Before he read out the verdict acquitting eight senior Interior Ministry officials accused of killing protesters in 2011, judge Hassan Eissa in Zagazig’s Criminal Court turned heads earlier this month when he delivered a personal heartfelt message to the accused officers from the pedestal.
“You were victims, you were the first to be broken, and we were broken with you. And I, personally, and not in the name of the court — the court doesn’t apologize — but, personally, as a citizen, I apologize to you for all the insults you’ve endured. If it were in my hands I wouldn’t have called you to court in the first place. You have to know that you are not defendants, you are heroes,” Eissa said, shortly before the room erupted in applause — as seen in this video.
As Eissa’s speech shows, verdicts in criminal courts eventually come down to the conviction of the judge, who is allowed to take liberties when interpreting the evidence presented.
On Monday, the same Minya court that referred the papers of 529 defendants to the Grand Mufti to approve a mass death sentence in March, sentenced another 683 to death and upheld the death sentences of 37 from the first group, downgrading the verdict for the remaining defendants to life in prison. The same court issued several harsh sentences en masse against Muslim Brotherhood members in recent months, with some verdicts reaching 88 years in prison.
Like the Zagazig case, the Minya case illustrates a strong judge’s bias against the Muslim Brotherhood and other dissident groups, which is consistent with the security crackdown on these groups. Judges purport that their decisions are not influenced by the security apparatus or the state by and large. These convictions are arguably an amalgam of historical social, political and human factors that are as influential as the law.
A history of love and hate
The golden years of the judiciary is a term coined from the era of 1882 to 1952, when this branch of government was known to have had the most independence and integrity.
Law professor Amr Shalakany describes in his recently released book, “The rise and fall of the Egyptian legal elite,” that the legal elite “ruled the country, in the broader sense of the word,” during this golden era by branching out into leading positions in different fields, whether political, economic or cultural. This is the era in which the concepts of the independence and prestige of the judiciary were formulated, he adds.
But this has been disrupted as the judiciary has become increasingly immersed in politics.
Since the rule of former President Gamal Abdel Nasser, the judiciary has developed a complex relationship with the state, in which at times it would function as an ally and at others as an enemy battling for its own independence.
“It is necessary for our legal elite to make peace with its past in coexisting within a military rule for six decades and to honestly face the results of this coexistence which led to the formation of an unfavorable relation between law and security,” Shalakany writes in his book.
He recounts how Abdel Razak al-Sanhoury, head of the State Council at the time, provided legal legitimacy for Nasser in the early years following the 1952 coup, by manipulating the constitution to sideline the Wafd Party, which Sanhoury had a personal bias against.
“These people [legal elites], led by Sanhoury, decided at one point or another to get involved in politics, and so they ruled as politicians and not as men of the law,” Shalakany maintains, adding that, as politicians do, the legal elite of the 1952 regime alternated between upholding and disregarding the constitution depending on convenience, “and they opened the door to the military rule that ended up destroying them and the legal principles that they belittled.”
Soon enough, the relationship between Nasser and the judiciary was shaken. Sanhoury ended up being famously beaten up by protesters on the stairs of the State Council in 1954 and accused Nasser of orchestrating the attack. The Nasser regime unleashed its oppressive side, disbanding all political parties in 1953, followed by the State Council, and dismissing 200 judges in 1969 on charges of opposing the regime in what has become known as “the massacre of the judiciary.”
Jump to 2005, and the fractious relationship between the judiciary and the regime was evident again in the judges’ movement to defend their independence, particularly in the face of fraudulent practices during the elections under the rule of Hosni Mubarak.
The rule of Brotherhood figure Mohamed Morsi exacerbated the call for an independent judiciary, as the Brothers became the state’s common enemy and government institutions, the judiciary included, allied for its ouster.
The judges were involved in a direct standoff with Morsi after he made a series of decisions that were seen as a breaching of the independence of the courts, such as shielding his decisions from judicial oversight, removing the general prosecutor from his position despite his legal protection and contesting the Supreme Constitutional Court’s decision to dismantle the parliament.
In a recent interview, Justice Minister Nayer Othman said that, while their independence remains intact, judges were “psychologically affected” by this period, which, according to him, aimed to destroy the judiciary. He suggested that the movement of the judges contributed to the downfall of Morsi, especially after he made plans to lower the age of retirement to 60, effectively removing 3500 judges from active duty.
“The judges are acting with the mentality that we are the state and hence are keen on the preservation of the state,” a young State Council judge, who spoke to Mada Masr on the condition of anonymity, said.
A strong bond with the police
History aside, an organic relationship between the judiciary and the police is believed to have influenced formulated verdicts.
Human rights lawyer Ahmed Seif al-Islam explains how judges and police officers are closely-knit, especially in villages, by means of professional collaboration and social relations. In criminal branches, the work of prosecutors who become judges includes plenty of collaboration with the police.
“There is an intimate bond between the judiciary, police and military concerning work and family relationships. In cases concerning the killing of protesters [where policemen were accused after the January 25 revolution], the prosecutor in a case could have been prosecuting an officer who worked with him before,” the anonymous judge added.
