The Arabist

The Arabist

By Issandr El Amrani and friends.

Posts tagged judiciary
Dissidence and Deference Among Egyptian Judges

For Egypt judiciary nerds (you know who you are), this article by Mona El Ghobashy for Middle East Report is just such a great read that weaves so many threads together, I have to link to it again. Money quote:

It is tempting to dismiss pro-government judges as lackeys of military rulers, automatons who move only at the behest of the de facto center of power. The reality is far more troubling. Many judges are active, self-willed architects of an expanded regime of legal exception and legal repression.

. . .

There have always been judges who see their role as applying, not checking, punitive laws. The zeal with which these judges and prosecutors are expanding the infrastructure of legal repression and resuscitating Mubarak’s paradigm of permanent emergency suggests that political dissidence is not their only target. A broader pacification of the population seems to be the goal, to punish the rampant disobedience and disrespect for authority that ruling elites remember as the revolution. Commenting on an avalanche of summary expulsions of students from universities, an administrative court judge said, “The reasons behind the expulsions [nowadays] weren’t there during Mubarak’s time. There wasn’t a revolution during Mubarak’s time.”

Justice in Egypt

The latest mass death sentence handed down in Egypt received a fair amount of press. (Enough to incense Egypt's Foreign Ministry, which has released its usual ridiculous statement sniffily calling for the respect of non-existent "international conventions" not to ever question the ruling of any judge anywhere). 

I wrote about mass sentences and the role of the Egyptian judiciary over a year ago. Since then the sentences have continued apace. The only reason this one has received particular attention, in fact, is  because the convicted included former president Mohamed Morsi. Those sentenced to death also include Freedom and Justice Party spokeswoman Sondos Asem and Professor Emad Shahin who having fled the country is currently teaching at Georgetown. The Atlantic Council's EgyptSource blog has an excellent round up of the cases, charges, and reactions here

As I've written before, I can think of few things more destructive to a social peace than the belief that there is no possible recourse to justice. All judicial systems are imperfect, but citizens must at least harbor the hope, the delusion even, that there are avenues for redress. 

The Egyptian judicial system -- which has long been held in esteem -- has been deeply damaged by its overt political partisanship since 2011; the corruption, lack of independence and nepotism that are seemingly endemic to the institution have been exposed. The Sisi regime has brushed aside any calls for reform and supported judges' own interpretation of "judicial independence" meaning not insulation from political pressures but rather a deal in which judges, in exchange for their loyalty to the state, face no accountability and no criticism. It has just appointed the megalomaniac Ahmed El Zind as its new Minister of Justice. 

But as we've seen, even this latest egregious sentencing is not denting the support of Egypt's Western allies for "engagement." The question is now whether these sentences will be carried out. But while the world was focused on the Morsi conviction, another six young men accused of carrying out terrorism attacks were hastily executed last weekend. Below is a short message --translated by the team at Industry Arabic -- that another man recently condemned to death shared with the "Freedom for The Brave" group, an activist group that highlights unlawful detentions. The death sentence of Amer Musaad was upheld and approved by the Grand Mufti this week.

"I truly don’t want to spoil your wonderful night. I don’t know exactly whether your night is wonderful or not, but for me, anything other than this solitary confinement where I crouch would be nice and wonderful…I won’t go on long. I just wanted to let you know I’m waiting for the sentencing hearing for three of the four cases in which my case file has been sent to the Grand Mufti [Ed.Note: The Mufti approves all death penalties]. I’m waiting for the sentence to be pronounced in only five days, on 18 May 2015. Don’t tell me that there’s nothing you can do for me. You can do a lot. Post about me, tell them I was tortured like nobody else, and that I confessed only to be spared more torture. I didn’t know that death was waiting for me four times over…Tell them that I don’t deserve to be killed!"
Amer is accused of bombing the Dakahlia security directorate, an attack that occurred on 24 December 2013 – two weeks after he had already been arrested.



More on the Rubik's Cube

In response to a remark on Twitter by Amira Howeidy, Nathan Brown is updating his take on the SCC's rulings we recently published. Here is a (lengthy) addendum.

A closer reading of the second (Constituent Assembly) ruling suggests I got one thing absolutely right and one thing absolutely wrong.  But this is a very complicated ruling, because the SCC is sorting through all sorts of issues (standing, jurisdiction, governing constitutional text, etc).  So I would love to hear others weigh in!

