Dissidence and Deference Among Egyptian Judges

by Mona El-Ghobashy
published in MER279

After the coup of July 3, 2013, judges in Egypt repeatedly shocked polite world opinion. In hasty proceedings held in police facilities, in the absence of defense attorneys, courts passed down sentences of death and life imprisonment for thousands of supporters of the ousted Muhammad Mursi, Egypt’s first elected president. In one pair of cases in Minya province in 2014, 1,212 people were condemned to die for the killing of two policemen. Mursi himself faces six separate trials. In one of these, related to Mursi’s escape from illegal detention as a political prisoner in the early days of the 2011 uprising that unseated Husni Mubarak, judge Shaaban al-Shami imposed the death penalty. Shami had ordered Mubarak released in a 2013 corruption case, and two years later was promoted to assistant justice minister for forensic medicine. In that capacity, he vehemently denied the medical examiner’s statement that the body of Italian researcher Giulio Regeni, murdered in early 2016, showed signs of torture.

It is not just members of Mursi’s Muslim Brothers who have fallen victim to severe court judgments. In February 2015, judge Nagi Shihata sentenced 230 activists, including the neo-Nasserist Ahmad Douma, to life in prison for a December 2011 protest against the ruling military council. In March 2016, a Minya court sentenced three Christian teenagers to five years in prison for producing a video mocking ISIS. In May, special “terrorism” circuit courts imposed jail terms ranging from two to five years on 152 protesters contesting the government’s “transfer” of two Red Sea islands to Saudi Arabia. (An appeals court later replaced the prison sentences for 47 of the convicted with fines of 100,000 Egyptian pounds, or $11,270.)

Off the bench, judges have been no less harsh in their public statements. There have been gratuitous swipes at the Egyptian poor, as when Justice Minister Mahfouz Sabir told a television interviewer that children of garbage collectors do not come from a “a respectable milieu” and thus are unqualified to serve as judges. There have been declarations of “thirst for revenge” upon the Muslim Brothers, as when Sabir’s successor Ahmad al-Zind shared with a television presenter his wish that 10,000 Brothers be killed for every soldier slain in insurgent actions since the coup. “I swear by God Almighty that, personally, the fire in my heart will not be extinguished unless for each one there’s at least 10,000.”

What has happened to the Egyptian judiciary, long seen as a pocket of integrity within a repressive state? It may not be the right question.

The judiciary is not a uniform, faceless body. There are three apex courts, each sitting atop an intricate judicial hierarchy of its own, and specializing in civil/criminal, constitutional and administrative families of the law, respectively.

And Egyptian judges have always been deeply divided over conceptions of the law, worldviews and orientations toward the executive. The dissident judges who were hailed as heroes during the Mubarak years are now purged, exiled, imprisoned or facing trial. The judges who dominate the bench and airwaves today, under President ‘Abd al-Fattah al-Sisi, stand shoulder to shoulder with generals and police chiefs to reassert state power. In the judiciary, as in every Egyptian institution, the 2011 revolution and the subsequent reaction exploded conflicts that had been contained and crystallized political loyalties. It also refocused attention as never before on the startling interpenetration of law and politics in contemporary Egypt.

Law and Politics, Entwined

No one leafing through an Egyptian newspaper from the 1980s onward can help but notice the ubiquity of judicial mediation, in social matters from marriage to religious conversion, in policy matters from economics to education and health, and in sundry other matters from labor conditions to political association and management of elections. That much is already remarkable. What is more noteworthy still is that judges in Egypt exert their influence in two distinct ways—through their decisions, especially administrative and constitutional court rulings with a direct bearing on government interests, but also through the judges’ professional association, the Judges’ Club, established in 1939. Since 1968 the Club has been the theater of intense factional struggles between judges with close ties to the executive and jurists seeking maximal autonomy from the imperial presidency. [1]

Driving judicial politics are the endless laws and ordinances pouring out of Egypt’s hyper-regulatory state. Given the ambiguity inherent in law, a whole world of interaction emerged where citizens brought complaints against arbitrary regulations, lawyers translated them into legal arguments, judges interpreted the laws, legal scholars explained the rulings and journalists recorded the disputatious goings-on in Egypt’s teeming courtrooms. Over time, the terrain of law came to overlap heavily with the terrain of politics, practically ensuring that political tussles wound up in the courts, and that legal battles had political consequences.

