Judicial candidates forced to undergo unprecedented evaluations as presidency exerts further control
 
 

President Abdel Fattah al-Sisi issued a decree on Monday appointing 341 Faculty of Law graduates from the class of 2015 to the position of assistant prosecutor at the Public Prosecution. The state-run daily Al-Ahram newspaper reported that candidates were appointed simply “after the approval by the Supreme Judicial Council.” But the path to their appointment was anything but simple.

In an unprecedented move, all of the 2015 graduates applying for positions in the Public Prosecution were made to undergo a series of evaluations by non-judicial bodies — including the intelligence services — in order to assess their political leanings and their loyalty to the state. The process took many months and culled hundreds of applicants.

The presidency is tasked with issuing appointment decrees for Egypt’s four main judicial bodies: the Public Prosecution, the Administrative Prosecution Authority, the State Lawsuits Authority and the State Council. According to a deputy president of the Court of Cassation, the president’s role should not extend beyond the ratification of judicial nominations.

Critics say that, by requiring additional checks by non-judicial bodies, the presidency is interfering in the judicial appointment process as part of a wider strategy to further assert control over the judiciary and undermine its independence.

The General Intelligence Services and the Administrative Prosecution Authority

In July 2016, one year after his graduation from the Faculty of Law, Mostafa* applied to the Public Prosecution for the position of assistant prosecutor. In November of the same year, he was interviewed by the judicial inspection department of the Supreme Judicial Council (SJC). The first interview was followed by a second one in December with seven members of the SJC.

He was told that those who passed the second interview would be referred to the security authorities – the Interior Ministry’s Public Security Department, as well as the National Security Agency and the General Intelligence Services (GIS) – for background checks, with the presidency issuing appointment decrees for candidates who were cleared. According to Mostafa, the background checks were conducted between January and May of 2017.

The process had been routine up until that point. Yet instead of being appointed to a job, Mostafa was forced to undergo a rigorous and intrusive evaluation by the GIS.

In November 2017, several months after the background checks, Mostafa received a phone call from an employee at the judicial inspection department, who instructed him to go to the High Court of Justice at 7 am the next morning. He was told to go without his mobile phone or any metal items. “Not even your belt,” Mostafa says he was told.

“I arrived at the scheduled time. I asked what would happen next, but no one responded. Me and 34 other people, who had never met each other, got into a bus that took us to a place I’ve never been to before, because I’m not from Cairo. Later, I found out that we were taken to the General Intelligence Service headquarters,” Mostafa says.

According to the deputy president of the Court of Cassation, the applicants underwent several tests, and another psychological exam normally only administered to GIS applicants.

“We took 10 hours of continuous tests on a computer, without even any water. The first was an IQ test, followed by tests for religious, political, sexual and social tendencies, and loyalty to the country,” Mostafa recalls. “Then there were mathematics, long division, and logarithms. Each test was repeated three times in different forms.

“The tests included sensitive questions, which I can’t repeat here, and situations that a man of law would never be exposed to — questions like, ‘Which would you rather sacrifice, your mother or your homeland?’ ‘Do you laugh at obscene, inappropriate jokes or not?’ ‘If you are traveling abroad and you could either reside with a Muslim regardless of his nationality, or an Arab regardless of his religion, which would you prefer?’ ‘If given the choice, would you kill 100 Egyptians or 100 foreigners?’”

Less than 40 percent of candidates passed the GIS tests, most of whom were honor students, and the majority of them had parents who were judges, according to the results the SJC received from the GIS, the judicial source says. The SJC subsequently contacted another group of graduates who had already passed the SJC interviews and the background checks, to set dates for their GIS tests.

The number of candidates examined by the GIS eventually reached 800, only 200 of whom passed the tests, according to the judicial source. As a result, the SJC convened in March 2018 and decided to reexamine the candidates who failed the GIS tests with the help of academics and psychologists from the judicial inspection department at the High Court. An additional 161 candidates were later selected by the SJC after they passed the internal tests.