What I said before was that the SCC struck down the law by which the Constituent Assembly was elected that this had little effect on the constitution. That is what I got right.

What I now think I got wrong was that I said this tossed the matter back to the administrative courts but did so too late to make any difference.  But a closer reading suggests the ruling does not toss the matter back to the administrative courts; it seems to argue they shouldn’t have been involved in the first place. And if I read the ruling right (and I may not!) the implication is that the first Constituent Assembly should never have been dissolved—which is again, the opposite of how I read the verdict first.

Let’s review the history: in March 2011, the SCAF issued a constitutional declaration which provided for parliamentary elections. The elected members of both chambers of parliament were supposed to elect a Constituent Assembly. This they did.  But the administrative courts dissolved the Assembly because they claimed it was not representative and because parliament had named some of its own members to the body. The administrative courts claimed jurisdiction by saying that the parliament was acting in an administrative capacity when it elected the Constituent Assembly.  To comply with the ruling, the parliament elected a second Constituent Assembly. But they still named a few of their own members to the body. Worried that the administrative courts would dissolve the second Constituent Assembly, the parliament then passed a law justifying what it had done. The purpose of the law was to keep the matter out of the administrative courts because now it would be a legal rather than an administrative matter.  It would perhaps be up to the SCC to rule on the constitutionality of the law.

That draft law got sent to the SCAF which sat on it. Then the parliament was dissolved. After taking office, however, Morsi approved the law.  

Now let’s get back to the case. When the administrative courts heard challenges to the second Constituent Assembly, they sent the matter over to the Constitutional Court. The question before the Court centers on the law passed by the parliament to justify what it had done.  What the Court is trying to decide in this ruling is:

  1. Is this an administrative matter?
  2. Is this a legal matter?
  3. Or does this involve “political acts”? The idea of "political acts" is the SCC's preferred term for what had been called "acts of sovereignty."  These are acts that are not ones subject to judicial oversight. While accepting that there are such acts, the SCC insists that it alone has the authority to decide what is a political action.

The SCC reasons that the constitutional declaration meant to make the entire procedure of electing the Constituent Assembly as something special. It’s not a normal administrative act. Nor should the parliament be passing laws, restricting or defining the process because the body that elected the Constituent Assembly (that body was not the parliament acting normally but a special assembly of all elected members of the two chambers) was not really subject to parliamentary laws.  So the law is unconstitutional.  But that does not question the legitimacy of the Constituent Assembly, it affirms it.  

The SCC does not seem to be saying that the election of the Constituent Assembly is an act of sovereignty specifically, but they seem to be drawing on that mode of thinking.

If this is the case, then it means that no court should be reviewing what the parliamentary deputies did when they elected the second constituent assembly.  That’s remarkable, because rather than throwing the second Constituent Assembly under a cloud, it implies that the first one never should have been dissolved!  This comes pretty close to vindicating the Brotherhood’s original position.

But not on all issues.  The SCC does explicitly define the “revolutionary period” as one that ended with the elections of the upper and lower houses of parliament and the president. That all but says that Morsi had no authority to issue constitutional declarations—ever.  And the implications of that would be potentially far reaching if the SCC at the same time were not making crystal clear at the same time that the 2012 constitution is an accomplished fact.

Solving the Rubik's Cube of Egypt's court verdicts
Image by Glennz (click for link)

Image by Glennz (click for link)

Nathan Brown has read the recent, controversial verdicts of Egypt's Supreme Constitutional Court (official text here) and has kindly sent this initial take — helping us common mortals make sense of the world's most constitutionally complicated political transition. My own basic take is this: legal victory for the Brotherhood and its allies, but much to use for the opposition for its campaign of delegitimization.  

On 2 June, the Supreme Constitutional Court (SCC) issued three rulings—one on the constitutionality of the Maglis al-Shura election law; one on the Constituent Assembly law; and one on a provision of the Emergency Law. It struck down all three, but the implications confused many observers. That is not urprising--the legal questions are so complicated (with constitutions, constitutional declarations flying through the air, cancelling, contradicting, and clarifying each other) that the Court had to spend a lot of time figuring out what the relevant constitutional text was and how to apply its rulings.  The judgment on the Constituent Assembly in particular reads a bit like a Rubik’s Cube. 