Despite its rarefied name, Egypt’s Majlis al-Dawla or administrative court system is at the heart of public politics. Like their French models, these courts are institutions “before which the humblest citizen could arraign and call to account the all-powerful and interfering state.” [2] Tasked with finding facts and establishing the right in disputes between individuals and government officials, Egyptian administrative judges developed a strong professional ethos as monitors of the arbitrary exercise of bureaucratic power. Since 1946, they have produced a body of case law upholding citizens’ rights and liberties, while extending judicial control of the bureaucracy by stretching the definition of “public official” to include the president and all of his ministers, the head of al-Azhar, the mosque-university at the apex of Islamic jurisprudence, and the Coptic patriarch.

Administrative courts also have jurisdiction over election management by the Ministry of Interior. Challenges to election outcomes, meanwhile, fall in the purview of the top appeals court, the Court of Cassation. The president’s party in Egypt thus contends not only with political opponents in elections but also with two sets of unpredictable judges. In the 2005 parliamentary elections, administrative courts sided with litigating NGOs and ordered the installation of closed-circuit television cameras inside counting stations, a major step that ensured that every vote cast was a vote counted. When it was established in 1979, the Supreme Constitutional Court (SCC) added another layer of judicial scrutiny. Indeed, the SCC’s rise to national prominence was partly due to its striking-down of election laws in 1986 and 1990 and its momentous decision in 2000 requiring complete judicial supervision of elections.

Yet judicial independence and assertiveness would have been a dead letter if not for the energetic legal mobilization of Egypt’s citizens. As law-and-society scholars point out, courts are reactive institutions by design: They can only rule on the initiatives of litigants and lawyers. In a pattern that appears time and again in Egyptian political history, regular citizens and disgruntled civil servants made use of legal institutions, [3] activating the courts to weigh in on major controversies. Since the 1990s an unstoppable flow of litigation has made its way to the administrative and constitutional courts, prompting judges to examine a wide range of official acts. When judges began to rule against the government on high-profile political cases, journalists started tracking administrative litigation as a recurring David-and-Goliath drama with judges as noble upholders of rights against the government’s copious wrongs.

The Judicialization of Politics Under Mubarak

Even judges serving on specially convened “state security” tribunals ruled against government interests. In 1987, a state security court acquitted striking train conductors, agreeing with their prominent cause lawyer Ahmad Nabil al-Hilali that strikes were a right guaranteed by Egypt’s 1982 ratification of the International Covenant on Economic, Social and Cultural Rights. In 1993, another state security court acquitted all 27 defendants in the assassination of the speaker of Parliament, Rif‘at al-Mahgoub, rejecting confessions obtained through torture. It was at this juncture that lawyers, reporters and scholars in Egypt and abroad began to pay attention to the relative independence of some judges. As Nathan Brown observes, it was these unwelcome rulings by exceptional tribunals that prompted the government to resort to “the most reliable exceptional court system—military courts.” [4]

A case from the tail end of 1992 shows how Egypt’s various courts simultaneously enable and constrain both rulers and citizens. In response to the armed Islamist insurgency in Upper Egypt, the government launched a campaign of police violence and legal repression that would extend to every facet of associational life by the end of the 1990s. To avoid the unpredictability of state security courts, Husni Mubarak began referring Islamist militants to military tribunals where judges are military officers and there is no right of appeal. In one such case, defendants’ lawyers contested the decision before the administrative courts, arguing that the president’s referral of civilians to military tribunals violated the constitution’s guarantee of a fair trial.

The case landed in the docket of Tariq al-Bishri, a senior judge with a side career as an accomplished historian of contemporary Egypt. In December 1992, Bishri struck down the president’s decree, a decision that leftist law professor Husam ‘Isa called “one of the most significant rulings in the history of Majlis al-Dawla.” [5] Not about to swallow this challenge to presidential prerogatives, the government activated the SCC’s interpretation function, asking it for a binding interpretation of the 1966 Code of Military Justice at issue. A month later in January 1993, the SCC returned the broadest interpretation of presidential power in the law, enabling the government to try hundreds of Islamist militants before military tribunals, and in 1995, 1996 and 1999, to block dozens of Muslim Brothers from running in parliamentary elections or forming the “soft Islamist” Wasat party.

