The crisis of the Egyptian judiciary

The problem of judges in Egypt is not new. In the sixties legal counsellor Momtaz Nassar called for an end to the government’s meddling in the judicial system; this led to a massacre of judges in 1969. The crisis resurfaced at the first conference of justice in 1986 and again in 2002 with prominent judges exposing the degree to which the independence of the judiciary was being threatened.

To be more accurate, however, we need to emphasise that the problem is not inherent specifically in the judiciary, but in the political system. In his book “Mediator in the Criminal Procedure Code” (1980), the then Professor of Criminal Law Fathi Sroor illustrated political interference in the judiciary by referring to a statement made by a prominent Indian freedom campaigner in the 1940s: “History is witness to the fact that the more tyrannical an authority is and the more it uses its weapons against freedom and rights, the more the courts became machines to be used as it pleases. This is not strange because the courts own majestic judicial power, and that power can be used for justice and for injustice alike. In the hands of a just government, a court is the best means of achieving justice and rights; and in the hands of an unfair government, it is the worst machine of revenge, injustice and resistance against rights and reform.” Interestingly, in later editions of the book, Sroor removed this quotation after he joined the Egyptian Ministry of Justice in 1986.

When Counsellor Yehya Alrifai announced his retirement from the law a few years ago he said that consecutive regimes in Egypt had stressed in their constitutions the principles of the rule of law and the independence and immunity of the judicial system; they criminalised government or other interference in any of the judiciary’s affairs. However, the same governments continued to strip the constitutional texts of their entire context in order to remove the judiciary’s independence in the interests of power for the executive.

Rifai’s statement exposed the ugly face of executive power. Proposals by the Judges’ Forum in 2002 tried to limit the ability of the Ministry of Justice to assign and appoint judges; assess their suitability and accountability; and close other loopholes which allowed the executive to intervene in salary levels and related issues affecting judges’ independence.

Efforts to keep the judiciary and executive apart have been ongoing for the past sixty years. The problem was aggravated by Hosni Mubarak during his period in office. He played the game to tempt senior judges to abandon their own independence in return for sweeteners. From 1992 Mubarak first raised the retirement age for judges from 60 years old to 62 before reducing it and then raising it to 64, 66 and then 70. In doing so, he was able to keep certain favoured judges in positions of power and thereby influence the judicial system to suit his own agenda.

The issue, of course, was never judges’ ages but the degree of control over the system that the government was able to maintain. Recent questions at the highest levels about judges’ salaries and benefits miss the point. Those who have opposed changes in this respect are fighting the wrong battle. At the end of the day, the real problem of the judiciary – its lack of independence from the executive – remains unsolved.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.