What follows are some brief notes based on an initial reading of the verdicts. This is a very quick set of reactions based on a first reading of the decisions.  I hope readers will forgive any resulting errors of emphasis or interpretation.

The overall impact of the rulings is clear:

1. The 2012 constitution is the law of the land. Khalas. It was approved and there's nothing that the SCC can do about it. The SCC had been treating the document as authoritative in past rulings, so this was no surprise.  But the Court made  explicit what was already very clearly implicit in its rulings.

But the tone of these rulings was new.  In the earlier rulings, it simply applied the 2012 text without comment. This time it is not silent. Yes, the constitution is in effect. But the SCC seems—well, unhappy.  Its attitude sometimes comes off as institutional modesty (what are we judges supposed to do in the face of the will of the voters?), sometimes as resignation (the 2012 constitution is there; what can we do about it?), and sometimes as barely muffled outrage (this constitution is like something the cat dragged in: ugly and mangled, but something we have to deal with.)

2. The law by which the Maglis al-Shura law was elected is unconstitutional.  But because the current Maglis was specifically named by the 2012 constitution as having legislative authority in the absence of the Maglis al-Nuwwab (the lower house of parliament), it is protected—or at least gets a stay of execution until the first meeting of the Maglis al-Nuwwab after which its protection expires and the judgment against its constitutional legitimacy can be carried out.  

This ruling has frustrated people as contradictory. Perhaps I've been working on this too long. It makes sense to me.

The implications of this:

  • One of the first things the Maglis al-Nuwwab will have to do is write a new Maglis al-Shura election law.  Egypt's transition goes on and on.  And that will have to be submitted to the SCC which may then find fault with it… and so on.  It’s quite likely Egyptians will be trudging back to the polls until late 2014 before all their constitutional structures are in place.
  • The early speculation that the SCC was explicitly saying that the Maglis al-Shura could no longer legislate is just plain wrong.  
  • In fact, just the opposite: there seems to be a clear if implicit endorsement of the claim that the Maglis al-Shura DOES have the authority to pass laws. (There is a separate argument about whether the Maglis al-Shura can set its own agenda or only discuss laws submitted to it by authorized bodies. The tenor but not the text of the ruling seems to point against restricting the Maglis al-Shura's legislative role).

3. The Constituent Assembly law was unconstitutional. But so what?  The legal effect will be to allow legal challenges to proceed against a body that doesn't exist anymore. 

That much is clear. But  now things get complicated, though with no real effect on the bottom line. The law struck down was written after the Constituent Assembly was elected. So striking down the law would not have dissolved the Assembly even if the Assembly were still there. It would have just tossed the matter back to the administrative court to consider the challenge to the Assembly. The reasoning of the ruling  is that the law unconstitutionally tried to immunize the Constituent Assembly from the Courts.  So again, all this ruling does is allow the administrative courts to consider the cases against the Assembly. Given point number 1 above, I don't think that will lead anywhere.  

But the SCC also took a swipe by seeming to endorse the reasoning by which the administrative court dissolved the first Constituent Assembly and may have dissolved the second had it been able. The legal objection was that the Assembly contained elected parliamentarians. Not only does the SCC accept this, the way the court states the objection suggests that the fact that Assembly no longer contained sitting parliamentarians after the parliament was dissolved (and the Maglis al-Shura members offered their resignation) would have made no difference. In other words, the Assembly would have been a goner had any court been able to rule in time. The SCC endorses the argument (a bit of a stretch, I think) that the constitutional declaration's silence on allowing MPs to be in the CA *required* that the CA exclude them.

4. The final ruling on the emergency law does not matter that much right now. The state of emergency is not in effect.  But this is an area the SCC did not dare to tread in the Mubarak years.  Some justices wanted to, I think, but they thought it would be the end of the SCC if they did so.  Now the emergency law is fair game for the SCC.  Let’s see where this moves—especially since some lingering effects of past states of emergency are still in effect (with some in prison and others being tried for alleged offenses during the emergency)

5. One other interesting sub-theme: the SCC has treated the various constitutional declarations with some discomfort. It has cited them in past decisions but often tried to avoid relying on them.  I read these decisions differently: there is explicit reference to the "revolution" – I could be wrong, but I don't remember the SCC using that term before. The implication is that the irregular constitutional changes from February 2011 forward have revolutionary legitimacy… or at least some of them. There is respectful reference to the March 2011 amendments and the SCAF-issued constitutional declarations. But there is a deliberate if ineffectual cloud placed squarely over Morsi's constitutional declarations—the SCC explicitly withholds judgment on whether those were legitimate or not.