Trust marks the relationship between the judiciary and the police, says Professor of Political Science and International Affairs at George Washington University Nathan Brown.
“The [prosecution] now seems to be accepting information uncritically from the security services and prosecuting cases that are based on weak evidence or innuendo. If the [prosecution] — which is judicial in composition — acts that way, it is not surprising that some courts go along,” he says.
Age, not training
The performance of judges and their resulting rulings is sometimes attributed to poor training.
The process of becoming a judge starts in the faculty of law, which surprisingly accepts students who have finished high school with a score of around 85 percent all the way down to 50 percent for the faculty of law in open universities.
Shalakany laments in his book how the faculty of law has gone from being known prior to 1952 as the “faculty of the ministers,” for the large number of its alumnus who end up in senior positions, to being known as a last resort for students whose score is too low to get in to any other faculty.
Shalakany explains how the large numbers of students (40,000 a year in Cairo University’s faculty of law) has rendered the education at the university a joke, while it continues to produce people who end up in the highest positions in the country.
The anonymous judicial source said that the education system itself kick starts an inadequate process, in which the majority of those in the judiciary are stuck in a circle of routine and conformity with little exposure, self-development and critical thinking. For one, research and travel, he says, are not built into the system and are at judges’ own expense and will.
“It has become routine work. Most judges have the mentality of an employee who just wants to work and get by,” he says.
He explains that training occurs during the seven years that law graduates spend in the prosecution before becoming judges. At the age of 30, those in relevant branches of the prosecution are automatically transferred to the judiciary with no additional screening.
Career advancement after that is mainly due to seniority. Promotions are decided on this basis. The Supreme Judicial Council screens promotions, which are approved by the president. The law allows promotion to some positions beyond seniority based on reports issued by the Judicial Inspection Authority, affiliated with the Ministry of Justice. However, this law limits these exceptions to a quarter of the available positions.
Seniority shields judges from disciplinary measures. The judiciary law details a process that enables the courts to reprimand judges verbally, or in writing, or remove them from their positions. However, this mechanism stops at a certain level of seniority, when judges are no longer susceptible to inspection or disciplinary measures.
Judge Essam Tobgy says that the judges could be subject to disciplinary measures for severe mistakes in the process, however, they cannot be challenged for their verdicts, in order to allow independence with no fear of retribution.
Seif al-Islam further explains that a sense of solidarity within the judicial community doesn’t allow for the full activation of the collegial disciplinary system. He adds that reluctance among lawyers to aggravate judges also renders the mechanisms to challenge them not entirely effective.
The seniority system has moreover allowed little change in the judiciary since Nasser’s era, the anonymous judge says, whereby the running belief is that the older judge knows better and that the younger one should follow the current in order to move forward.
“There are those who hope for internal change, but this will only happen through the mentalities of the younger generation, which has seen a lot,” the judge suggests. But little hope is left for him and others to stand against the prevalent conservatism of the judiciary.
Judges and politics, post revolution
Tobgy asserts that the facts of the cases are what form the “conviction of the judge” that guides verdicts in criminal cases. However, he explains how the perception of these facts can change according to the political mood.
“The January revolution consisted of a number of crimes under criminal law, however the judiciary after the revolution considered that people were oppressed and demanding their rights, and took into consideration that there is a state of revolution. Yet, with the current situation and the turbulence of the state, judges are activating the law,” he says.
“The revolution was peaceful and became violent, so it is time for the state of law to return. No one accepts what’s happening in the country and the law is the deterrent,” he adds.
The face-off with Morsi exacerbated this position.
“The judiciary realized that the success of the revolution would not be in its best interests,” says Seif al-Islam, explaining the judiciary’s staunch stance in cases against activists accused on the basis of the newly passed Protest Law.
The demands of the judiciary during the drafting of the 2014 Constitution noted increased anxiety about its independence in the aftermath of the revolution. One of the demands, seen as excessive even by some judges, such as Tobgy, was for the judiciary’s budget to be shielded in a way similar to that of the military.
For Brown, some of these demands reach “a degree of independence that would make judges unaccountable to the society in any way.”
Public rifts between judges over their political position has been a further sign of an unhealthy implication in politics. An example is the public feuds between the Judges Club — led by Ahmed al-Zend — and Judges for Egypt, who are known for their support of the Muslim Brotherhood. The Judges Club, which doesn’t hide its support for the military regime, disqualified the majority of Judges for Egypt from the club due to their political activities.
While judicial law prohibits judges from “political work,” it has nothing against judges voicing political opinions outside of the court. However, Tobgy says, there are grounds to challenge a judge and remove him from the case if he has expressed his opinion publicly about the matter at hand.
Shalakany warns in his book of the danger of a politicized judiciary.
“The greatest danger lies in the ability of a certain minority — the one that speaks in the language of the law and weaves its arguments and proofs — to oppress the majority of the people who are not qualified to decode the legal logic … and which threatens to kill any revolutionary project in its cradle.”