Who will pay for unleashing ‘the shackled hands of justice’?
جنازة النائب العام الأسبق هشام بركات - أرشيفية

During a phone interview on Ala Masouliti television show, hosted by presenter Ahmed Mousa on Monday night, Judge Mohamed Nagy Shehata talked about a new means of achieving justice.

Shehata, who has become renowned for issuing controversial mass death sentences, demanded the “amending [of] the Criminal Procedures Law to immediately enforce court rulings.”

A highly agitated Moussa replied, “People want to kill those people in jail [Muslim Brotherhood members], they want those people in red suits executed today. They don’t want to wait for appeals… They want them executed now.”

Moussa asked about the means by which such demands could be legally accomplished, and Shehata said, “It’s simple.”

“You review these crimes before the Supreme State Security Emergency Court, whose verdicts are ratified by the president of the republic and cannot be appealed.”

Bypassing the Court of Cassation in terrorism cases was not the only legislative suggestion Shehata made. He also proposed amending the Criminal Procedures Law, which currently forces judges to hear all witness testimonies in such cases.

Shortly after Shehata’s call, Justice Minister Ahmed al-Zend asserted — on the same show — that the ministry plans to file a new legislative draft with the Cabinet that will include all of Shehata’s suggestions. He added that he was “certain the amendments would pass.”

These suggestions were also made on other television shows and channels by several guests, mostly judicial. Although at first glance they might seem like an angry reaction to Monday’s assassination of Prosecutor General Hesham Barakat, they have led to speculation that such pressure could result in actual legislative changes.

Such a move would enable death sentences to be ratified without going back to the Court of Cassation, and President Abdel Fattah al-Sisi wouldn’t be able to legally justify death sentences issued by the courts in the way he has been accustomed to in recent months.

During his latest visit to Germany, Sisi said he “doesn’t interfere in independent matters of the judiciary.” He also said that all death verdicts were issued by courts belonging to the first stage of litigation, and that further steps would take place to ensure justice.

Sisi’s speech at Barakat’s funeral on Tuesday reinforced an identical vision to that of Shehata and Zend on Monday. Whether or not this is the president’s personal opinion, or is reflective of changes that are likely to take place, remains to be seen.

During the speech, Sisi said “the hands of justice are shackled by laws,” and this situation has to change.

“We’re not going to wait on this,” he added. “We will amend the laws to make us able to implement justice as swiftly as possible.”

He further clarified: “Within days, we will review new amendments to the Criminal Procedures laws in relation to ongoing developments,” as it is pointless to “try people for five or ten years while they make orders from inside their cages. Their orders are executed while we sit here abiding by the law.”

Although he was careful to clarify: “We will respect the law, but we will change the law in order to face this [situation].”

Addressing judges Sisi said, “We are abiding by the law. If you issue a death sentence, the death sentence will be carried out.”

Lawyer and head of the Arabic Network for Human Rights Information (ANHRI), Gamal Eid says Sisi’s remarks “come from a president with limited judicial information,” adding that “he should’ve consulted with his legal advisors before making such statements.”

According to Eid, “this is the worst time to speak about legislative amendments when everyone is seeking revenge over the horrible crime that is assassinating the general prosecutor.”

Constitutional law professor at Cairo University, Raafat Fouda, agrees with Eid. He claims that making such decisions in a “moment of anger” might cause serious problems for all parties involved.

All countries need to amend laws for different reasons, he says, “but there’s a necessary balance to any amendments, which is protecting the rights and freedoms of citizens, so that the innocent are not harmed alongside the guilty.”

This is not the first time an amendment to the Criminal Procedures Law has been proposed.

In February, the government approved a draft law by the president to amend articles 277 and 289 of the Criminal Procedures Law, which concerns witness testimonies.

The amendment made summoning or hearing witness testimonies optional and reliant on the judgment of the court, contrary to the original text, which forces judges to hear all defence and prosecution witnesses.

The explanatory note annexed to the draft law, submitted to the Legislative Department at the State Council, claimed that “practice has often showed bad faith from the defence, as they use legal loopholes in articles 277 and 289 of the Criminal Procedures Law regarding requesting hearing witnesses who made statements during the prosecution’s investigations,” privately owned Youm7 newspaper reported. “They leave the court incapable of ruling in cases, despite the clarity of evidence, only to abide by the law.”

However, the reasoning proposed by the government didn’t convince the State Council. In March, the Council rejected these amendments.

Informed sourced told privately owned Al-Shorouk newspaper that the rejection was because “the amendments oppose granting defendants and their lawyers the right to defend themselves, as mandated by Article 198 of the Constitution.”

Moreover, “they defy the principles of fair trial as mandated by law, in addition to contradicting the Criminal Procedures law itself, which mandates that the court should carry out full judicial investigations into cases, and consider hearing witness testimonies, whether summoned by the defence or the prosecution, an integral part of the process.”

Lawyer Essam al-Islamboly shares the same views, as he considers such amendments to be “a constitutional crime,” that contradicts the latest constitution, which holds witness testimonies as a main pillar of evidence.

He criticized whoever proposed these amendments for having “no knowledge of the law, its principles, justice or the basics of litigation.”

New questions have been raised as to whether these same amendments, which were rejected by the State Council, might come back in the aftermath of Barakat’s assassination.

It also coincides with news that the Minister of Transitional Justice, Ibrahim al-Heneidy, asked the Technical Secretariat of the Higher Committee for Legislative Reform to quickly finish reviewing the Anti-Terrorism Act.

The Act was referred to a Justice Ministry committee last week, to be presented to the Cabinet on Wednesday, in preparation for its issuance at the earliest possible moment, according to privately owned Al-Masry Al-Youm newspaper.

Eid believes that the president doesn’t have any legislative or constitutional right to issue such laws, since the roadmap that was announced following the overthrow of former President Mohamed Morsi on July 3, 2013, which the constitution was based upon, mandated the holding of parliamentary elections before the election of a president, which didn’t happen.

Whether the State Council accepts the amendments now, under pressure from the executive authority, or not, Eid says judges need to “prove that they don’t have double standards.”

He adds that judicial independence has been dwindling, and that there have been persistent attempts use legislation to support government oppression.

Eid contests that “a few respectable judges remain,” although he worries about the effect that a “lack of respect for the justice system” might have on them.

Fouda asserts that justice will not be achieved through amending laws, but rather by establishing new courts. “Does it lead to justice when a judge has to look into 1200 cases per day?” he asks.

“These amendments would be a victory for terrorists,” Fouda explains, adding that they will affect all citizens through an over reliance on state security information and not witness testimonies.

“Laws don’t hinder justice; rewriting or removing them hinders it,” Eid concludes, predicting that “the worst is yet to come,” from both the state and terrorists, “as oppression will only breed more terrorism.”

Mohamed Hamama