As the government produced ever more intrusive statutes in the 1990s and 2000s, more Egyptians turned to the courts to contest arbitrary and unfair decrees. Between 1995 and 2008, the caseload of the administrative courts increased sixfold from 10,709 cases filed to 65,546. [6] Broadly, the cases can be broken down into three types: suits by individuals on parochial matters that nevertheless carry wide-ranging import, such as a wife’s right to travel without her husband’s permission; suits brought by groups of workers, residents or farmers collectively injured by some government act; and impact litigation by cause lawyers and opposition groups intent on publicizing decisions that the government labored mightily to keep out of the public eye. [7] A liberalized print and satellite media market diffused information about the tactic of administrative litigation. Newspapers published photos of litigants as they massed on the new courthouse steps chanting slogans against the government, and rows of television cameras filled courtrooms on days when judges announced their decisions in what came to be called “public opinion cases” (qadaya ra’y ‘amm).

By the mid-2000s, consumers were contesting the government’s unilateral privatization of garbage collection; workers were resisting their wrongful termination from the privatizing public sector; and Baha’is and reconverting Copts were suing civil servants for refusing to record their confessions on national identity cards. The last three years of the Mubarak regime saw a flurry of anti-government rulings on core features of how power holders conducted business. Courts ordered the removal of police from university campuses and the imposition of a national minimum wage. They asserted the right of citizens to bring cellular phones into police stations, while invalidating sales of public land to a key Mubarak crony, the military’s expulsion of residents of a mid-Nile island and the signing of a 15-year contract to export natural gas to Israel. In a year-in-review piece, one of the top two independent dailies enthused, “Majlis al-Dawla: The Hero That Ruled Egypt in 2010.” [8]

Naturally, reporters hyped rulings that rebuked the government, without inspecting too closely the substance of abstruse judicial arguments. The equivocal meaning of most rulings was glossed over in favor of the newsworthy bottom line—whether the verdict upheld or challenged a government decision. For instance, despite the media’s gleeful framing of it as a slap in Mubarak’s face, the 2010 Supreme Administrative Court ruling on the export of gas to Israel simultaneously upheld foreign policy as “an act of sovereignty” (‘amal al-siyada), not subject to judicial review, and underscored the public’s right to monitor the government’s use of natural resources. Such “tactical balancing” between deference to the executive and accommodating public opinion meant that court rulings alternated between challenging and endorsing government power. [9] Even though court rulings rarely laid controversy on hot-button issues to rest, the attunement of judges to multiple audiences and the unpredictability of their decisions were opportunities that citizens and activists seized, over time turning litigation into a form of political voice.

The SCC performed its own balancing act in the 1990s and 2000s. As Tamir Moustafa has shown, the constitutional court enthusiastically supported the government’s economic restructuring and rollback of Nasser-era controls, while leveraging that support to produce rulings protecting political and associational rights. But it stopped short of challenging the use of military tribunals and other high-stakes tactics of the state. Still, even this accommodationist formula proved intolerable to Mubarak, especially after the 2000 election supervision ruling. The president preempted the SCC’s norm of judicial self-selection and packed the body with pliable judges from outside the court, expanding the number of sitting justices by 50 percent. [10] To deflect criticism, Mubarak saw to it that one of the outsiders was the country’s first female judge, the prominent anti-Islamist attorney Tahani al-Gibali. In 2009, Mubarak made an even bolder move, appointing as chief justice one Farouq Sultan, a primary court judge who had no background in constitutional adjudication, having served on military and state security courts. Yet instead of reducing the court’s political influence, packing it with loyalist jurists would only deepen what Moustafa aptly called “the judicialization of Egyptian politics” post-Mubarak.

Judges Fill the Streets

It is not unusual for political struggles in democracies and non-democracies alike to be amplified by court decisions. What is unusual is to see judges actively lobbying and forming tacit alliances with social groups, while other judges cleave to the government. That is what happened over the course of 2005-2009 in one of the most dramatic political episodes of the late Mubarak era. The story begins in July 2000 with the SCC ruling requiring full judicial supervision of elections. The ruling’s unintended effect was to render the government’s electoral skullduggery more visible. Tried-and-true methods of administrative fraud inside polling stations gave way to an economy of electoral violence outside stations. Police blocked off streets leading to polling stations, and ruling-party candidates and their hired goons (baltagiyya) attacked opposition voters, in full view of the domestic and foreign press. Judges’ firsthand experience scuffling with police or helplessly watching as humble voters were attacked jolted some of them into action. [11]

