judges Club and was elected president of that body, I think in 1992. He served for much of the rest of the decade in that position, I think. He came to lead the faction in the Judges Club that was far more reluctant to confront the regime. Their basic attitude seemed to be that an overly confrontational policy would politicize the judiciary and that most of what they wanted could be achieved through quiet lobbying. And the Judges Club did get much better conditions for judges under his tenure. They do see the warts in the regime, but their point of comparison is past regimes and others in the region. And they point not only to better salaries but also to real improvements in judicial autonomy, mainly achieved in the 1980s.

The reformers see this approach as far too cozy. For them, the institutional concessions of the 1980s are hardly enough and the material concessions of the 1990s came at a price--the judges were bought off. And the most critical would see Shakir as a man who helped negotiate the terms of this deal.

(Note: the above was lengthened at the readers' request.)

The ACIJLP release follows below. Judicial geeks only.

ACIJLP's Comment on Egypt's Draft Judiciary Authority Law

ACIJLP has been following the stages of issuing Egypt's Judiciary Authority Law amendments. This law is especially important because it organizes the work of judges who are in charge of taking the final decision concerning the lives, freedoms, rights, duties and property of citizens. As a result, there is a need for the Judiciary Authority to have complete power over all issue of a judiciary nature. The Judiciary Authority is also solely responsible for settling all matters related to its members, following the remarks of legal jurisprudents and judges. Consequently, the Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) expresses its comments on the Draft Judiciary Authority Law presented to Egypt's parliament at this time.

ACIJLP believes that, although the law includes some positive points demanded by Egypt's judges and civil society institutions, there are many comments that should obtain complete consideration in order for the law to be in line with international criteria relevant to the independence of the Judiciary Authority, particularly the UN basic principles concerning the independence of the Judiciary Authority approved through the UN General Assembly decisions number 40/23 on 29 November 1985 an number 40/146 on 13 December 1985.

