The following is the second of a two part article by the Arab Reform Initiative, an independent research network, concerning the 2014 constitution’s treatment of human rights and the separation of powers in the government. The first part, published yesterday, addressed the constitution’s articles concerning the military and security apparatus. The second part, below, deals with the judiciary.
This article seeks to outline the development of civilian-military relations in the 2014 constitution because of the importance of this relationship in any state that aspires towards democracy. Most studies of democratic transition make connections between the ability to create civilian control over the decision-making process for the recruitment of military elites, policy setting for internal and external security, the placement of military institutions under civilian control, and the ability to make a democratic transition. Civilian-military relations and the position of the military have been the subjects of heated debate since the fall of Mubarak on 11 February 2011 when the takeover of the country’s affairs by the Supreme Council of the Armed Forces led to a period of political violence and mutual accusations of betraying or reversing the revolution. The paper also discusses the position of security institutions (the police) in the constitution to evaluate the extent of its triumph over civil rights and over the freedom to oppose the Egyptian internal apparatus, which has been connected with immense violations of human rights since the revolution began on 25 January 2011.
The first part of the paper, published Tuesday, undertook a short discussion of the nature of the civil state in Egypt through analysis of civil-military relations and political life.
The second part of the paper discusses the security apparatus with regards to civil rights and freedoms, especially the right to protest. The paper compares the 2014 and 1971 constitutions to reveal the development of this relationship over time and to investigate the civilian state in Egypt.
The judiciary in the constitution: lost opportunities for reform and enshrinement of the judiciary’s impenetrability
By Karim El Chazli, a PhD student in law at Université Paris 1 Panthéon-Sorbonne.
The provisions regarding judicial power in the 2014 Egyptian constitution are the best embodiment of the collective vision of the judiciary itself, of its role in the country, of its relationship with other institutions, and of its relations with the Egyptian people. This is unsurprising given that the Constituent Assembly that drafted the constitution submitted to the wishes of judicial leaders and left it to them to draft the articles related to the judiciary. It was as though these were only concerning judges rather than part of a constitution for all the Egyptians, which should reflect their wishes and interests. The role of the Constituent Assembly was mainly intervening to ease tensions between judicial bodies when the interests of those bodies were conflicting.
These procedural shortcomings in the drafting of the constitution resulted in substantial overall shortcomings. The text on the judiciary consecrates the notion of the independence of the judiciary from the state, because on one hand, it gives numerous and unprecedented privileges to the judiciary, and on the other hand, it does not establish any mechanism enshrining the idea of accountability or control by the people, or balance of powers.
The most prominent example of this tendency is Article 193, which gives absolute power to the Supreme Constitutional Court in choosing its members, making it the first constitutional court in the world that has this kind of authority. The nature of the work of a constitutional court implies that it has a political role, necessitating the participation of other authorities in the process of choosing its members. This is because its basic function is the control of the constitutionality of laws, which are the outcome of a political activity. Some might say that this control is carried out through the application of the constitution and not according to the personal opinions of members of the judiciary. However, anyone who has experience of constitutional adjudication knows that constitutional texts are vague texts and may have multiple interpretations. The role of the court is not to reveal one meaning embedded in the constitutional text but to choose between multiple possible interpretations. Therefore, in every state, the other state powers with democratic legitimacy participate in the process of choosing the members of the constitutional court.
It is unimaginable in any country that describes itself as a democracy that the fate of the country could be left to a group of unelected people, however high their abilities and however pure their intentions, without any fixed guarantee in the interests of the elected authorities. The same observations are applicable to the choice of the Public Prosecutor and the formation of the Supreme Judiciary Council (SJC). In most countries, parliament and other authorities participate in the formation of councils of the judiciary and the choice of public prosecutor.
In addition, Article 121 of the constitution makes it necessary that two thirds of the parliament give their agreement to any amendment of the laws regulating the judicial authority at a time when the Egyptian judiciary is in need of radical reform. Equally, the constitution does not require the judicial structures to give any reports or statements to parliament, so that the representatives of the people may be assured that the service of justice is well done and that the judges are not abusing their wide powers.
After the constitution immunised the judiciary from any reformist input from parliament, it has relinquished the wise suggestion that was proposed in the earlier draft (prepared by the committee of 10), according to which parliament may not be dissolved directly if the law of its election was judged unconstitutional. This makes us question whether the goal of the constitution is to subjugate parliament, the representative of the will of the people, entirely to the power of the judiciary. Is the philosophy of the constitution to ensure the protection of the unelected institutions of the state from any kind of external control and make any reform impossible? The judiciary and other state institutions may fear any transgressions that elected bodies might undertake, but these fears are no justification for these kinds of provisions.
Absolute power for any authority is entirely corruptive. The constitution gives numerous powers to the judiciary without giving any guarantee of the good use of these powers. On the other hand, the constitution does not confront the most important problem of the Egyptian judiciary, which is the lack of clear standards for choosing judges, which leads, in reality, to nepotism. Newspaper Al Shorouq published on 7 December 2013 horrifying news that a quarter of those who were appointed judges in 2013 were sons of judges, and that this high proportion does not include relatives of judges, such as nephews and relations by marriage. Worryingly, the authorities did not deny this information or offer any explanation or justification for what was mentioned in the newspaper article. It was up to the constitution to stipulate clearly that the selection of judges should be only through a contest overseen by a committee composed of judges and non-judges. But the constitution did not do that and merely stipulated “guarantees” for the judiciary. The continuation of these kinds of transgressions has the effect of transforming the judiciary from one of the state institutions to merely a group of individuals with shared interests.