In 2002, judges’ disgust with government rigging congealed into an electoral upset. In the internal elections of the Judges’ Club, whose membership includes all judges and prosecutors except for administrative and constitutional jurists, a slate of 15 candidates led by Zakariyya ‘Abd al-‘Aziz won the board and chairmanship, overturning a decade of control by a pro-government faction. Calling themselves Tayyar al-Istiqlal (the Independence Current), in 2005-2006 the ‘Abd al-‘Aziz camp organized a high-profile, confrontational campaign against election rigging and for a new law guaranteeing judicial autonomy from the executive in the four core areas—budgets, promotions, secondments and disciplinary procedures—where the government had long meddled to punish or coopt judges. Capitalizing on the singular opportunity of the year 2005, with its three elections (for Parliament and president, preceded by a constitutional referendum), the Club’s leadership disseminated methodical reports on the conduct of elections that embarrassed the Mubarak regime at a moment of intense international scrutiny.

In a miscalculation, in the spring of 2006 the government moved to silence the ‘Abd al-‘Aziz faction by singling out for censure two of its most prominent members, Mahmoud Makki and Hisham Bastawisi, accusing them of unprofessional engagement in politics by speaking to the media about election rigging. In response, judges audaciously borrowed the protest tactics of Egypt’s workers and political opposition, holding several silent street vigils and a month-long sit-in at the Club headquarters in downtown Cairo in solidarity with Makki and Bastawisi. To solemnize their street action, judges donned their official red and green sashes over their starched suits, as cameras clicked and whirred and an American newspaper editorial gushed, “All rise for the judges of Egypt.” [12] The government suddenly found itself faced with the most formidable, media-savvy opposition alliance of Mubarak’s tenure. Rallying around the dissident judges were pro-democracy movements such as Kifaya and its youth offshoots, the 100-plus Muslim Brothers and other opposition deputies elected in 2005, liberal politician Ayman Nour and his following, feminist activists, law professors, public intellectuals and cause lawyers.

To be sure, opposition fronts were not new, but the presence of elite judicial figures in their midst was. Of this high moment in the politics of dissent, the late political scientist Mohamed Sayed Said wrote, “The conflict centers on the principle of the independence of society—all of its institutions, not only the judiciary—from the state. Authoritarianism does not spare any social institutions but works to control them all through monitoring and stringent subordination to security.” [13]

The judicial dissidents prompted both fence-sitting and unabashedly pro-government judges to coalesce into a self-conscious bloc wielding arguments of judicial distaste at turning the Club into a salon for public debate. Even if judges supported the ‘Abd al-‘Aziz faction’s demands, they were leery of its bold tactics and ambivalent about tethering the cause of judicial independence to the wider pro-democracy surge. “These demonstrations are alien to the judiciary. I can’t imagine how a judge can accept this,” Rif‘at al-Sayyid, head of the Cairo Court of Appeals, told a government newspaper. “The number of judges in Egypt is around 13,000, and if at most a couple of hundred demonstrate, we can’t assume that these 200 are all the judges.” [14] Fearful at the increasing density and growing appeal of opposition politics, the government moved forcefully to capitalize on the fissures in the judiciary.

Enter Ahmad al-Zind, a pugnacious, unapologetically pro-government judge who emerged to take on the Independence Trend. The showdown came in February 2009, in closely watched Judges’ Club elections that saw the government put all its resources behind Zind and his slate, running on a platform of “rectifying the Club’s relationship to the state.” Competing against him was Hisham Geneina, ‘Abd al-‘Aziz’s aide-de-camp and a key member of the Independence Trend. Zind won the chairmanship with 52 percent of the vote to Geneina’s 44 percent, and his slate secured all but four of the Club’s 14-seat board. [15] Regaining the Club was a central plank in the government’s counter-thrust of repression during the last three years of Mubarak’s rule, to prepare the ground for parliamentary elections in 2010 and presidential elections in 2011. The former were blatantly fixed and the latter never took place, overtaken by the biggest accident in Egyptian political history.