The draft law did not address at all the text that includes objective criteria for selection and appointment in the Judiciary despite the issues raised about the failure of authorities in charge of appointment to adhere to the criteria of fairness and transparency to the point of litigation before the State Council demanding the cancellation of many appointments and the subsequent exclusion of many efficient judges and depriving Egyptian women from a constitutional right that guarantees her equality in occupying public positions. The Judiciary Authority law should include text stating that those selected to occupy judiciary positions should enjoy honesty, integrity and efficiency, in addition to having obtained suitable legal training or qualifications. There should be no discrimination between candidates to judiciary positions on the basis of gender, color, religion, political or other opinions, national or social origin, possessions, birth or position.
The draft law did not mention the right of judges to freely establish or form associations or other organizations that can represent their interests, organize professional training and defend their judiciary independence, as well as their freedom to join such associations or organizations and the independence of the associations or organizations of any other than the Judiciary Authority. This is a widely acknowledged and enforced right in democratic systems. It is also a right prescribed by Article 9 of the UN basic principles concerning the independence of the Judiciary Authority.
The draft law did not address some issues related to sound justice procedures and practices, an interest worthy of consideration, such as the enforcement of court rulings. Failure to enforce the rulings constitutes a violation to the independence of the Judiciary, breaches justice and renders court rulings worthless. The draft law also failed to find a legislative solution to such an issue, such as establishing a judiciary police subject to the Judiciary Authority to guarantee the enforcement and respect of court rulings.
The draft law did not provide clear articles or text to address the position of public prosecution and its separation from the Executive Authority to be under the Judiciary Authority. The draft law did not point out any objective criteria in the selection of the prosecutor general. Public prosecution continues to combine the authorities of issuing charges and investigation when public prosecution should, as is the case in democratic systems and to guarantee the independence of the Judiciary Authority, be in charge of accusation as long as it is affiliated to the Executive Authority in which case it should leave investigation to the Judiciary Authority. It should only be authorized to perform both issuing charges and investigation in case it is affiliated to the Judiciary Authority represented in Supreme Judiciary Councils.
The draft law lacked any objective principles that govern the distribution of work in courts, such as putting each court's general assembly in charge of this issue and preventing general assemblies from delegating decisions related to the assemblies to heads of courts. The draft law allows head of courts to assign specific judges to cases, which breaches the right of citizens to resort to their natural judges and casts doubt on the presence of unjustified interference with judiciary procedures. Article 14 of the UN basic principles concerning the independence of the Judiciary states that assigning judges to cases within the framework of the court to which they belong is an internal issue, the concern of judiciary administration.
Although the draft law conditioned assigning the minister's assistant, his deputies and heads of primary courts to perform Judiciary inspection issues on the approval of the Supreme Judiciary Council, the draft law gave the Justice Minister the sole authority to interfere with issues that fall under the pure jurisdiction of the Judiciary Authority, such as the fact that judiciary inspection continues to be under the Justice Minister although judiciary inspection in Egypt's other judiciary bodies does not fall under the jurisdiction of the Justice Ministry.
The draft law kept the system whereby judges are seconded to perform non-judiciary jobs –despite the large number of outstanding lawsuits and cases and the lack of qualified judges to try the existing cases. The draft law raised the period of seconding judges to non-judiciary jobs from three years in accordance with Article 64 of the current law to six years, although this system of seconding judges to entities affiliated to the Executive Authority breaches the independence of the Judiciary and contradicts with the judiciary principles that prohibit a person from acting as both adversary and judge. Article 66 of the draft law did not state a maximum period for seconding judges to jobs as first assistant to the minister, assistants to the minister for judiciary inspection and legislation, as well as to the minister's technical office and the judiciary inspection and legislation departments.
Despite the increase in the period of seconding judges, the draft law lacked any predetermined objective principles that govern the issue, which may be used in actual cases as a means of threat or reward thus compromising the independence of the Judiciary.
The draft law did not observe the rights of the Judiciary in matters of discipline, litigation over two degrees and the ability to challenge disciplinary decisions issued against judges before a higher court. Article 83m of the draft law only mentions the reasons allowing challenges before the Court of Cassation: if the challenged ruling contradicted the law, involved a faulty implementation or interpretation or if the ruling or procedures involved a fundamental fault that affected the ruling. Thus, the second degree court for judges is a legal court that does not address the litigated issue itself. Thus, litigation over two degree as stated in Article 83 of the draft law is void of content as the second degree court may not address the issue or consider it in a fair and public manner. Litigation in cases of disciplining judges remains a one degree process from the practical perspective. The text newly introduced to the draft law does not achieve a minimum guarantee for a fair trial.
The draft law violates the right of judges to recruit the help of a lawyer, a constitutional right for all citizens, also prescribed in international instruments where there is a consensus over the need for suitable procedures to guide the speedy and urgent consideration of charges or complaints against a judge in his professional capacity. articles 85 and 106 of the draft law prohibit judges, once they challenge a disciplining decision or once a judge stands before a disciplinary court to recruit the help of a lawyer (…..to present a written defense or through a deputy who is a current or former member of the judiciary that does not hold a job or profession).
The draft law eliminates the condition for judges to be nominated for the general assemblies of the Court of Cassation and the Cairo Court of Appeals to form the Supreme Judiciary Council. The draft law continues to consider seniority the basis for forming the Council, although this criteria is not taken into consideration when appointing the prosecutor general, heads of primary courts and the head of the Court of Cassation.
ACIJLP recommends presenting the draft law to Egypt's judges to be guided by their opinion concerning the draft law regulating their profession, the provisions of which address them as they are the most capable –through practice and real life experience- to understand the minute details that support or disturb their independence.

"When preparing the framework of their legislation and national practices, governments should observe and respect the basic principles for the independence of the Judiciary Authority. Governments should present such principles to judges, lawyers, members of the Legislative and Executive authorities and the public in general," according to the UN basic principles concerning the independence of the Judiciary Authority.