In 2006, a group of judges agitated to demand an investigation of the 2005 elections fraud, opening up the tumultuous question of the judiciary’s independence. The movement had a loud media presence at the time.
Some of this optimism and faith in the judges carried on in the wake of the January 2011 revolution, with many activists seeing the judiciary as “an island of integrity, rather than a co-opted group,” as Nathan Brown, law and politics scholar at George Washington University, puts it.
But more recently, and like every other institution in the country, the judiciary has been caught up in the struggle between the military regime and the Muslim Brotherhood.
In this light, the judiciary and its courts have come to be seen by some as complicit elements of a criminal justice system being used in its entirety by the military regime to quash dissent, by Islamists or anyone else.
Several human rights and legal aid organizations held a press conference called “The Arms of Injustice” in early January, in which lawyers expressed alarm at the draconian sentences being handed out in cases involving protesters and activists, such as the 17-year sentences in courts of first instance for a group of Al-Azhar students, and the much-reported 11-year sentences for female Brotherhood protesters in Alexandria.
Mohamed Mostafa, chief judge at the Haram Court of Appeal, takes a pedantic view of the rulings.
“Criminal appeals sentences cannot exceed that given in the first trial,” he explains.
This is part of the universal legal principle that a defendant cannot be disadvantaged by his or her appeal. “So the judge in the first trial will sometimes rule with the maximum sentence allowed in order to allow the appellate judge room in his own sentencing. People are quick to criticize the first instance rulings but they do not then look at the final sentence which actually gets executed.”
For rights lawyers, the sentences are legal aberrations that contribute to a loss of the courts’ credibility.
“Even though some of these verdicts have been and will be overturned on appeal, they send a strong message to the public that the courts are making decisions based on political calculations,” veteran human rights lawyer Ahmed Seif says.
The rulings however are just the tip of the problem. Behind them, resides a whole process deemed undue by human rights lawyers and advocates. This process transcends executive pressure and goes deeper into the structural impediments to judicial reform.
Seif — whose own son Alaa Abd El Fattah has been in jail for more than a month with no trial date set — points to what he believes is the unprecedented phenomenon of judges going to prisons and other spaces controlled by the Interior Ministry to attend hearings, mostly for renewed detention of prisoners.
“There is a long history of prosecutors interrogating detainees in prisons — I myself was interrogated in a barracks in 1972,” Seif says. But that judges are doing this uncritically is a dangerous development. There are multiple recent examples of interrogations and hearings taking place without the defendant’s lawyer present, and in the company of police officers.
What Seif describes may be further explained by the deeper intertwining of various units of the criminal justice system, namely the police, the prosecution, and the courts.
For one, there is an active revolving door through which lawyers working for the state can change positions and careers, moving from police work to the prosecutor’s office to the judge’s bench and sometimes back again. This process is expedited by the fact that graduates of the Police College are automatically granted a law degree.
There was a well-reported increase in the number of policemen and state security officers joining the judiciary as both judges and prosecutors under ousted President Hosni Mubarak. Because of this, judges often hear cases argued by prosecutors who were former colleagues, which can present bias and disadvantage to defendants.
There is also the nepotism that scholars have long used to describe the patterns of appointments to the judges’ bench and high-level positions within the prosecution office.
“There are many families with members in different branches of the system — one in the prosecution, one in the police force, one who is a judge,” Adel Ramadan, a lawyer with the Egyptian Initiative for Personal Rights, says.
But for Mohamed Badawy, head of the Awseem prosecution office in Giza, this intertwining is not necessarily harmful. He started his career in the police force, went on to become a prosecutor, and then joined the judges’ bench in 2009. After President Mohamed Morsi’s ouster last summer, he was asked by the General Prosecutor’s office to return to the prosecution, and did so in October despite what he described as a clear preference for judicial work.
Badawy says experience in the police force gives new prosecutors an advantage: they have more confidence and “will know how to deal with suspects.” He claims that common experiences and circles of acquaintance between police and prosecution members benefit their work. He and other prosecutors interviewed in Awseem deny that there is ever any conflict between them and the police.
“The Ministry of Interior has been very cooperative, especially after June 30. We complete each other’s work,” Badawy says. The police executes directives more quickly; Badawy attributes this to officers being more aware of the watchful eyes of the public than before.
For Heba Morayef, the Egypt director for Human Rights Watch, what Badawy describes as functional collaboration between the prosecution and police is rather a relationship of subservience.
“The public prosecutor’s office is continuing its trend of serving the executive. They have a working relationship with the police and a tendency to rubber stamp reports from state security,” she says.
How does this close alliance translate in the courts, which are meant to serve as the main check on the prosecution’s work? Judges have an inquisitorial role in Egypt’s legal system, supervising the collection of evidence and directly questioning suspects in court. This is in contrast to the adversarial system of the US and the UK, where judges passively receive evidence gathered by the two parties.
“While the judiciary is independent, the police and security agencies have a clear agenda,” Brown said. “Many cases depend on the evidence they present. When they present evidence that strikes most foreign observers as laughable — such as in the Wadi Natroun case — courts often take it seriously. ”
Throughout this process, the presumption that a person is innocent until proven guilty, seen as a cornerstone of any criminal defense system, starts to appear more and more elusive, especially as for decades this system has been operating under Emergency Law and its prioritization of state security over individual rights and freedoms.
Seif draws attention to a high-profile but little noticed derogation from the principle in a statement by Minister of Transitional Justice Amin al-Mahdy last month, saying that the government’s classification of the Brotherhood as a terrorist group “could not be refuted in court.” In his career as a judge, Mahdy has chaired the State Council and the High Administrative Court, and he served on the International Criminal Tribunal for the former republic of Yugoslavia.
Potential for reform within the mesh of structural boundaries and executive pressure seems blurred at best. While the mid-2000s movement for an independent judiciary raised the profile of the sector as a potential vehicle for change and a bastion of credibility, the post-2011 military and Islamist rules dissolved much of this hope.
With both leaderships seeking to subjugate the judiciary to serve their own rule, the latter found itself mostly seeking self-protection. Ramadan describes it as this: “The judiciary is an institution with distinct interests and it has always looked for alliances to protect those interests.”
For many, the recent behavior of the justice system reads as an attempt to re-assert power after its struggles over the past three years, and this cannot be separated from its political alliance with the current regime.
“We can see this by comparing the speed with which decisions to release detained protesters used to be given before June 30 versus now, in the orders for arrest of unprecedented thousands, the quick referrals by prosecutors of suspects to trial,” Ramadan says.
Brown asserts that although there is a certain belief that much of these incidents unfold through executive pressure, a lot is emanating out of the judges’ own will.
“I think it is much more likely that what is happening now is that judges are acting willingly and on their own, not at the direct instruction of the security agencies. The implications for political rights of recent court judgments are extremely troubling, but I do not see evidence that they are examples of what people sometimes refer to as ‘telephone justice’,” he says.