In April, and for the second time, the SJC sent to the presidency a list of 361 candidates who had passed both the GIS tests and the SJC’s internal tests. Still, no appointment decrees were issued. The presidency said the candidates had instead been referred to the Administrative Prosecution Authority (APA), which was asked to prepare a report to determine which candidates were fit for appointment.

In May 2018, Mostafa received a phone call from a person who identified himself as an officer in the APA. The officer asked him to submit personal photos of his parents and his family record to the APA headquarters in his governorate. Later, he learned from his colleagues who had applied for the same job that the APA investigations differed from one governorate to another. Some applicants were asked to take photos of the street where they lived, while others were inquired about using people in their neighborhoods. Some were visited at home by an APA officer who inspected their rooms.

The APA evaluations resulted in yet another round of culling. In June, the APA informed the SJC that it had prepared reports concluding that 50 of the 361 candidates were not eligible, according to the judicial source. The next step involved the APA returning the eligible appointment files to the presidency, which would, in turn, hand them over to the SJC to exclude the 50 names and then submit the updated list once more to the presidency for ratification.

Even so, the APA process was not the final step. According to the source, the presidency later informed the SJC that it would refer the applicants approved by the GIS and APA to the National Training Academy (NTA). The applicants would have to undergo additional NTA admission tests and join the academy for a full year, at their own expense, before any appointment decrees would be issued by the presidency. At this point, the SJC had had enough and refused to comply.

Applicants for positions in other judicial bodies have thus far not been put through the rigmarole of evaluations by the GIS and APA but they have faced the prospect of having to pass through the NTA, which would similarly grant the presidency and the GIS renewed power over judicial appointments.

The National Training Academy

Established on August 28, 2017, by presidential decree, the NTA aims to draw up policies for the training of youth cadres in all government sectors within the framework of the government’s administrative reform plan.

The presidency originally only had a supervisory role in the NTA. The body was headed by the prime minister, who presided over representatives from various ministries and government authorities. But in June 2018, the president issued a decree overhauling the management structure of the NTA. It is now headed by the president himself. On the same day, the president issued another decree forming the NTA’s board of trustees, which is also headed by the president, and made up of representatives from various bodies, including Major General Abbas Kamel, the head of GIS.

Following the decree to overhaul the NTA, the presidency informed the judiciary that all judicial candidates would have to undergo training at the NTA, for which they would need to pass fitness tests before admission. This is according to a deputy president of the State Council, who explained that the State Council rejected the proposal at the time, arguing that it interferes with the State Council’s independence, as enshrined in the Constitution. According to the source, the State Council informed the presidency that appointment procedures are set in the law governing the State Council and that training at the NTA is not a part of those procedures.

The source says that the State Council has yet to receive any notices for their candidates to undergo tests by the GIS and the APA like candidates for the Public Prosecution were made to do. Nevertheless, the State Council — which has fought a long battle to try and preserve its independence — rejected the NTA step outright.

Last May, the State Council submitted the names of candidates nominated for appointment from the 2014 and 2015 graduates. It is still waiting for the presidency to issue their appointment decrees.

While the State Council refused to subject its candidates to the NTA’s admission tests, the State Lawsuits Authority (SLA) was the only judicial body whose candidates (2012 graduates) underwent the tests, according to the deputy president of the SLA. He explained that the presidency’s years-long delay in issuing judicial appointment decrees prompted the SLA to consent to allowing their candidates to go through the NTA’s entrance exams.

The SLA deputy president, who spoke to Mada Masr on condition of anonymity, says that the admission tests at the NTA are similar to admission tests at the Military Academy. The tests include a medical examination, and tests in fitness, psychology, language and general knowledge.

He also points out that the majority of judges realize that their independence is being challenged by the NTA’s control over judicial appointments, an organization which is now headed by the presidency. In addition, he says that the NTA’s handling of judicial candidates is fundamentally in violation of the Constitution, because it requires judicial candidates to have a healthy and fit physique. Neither the Constitution, nor judiciary laws, preclude those with disabilities from appointment in the judiciary, as long as they are able to fulfil their duties.