Law, Courts and Judges in Revolution

The pervasive legalism of Egyptian politics did not vanish after Mubarak’s overthrow, but was deepened and elaborated. The revolution did not smash the state in one fell swoop, as stylized notions of revolution imagine; the Egyptian bureaucratic leviathan continued to operate, under the new management of Mubarak’s generals. One of the first acts of the Supreme Council of the Armed Forces (SCAF), the coterie of ruling generals, was to churn out decrees to protect themselves and stem the tide of mass mobilization. A new law criminalized workers’ strikes; a new chapter was added to the penal code criminalizing “spreading terror and threatening law and order”; and the code of military justice was amended to give military tribunals sole jurisdiction over officers accused of making ill-gotten gains. At the same time, nearly 12,000 civilians, including children, were brought before military tribunals, a rate that makes Mubarak’s use of these exceptional courts appear restrained. [16]

Courts and judges were woven into the fabric of revolutionary politics, and individual judges became as familiar in national political life as SCAF generals, celebrity youth activists and martyrs’ families. Muhammad Fu’ad Gadallah, a relatively young administrative court judge, was embraced by Tahrir Square revolutionaries as their legal guru, and later plucked by President Muhammad Mursi to be a member of his team of non-Muslim Brother advisers. Muhammad Ahmad ‘Atiya, a senior administrative court judge esteemed by cause lawyers for his jurisprudence, chaired the committee overseeing the March 2011 constitutional referendum and then served as minister in the first post-Mubarak cabinet.

Administrative courts were everywhere in those heady first months after Mubarak’s ouster, in a sense continuing their resounding rulings from 2008-2010. Prodded by litigants capitalizing on the sudden expansion of political possibilities, courts legalized the Wasat party, ending its 15-year battle for recognition; rolled back privatization of three textile companies and the iconic Omar Effendi department store; dissolved both Mubarak’s National Democratic Party (NDP) and the 1,790 flagrantly rigged municipal councils; and fined Mubarak and his ministers Ahmad Nazif and Habib al-‘Adli 540 million pounds for blocking Internet and cellular phone service for five days during the revolution. [17] When jubilation waned and public opinion soured on the military rulers, citizens sued the SCAF and obtained court rulings to establish a special pension for citizens injured during the revolution; assert expatriate Egyptians’ right to vote in elections; and put an immediate stop to the detention and torture of civilians in military prisons and the violation of women detainees under the rubric of “virginity tests.” As soon as the last verdict was read aloud, supporters of plaintiff Samira Ibrahim chanted, “Down, down with military rule!” and “O judges! O judges! We have you after God!” [18]
   
Peeking into the details of administrative litigation from this period reveals how these courts became a venue both for tenacious old elites and for rising forces, rather than an uncontested space of revolutionary vindication. The plaintiffs in the NDP dissolution case were Mustafa Bakri and Ahmad Fadali, two long-time Mubarak sycophants who sought to disavow their former patron. The judge, Magdi al-‘Agati, had a reputation among legal specialists as a pro-government jurist who tended to uphold the executive’s lawmaking prerogatives. He is now Sisi’s top legal adviser, holding the post of minister of state for parliamentary and legal affairs. By contrast, a rights NGO brought the Internet case and the judge, Hamdi Yasin ‘Ukasha, is a left-leaning jurist whose ruling is an amalgam of legal critique of the 2003 communications law; informative reconstruction of the Mubarak regime’s past efforts at communications blockage (notably during the April 6, 2008 nationwide call for a general strike); and hagiography of the revolution’s first 18 days.
   
Judicial politics took a more dramatic turn after the parliamentary contests of 2011-2012, the first free general election since 1924. Combined, Muslim Brothers and salafis held nearly three quarters of parliamentary seats, but only the former would soon embark on a course of protracted brinkmanship with the courts. It was at this juncture that the judicialization of revolutionary politics began to entail extremely high stakes. “Unlike any other similar upheaval in the last two centuries,” Ellis Goldberg remarks, “the Egyptian revolution was one in which legality and the interpretive decisions of the country’s highest judges played a dominant role in its outcome.” [19]

In the spring of 2012, at a peak of public frustration with the parliamentary Brothers over their ham-handed election of a constituent assembly, an administrative court certified the ambient mood, invalidating the 100-member body on the grounds that it was unrepresentative and illegitimately included some of Parliament’s own members. At the same time, the presidential election campaign was in full swing, supervised by a commission headed by SCC Chief Justice Farouq Sultan. He and other commissioners had rejected the Brothers’ first choice of presidential candidate, Khayrat al-Shatir, forcing them to put forward their number two, Muhammad Mursi. Sensing personal animosity from the SCC judges, Brother deputies tabled a bill revising the SCC law, among other things seeking to roll back Mubarak’s expansion of the bench. Sound in theory, the maneuver clearly targeted specific judges, namely Sultan and the outspoken Tahani al-Gibali, an advocate of military guardianship and weighted voting. In a thoughtful postmortem of Parliament’s first 100 days, Tariq al-Bishri criticized the Brothers for bungling their core task of electing a constitution-drafting body while picking improper battles like the SCC law. In uncharacteristically angry language, he rebuked them for commandeering the maiden post-revolutionary legislature for partisan ends. “As a former judge, I cry out against this conduct and call on others to do the same.” [20]