Should the Egyptian army and police get to vote?

That is the question that has riled Egypt over the past week, as the Supreme Constitutional Court (SCC), in its latest bout of judicial jujitsu, has decreed that – in accordance with the new constitution – since the electoral franchise is supposed to be universal, the previous ban on uniformed services from voting should be lifted. This has triggered howls of outrage by Islamists, who see the judiciary giving the police and army the right to vote as tantamount to vote-rigging, and has been welcomed (to various degrees, and not by all means unanimously) by their opponents.

The recommendation came as part of the SCC's review of a new elections law and a law on parliament – a review that itself is mandated by the new constitution. The SCC's ruling appears correct: since the new constitution guarantees equal rights for all citizens, and makes no mention of an exemption from voting for employees for conscripts, officers, and/or policemen, it stands to reason that they should not be denied the right to vote. Of course, there were no provisions preventing the military and police from voting under the previous constitution, so the SCC appears to have, in this case, made a recommendation that went against longstanding practice – or perhaps more simply it had never had the occasion to rule on this issue before, since it did not get to review legislation under the previous constitution.

A first take to this decision is that it shows, yet again, how foolish the Muslim Brotherhood and other Islamists were to rush ahead with a constitution that has already come back to bite them in many respects. And their reaction is proving yet more foolish, notably in the shape of calls for the SCC to be abolished altogether because it is seen (despite having been purged by the new constitution of many of its most anti-Islamist components) that are escalating the crisis between the government and the judiciary (judges are now threatening a national strike in response to a draft judicial reform law).

Secondly, it does raise the question of whether – in free and fair elections – giving policemen and soldiers the right to vote would make any difference. Their numbers, including conscripts, amount to nearly two million, enough to make a difference in the last presidential elections, when it is assumed many would have preferred to vote for candidate Ahmed Shafiq.

But whatever their voting preferences, the question may be more whether these institutions would direct their members to vote a certain way – or even lead to the spreading of the hyper-partisanship that characterizes Egyptian politics into the military, an institution that is most keen on maintaining its internal coherence, chain of command, and remaining "above" politics. Thus the striking quote from a retired general in this Washington Post article:

“This is a threat to national security. Divisions in the streets will be reflected in the military — the sectarianism, the partisanship,” said Hossam Sweilam, a retired general who served in the military for more than 30 years. “We are different from other countries. We have political problems. ... This (ruling) would be in the interest of the Muslim Brotherhood and could be a problem for the cohesion of the military.”

The objections by the Brothers and other Islamists have not been particularly reasonable – they argue that this would bring politics "into the barracks" and ask whether the list of conscripts, soldiers and officers would be released to political parties, or whether the people who guard voting stations will then choose this or that candidate. All of this is moot, since barracks can still be made politics-free, the only list political parties should have access to is the national register, and it's easy enough for army and police people to go vote when they are off-duty and out of uniform. After all, as Mohamed ElBaradei points out, most democracies grant a universal right to vote. (See a wider range of reactions by political leaders here.) There is little reason, in principle, to deny the military and police the right to vote ordinary citizens have. It is the logic of a praetorian state, where somehow these stand apart (or actually above) ordinary society, that considers such people "special".

The better argument is that granting a universal right to vote is that these institutions are not ready to implement the safeguards against abuse that exists in democracies. The police is clearly still mostly hostile to the Brotherhood in particular and many of the revolutionary parties. The army, with the backing of the Islamists, has placed itself above oversight in the new constitution. There is very little trust between any political actors, and between these institutions and the political class at the moment. This is not the time to experiment with a major change in regulation – it would be better to actually get elections organized at all, around a formula that is politically consensual. As Egypt continues to pay for the mistakes of the SCAF-led transition and the Brotherhood's go-it-alone style of politics (and their almost comically poorly written constitution), it limps from crisis to crisis with still no horizon for a normalization of politics – one in which the reforms that would, among many other things, enable everyone to vote could be carried out.