The same source adds that applicants to the SLA who passed the academic tests received a month-long training program paid for by the SLA. He pointed out that the presidency vowed to ratify the appointment of all members of the graduating class after they passed their training, which the SLA has been hoping for since last July, to no avail. The SLA continued to receive applications for the position of assistant deputy from post-2012 graduates up to the 2016 class, which remains in the interview phase.

According to the source, it is not yet known whether the presidency will normalize GIS and APA tests for all future judicial appointments, as was the case for the Public Prosecution applicants, especially since the NTA’s admission tests include a psychological exam.

The background

Up until the late 1990s, judicial appointment procedures would typically only take one year, with law graduates being appointed a year after graduation, according to a judicial source. At the turn of the millennium, the pace of appointments began to slow down, especially since judicial bodies no longer requested appointments on a regular basis. The source says new judicial appointments are requested based on the number of judges retiring and the workload required, as well as pressure from judges hoping to secure appointments for their families.

But over the last couple of years, the pace of appointments has slowed almost to a halt.

The last appointment decree for the APA and the SLA was issued on August 2, 2016 for 2011 graduates, while the last appointment decree for the State Council was issued on September 9, 2015 for 2013 graduates.

Nasser Amin, the director of the Arab Center for Independence of the Judiciary and the Legal Profession, says that the procedures devised by the presidency for judicial appointments are a direct consequence of amendments to judiciary laws, which changed the way the heads of judicial bodies are selected. According to Amin, the amendments made it possible to undermine the independence of the entire judicial system.

On April 27, 2017, President Sisi ratified amendments to the laws governing the SJC, the State Council, the APA and the SLA. The amendments grant the president the power to select the heads of the four judicial bodies from a pool of three candidates nominated by each body. The amendments overturned a seniority-based system that was in place, under which the oldest members were made heads of the judiciary, and the authority of the president was limited to the ratification of their appointments.

Amin describes the unprecedented evaluations the 2015 class were forced to undergo as a “catastrophe.” He says that the new procedures undermine the entire process because security standards cannot be the basis for appointment to the judiciary, and no government bodies should have a say in the appointment of applicants to the Public Prosecution other than the ones stipulated the Constitution. Therefore, he argues, the interference by the GIS and the APA, as representatives of the security apparatus, and political bodies such as the NTA, invalidate the appointment process for all candidates.

Amin believes that the procedures enacted by the presidency will have a deep impact on the make-up of judicial bodies in Egypt in the future. According to him, members of the Public Prosecution who were subjected to scrutiny from security agencies and political bodies during their appointment process will be intimidated for the rest of their careers and will always be reminded that they were only authorized by the political or security leadership, which will undermine their independence in the future.

The latest developments

The outcry from various judicial bodies over the stalled appointments prompted a response from the presidency in December. At a meeting with various heads of the judiciary on December 23, President Sisi denied that he or other parties were interfering in the appointment process, according to a source who attended the meeting.

The president vowed to issue appointment decrees at the beginning of the new year for the delayed candidates of all four judicial bodies.

On February 11, three and a half years after they graduated, Sisi finally issued a decree appointing 341 of the 2015 Faculty of Law graduates to the position of assistant prosecutor at the Public Prosecution.

However, hundreds of candidates for positions in other judicial bodies are still waiting.

According to the source, Sisi also emphasized at the meeting that new judicial candidates will not be required to undergo training at the NTA, and that all candidates nominated by the Supreme Judicial Council and the high councils of the other three bodies will be included in the appointment decrees.

The source adds that, during the meeting, the president reiterated his commitment to the independence of the judiciary and the constructive separation of powers. But a set of proposed constitutional amendments currently making their way through Parliament would further shore up the powers of the presidency. Human Rights Watch criticized the amendments on Tuesday, saying they “could further undermine judicial independence by giving President al-Sisi tighter control over appointing senior judges and largely remove the State Council judges’ authority to revise legislation before it becomes law.”

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Randa Mostafa