On June 14, the SCC issued a portentous ruling. In an unheard-of sequence that transpired over barely half a day, judges heard arguments, issued their decision and had it printed in the official gazette, invalidating the election law by which Parliament was elected. The SCAF wasted no time in using the SCC decision to dissolve the first-ever Egyptian legislature elected by universal suffrage, while transferring to themselves legislative powers and limiting presidential powers. That meant that when he was declared the narrow winner of the presidential contest two weeks later, Muhammad Mursi assumed office without an elected legislature to counterbalance the formidable unelected military, bureaucratic and judicial chunks of the state. To underscore his place, SCC justices insisted that Mursi take the oath of office before them; in a cramped room, he awkwardly faced the robed justices, who looked more like disciplinarian headmasters than magisterial jurists. Mursi then insisted on taking an unofficial second oath before jubilant Islamist crowds in Tahrir Square, where one delirious man held up an ornate, gilded armchair with a handmade sign—“seat of the new Egyptian presidency.”

With Mursi as president, the intrajudicial factionalism involving dissidents and pro-government judges from 2006-2009 was reprised, but the principals had changed positions. The top figures of the Independence Current were now in the Mursi government. Brothers Mahmoud and Ahmad Makki were vice president and minister of justice; Husam al-Ghiryani was elected chairman of the reelected constitution-writing assembly. And the most consequential appointment of all, though no one guessed it at the time, was Hisham Geneina as head of the Central Auditing Agency. Ahmad al-Zind, who had defeated Geneina in the 2009 Judges’ Club election, leveraged his chairmanship to turn the Club into a locus of anti-Islamist and anti-presidential agitation. If, before the revolution, the Club was an outpost of dissidence against a powerful imperial presidency, now it had turned into a center of ideological resistance to a precarious elected presidency. Zind presided over a raucous general assembly meeting on November 8 where he threatened to have judges boycott supervising the impending constitutional referendum, in protest at the sections on the judiciary in the constitutional draft.

When Mursi issued his fateful November 22 decree shielding the constituent assembly, Parliament’s upper house and his own decisions from judicial oversight, he was acting out of a palpable sense of encirclement by court decisions and Zind-allied judges. Post-decree, and despite the fact that Mursi retreated from it on December 9 after a surge of intense opposition, it was but a short step for his opponents to cohere under the banner that he was a dictator in the mold of Mubarak. Mursi’s fears of a coordinated effort by displaced old elites and anti-Islamist forces to torpedo fragile elected institutions were not unfounded. His mistake was in underestimating how ingrained judicial review had become in Egyptian political culture, a bitter irony given the Muslim Brothers’ contribution to this culture with their enthusiastic resort to the courts to redress government abuses under Mubarak.

It mattered little to many Egyptians that, underneath the fight between Islamists and non-Islamists, what was at stake was bolstering the fledgling elected parts of the state to counterbalance the mighty unelected enclaves. It was hardly that the public hated democratic control; it was that the Islamists would not or could not get beyond their personal injuries to communicate the broader urgency. And there was also the legacy of deep public esteem for judges, a constructed contemporary political tradition that the Islamists had helped to build but that ultimately catalyzed their demise. When Islamist crowds encircled the SCC on December 2, the day it was set to review the procedures under which the constituent assembly and the upper house of Parliament were elected, what most people saw was thuggish muscle flexing, not a defense of the electoral principle in the construction of the Egyptian state.

Judges, Courts and the Awe-Producing State

In the time of Sisi, as outlandish rulings and offensive public statements proliferate, public veneration of judges is no longer the common sense. When young activist Sana’ Sayf flatly told an investigating judge that she would not participate in the charade of answering his questions because he lacked any independence from the government, she was expressing what many now believe—that judges are part of the problem, not the solution. Sayf is paying for her honesty by serving a six-month jail sentence, after a court decided that she was guilty of insulting a government employee.