The conception of the judiciary as reflected in the constitution not only expresses the vision of the judiciary but also what could be called “the Egyptian conception of the independence of the judiciary”. The notion of the independence of the judiciary, as defended by the movement for independence of the judiciary, was crystallised in the 1960s in the context of the authoritarian regime, in which elections were rigged. It was, therefore, logical to demand that the executive and legislative authorities should be distanced from the judiciary, even if this led to the judiciary being independent from the state itself. Independence of the judiciary in an authoritarian state is certainly better than its transformation into a tool in the hand of the state.
The movement for the independence of the judiciary continued to defend this conception until the revolution of January 2011 when civil society and a section of the opposition also moved to accept it, and, eventually, everybody believed it as the only way of conceiving judicial independence. The majority of lawmakers, politicians and the public still believe in this conception, unaware that the time has come to review the Egyptian conception of the independence of the judiciary, which crystallised in particular circumstances.
Egypt in 2014 is supposed to guarantee fair elections in a way that sets institutions that have sufficient legitimacy to have some say with regards to justice, as is the case in all countries of the world. In Egypt of 2014, corruption had extended to all institutions without exception, and in the absence of standards for choosing judges, the door was opened to positions being passed on to relatives. It is no longer possible to be content with saying that the judiciary will reform itself. The philosophy of the Egyptian conception of the independence of the judiciary supposes that the danger can only come from outside, from the executive; however, reality has proven that the danger that threatens the judiciary could also come from within. Therefore, a focus on blocking attacks from the outside reflects a defensive and group logic more than the championing of justice as a principle.
It has become urgent to return to international standards of the independence of the judiciary and develop the Egyptian conception of judiciary independence, taking into consideration the changes discussed here. Independence is not an end in itself. International standards inform us that the independence of the judiciary is merely a means to guarantee its impartiality, guaranteeing the independence of the judiciary from any influence so that the judge applies the law alone without any personal bias for or against one of the parties, and without fear. Independence is a necessary condition to allow impartiality but it is not a sufficient condition.
From this arises the paradox: the independence of the judiciary in the Egyptian conception leads to the judiciary becoming impenetrable. This impenetrability leads to the judiciary becoming a sect with its own social and political interests and leanings, weakening its impartiality and impacting its ability to represent the different groups of people in the name of whom the laws and judgements are issued.
Equally, the impartiality of judges requires that they be trained and learn how to put aside political and religious convictions at the time of judgement so that decisions are subject only to the law. There is no need to point out the extent of the shortcomings which characterise the training of judges. What is fundamental is that there is no benefit in having an independent judiciary if it is not impartial, since impartiality is the main value for the idea of justice. The constitution does not contain any guarantee for this kind of impartiality among the judges.
Equally, the constitution ignores the necessary balance between the independence of the judiciary and its efficiency, as is the case in other countries. It is not appropriate for justice affairs to be solely addressed by a few men in their seventies who arrived in their positions by virtue of their seniority and remain there for one year only. The consequence of this situation is that those judges are unable to reform the judiciary even if they had the intention or idea of it. What happens is that the members of the Supreme Judiciary Council (SJC) leave their posts at the end of June every year and hand over the judiciary to their successors in a worse state than the previous year. The constitution tries to maintain the situation as it is by stipulating that agreement among two thirds of the parliament is necessary to amend any article in the law on the judiciary, making the seniority rule sacrosanct and immunising the SJC from any checks and balances or accountability concerning the effectiveness of the judicial system. The danger of the immunisation and impenetrability of the judiciary is its transformation into a sect with group interests that do not necessarily coincide with those of the general public.
The result could be that the judge acts as though he belongs to the “judges’ sect”, rather than a public servant rendering decisions in the name of the people. This is something seen periodically, when there is friction between a judge and lawyers or policeman, and a crisis between two people turns into a crisis between a group of judges and a group of lawyers or policemen.
This kind of friction is reminiscent of tribal logic and a rejection of the rule of law. During the constitutional debates, it has become clear that the judiciary is not one group and that every judicial body is a distinct group, which finds great difficulty in communicating calmly and having rational debates with the other judicial bodies.
The only way to avoid the danger of state balkanisation and its collapse is to create bridges and shared spaces between different state institutions such that their interests are not completely in opposition to each other, open these institutions to society and embrace the standards of adequacy in choosing its members, rather than standards of loyalty and social class.
In short, the section of the 2014 constitution that deals with judicial authority does not establish a democratic state, and does not deal with the challenges facing the Egyptian judiciary. These texts might have been acceptable had they been put forward in the constitutions of 1954 or 1971, but they are not appropriate for Egypt in 2014. The most precious thing that the judiciary has is the trust of the people. Their faith in the Egyptian judiciary has been shaken after the revolution in view of the great challenges that it has faced and for which it has not been prepared professionally or politically. Therefore, the Egyptian judiciary needs to build a new legitimacy founded on impartiality, transparency, effectiveness and adequacy. These days have taught us that rejection or delay of reform could lead to revolution.
The Arab Reform Initiative was founded in 2005 by sixteen think tanks and research institutes from the Arab world, Europe and the United States. ARI is an independent research network with no ties to any specific country or any political agenda related to the region.