Those judges who have always felt that judges are part of the problem are being systematically persecuted. Dozens have been forcibly retired by tendentious disciplinary boards, including the past leader of the Independence Trend, Zakariyya ‘Abd al-‘Aziz. The disciplinary tribunal that dismissed him insisted that he incited protesters to storm State Security headquarters on March 5, 2011, relying solely on the testimonies of military generals and complaints from Zind’s faction of judges. ‘Abd al-‘Aziz’s fellow traveler, the elderly Alexandrian judge Mahmoud al-Khudayri, is now serving a three-year prison sentence. The sentencing court said that he and confederates “controlled” Tahrir Square between January 28 and February 11, 2011, and tortured people using the offices of a tourism company adjacent to the square. Judges ‘Asim ‘Abd al-Gabbar and Hisham Ra’uf, along with human rights lawyer Nigad al-Bura‘i, are being investigated for drafting and sending to the presidency an anti-torture bill bringing Egypt’s inadequate law into line with the UN Convention Against Torture.

Sisi’s government found it much harder to deal with one particular judicial dissident. Ironically, removing Hisham Geneina proved far trickier than ousting the president who appointed him. As chief government auditor, Geneina activated his oversight powers, boldly fingering the police, judicial sector and intelligence agencies as key sites of high-level corruption. The circuitous path to oust him began with a 2015 law granting Sisi the right to dismiss heads of independent regulatory agencies, including the Central Bank. When a reporter misquoted Geneina as saying that corruption cost the treasury $76 billion in 2015 (the correct time frame is 2012-2015), the government acted quickly. A Sisi-appointed fact-finding commission found Geneina to have exaggerated the figure and claimed that he misinformed the public. Sisi sacked Geneina in March, prosecutors accused him of “gathering documents” to misrepresent corruption rates, and he stood trial for “disseminating false news that disturbs the public peace.” In late July he was sentenced to a suspended year in jail and a $2,252 fine.

In a sign that administrative litigation has become a fixture of Egyptian politics regardless of regime type, citizens are still resorting to Majlis al-Dawla to contest government decrees, and the courts continue to alternate between challenging and upholding executive power. Two high-profile cases in 2016 stand out. In February, the court sided with the government on forced disappearances, ruling that victims’ families could not prove that their sons were being secretly detained by the Interior and Defense Ministries. In June, the court sided with human rights lawyers contesting the executive’s “transfer” of Red Sea islands Tiran and Sanafir to Saudi Arabia, instead asserting Egyptian sovereignty over the islands. The two decisions were handed down by the same three-judge panel headed by Judge Yahya al-Dakrouri, an establishment figure with a mixed record of jurisprudence. They can be appealed before the Supreme Administrative Court.

It is tempting to dismiss pro-government judges as lackeys of military rulers, automatons who move only at the behest of the de facto center of power. The reality is far more troubling. Many judges are active, self-willed architects of an expanded regime of legal exception and legal repression. Before joining the cabinet, Magdi al-‘Agati was head of the administrative courts’ legislation department, reviewing all bills coming from the executive, where he green-lighted a new counterterrorism law with marginal revisions. Along with a “terrorist entities” law and another expansion of military courts’ jurisdiction, these laws punish a dozen different acts with the death penalty; loosen judicial oversight of prosecutors’ detention orders; and fine anyone who publishes news about counterterrorism operations that contradicts official statements. [21] Above all, the laws stretch the definition of terrorism to take in acts of civil disobedience such as blocking roads and staging protracted sit-ins, forms of direct action that were mainstays of popular politics during the Mubarak years and that powered the revolution’s first 18 days and many months thereafter.

There have always been judges who see their role as applying, not checking, punitive laws. The zeal with which these judges and prosecutors are expanding the infrastructure of legal repression and resuscitating Mubarak’s paradigm of permanent emergency suggests that political dissidence is not their only target. A broader pacification of the population seems to be the goal, to punish the rampant disobedience and disrespect for authority that ruling elites remember as the revolution. Commenting on an avalanche of summary expulsions of students from universities, an administrative court judge said, “The reasons behind the expulsions [nowadays] weren’t there during Mubarak’s time. There wasn’t a revolution during Mubarak’s time.” [22]

The current moment is a high-water mark for true believers in the doctrine of untrammeled Egyptian state authority. This idea conjures a unified state of officials exercising benevolent but stern authority over society, a society minutely regulated for the maximum realization of public order (al-nizam al-‘amm). The notion of al-nizam al-‘amm so foundational to Egyptian laws and jurisprudence refers to well-policed streets, to be sure, but an entire range of public comportment besides, from dress to vagrancy to public assembly to visible religious markers to election queues. Ellis Goldberg and Hind Ahmed Zaki [23] noticed early on the recrudescence of this idea in 2011, at precisely the moment when police regimentation of the population broke down and the people in all their diversity and division chaotically and creatively reclaimed the streets.

Upholders of haybat al-dawla, the state’s awe-inspiring prestige, are now triumphant in the militarized presidency, the loyalist legislature, strata of the judiciary and prosecution, universities and media, and broad segments of the general public. Advocates of the rival principle of statecraft, the separation of powers, what might be called the organized suspicion by judges, legislators and citizens of the executive’s lawmaking powers, are encircled and silenced. In the Mubarak years, this constellation of jurists, lawyers, activists, regular citizens, journalists and intellectuals gave concrete form to the conception that the state is not a disciplining guardian, but an organization capable of being made to work for and not against the population. The seesaw battle between state reformers and state fetishists, made clear like a windowpane by the revolution, will be a keynote of Egyptian politics for many years to come.

Endnotes

[1] On the 1968-1969 “massacre of the judiciary” by Gamal Abdel Nasser, see Mumtaz Nassar, Ma‘rakat al-‘Adala fi Misr [The Justice Battle in Egypt] (Cairo: Dar al-Shurouq, 1974) and Nathan Brown, The Rule of Law In the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997).
[2] L. Neville Brown and John S. Bell, French Administrative Law, fifth ed. (London: Oxford University Press, 1998), p. 50.
[3] Enid Hill, Mahkama! Studies in the Egyptian Legal System (London: Ithaca Press, 1979).
[4] Brown, The Rule of Law In the Arab World, p. 114.
[5] Ibrahim al-Bayoumi Ghanim, ed., Tariq al-Bishri: al-Qadi al-Mufakkir [Tariq Al Bishri: The Thinker-Judge] (Cairo: Dar al-Shurouq, 1999), p. 31.
[6] Figures made available to the author in 2010 by judge ‘Adil Farghali, then president of the Court of the Administrative Judiciary.
[7] One Egyptian NGO has adopted the American term “strategic litigation” and produced a booklet collating favorable court rulings it has obtained on behalf of workers and others. Khalid ‘Ali and ‘Ala’ ‘Abd al-Tawwab, Bi-Ism al-Sha‘b: Abraz Ahkam al-Taqadi al-Istratiji lil-Markaz al-Misri [In The Name of the People: The Most Prominent Rulings from the Center’s Strategic Litigation] (Cairo: Egyptian Center for Economic and Social Rights, 2014).
[8] Al-Shurouq, December 31, 2010.
[9] Diana Kapiszewski, “Tactical Balancing: High Court Decision Making on Politically Crucial Cases,” Law & Society Review 45/2 (June 2011). For how an Egyptian administrative court navigated between freedom of religious belief and restriction of religious practice, see Saba Mahmood and Peter Danchin, “Immunity or Regulation? Antinomies of Religious Freedom,” South Atlantic Quarterly 113/1 (Winter 2014).
[10] Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007), p. 199.
[11] Personal testimonies of judges who witnessed government electoral violence are in the annual edition of the Judges’ Club journal al-Quda (September 2003-August 2004).
[12] Christian Science Monitor, May 16, 2006.
[13] Mohamed Sayed Said, “A Political Analysis of the Egyptian Judges’ Revolt,” in Nathalie Bernard-Maugiron, ed., Judges and Political Reform in Egypt (Cairo: American University in Cairo Press, 2008).
[14] Ruz al-Yusuf, December 11, 2006.
[15] Turnout was 4,673 judges, with Zind securing 2,421 votes and Geneina 2,037. See more here.
[16] Hesham Sallam, “Striking Back at Egyptian Workers,” Middle East Report 259 (Summer 2011); Human Rights Watch, “Egypt: Retry or Free 12,000 After Unfair Military Trials,” September 10, 2011.
[17] In April 2011, a court decision ordering the removal of the Mubarak family’s name from all public institutions was handed down by the Cairo Court of Urgent Matters and later suspended by its appeals court. It was referred to the administrative courts, which have yet to issue a decision.
[18] Al-Badil, December 27, 2011.
[19] Ellis Goldberg, “Courts and Police in Revolution” in Emile Hokayem and Hebatalla Taha, eds., Egypt After the Spring: Revolt and Reaction (London: Routledge, 2016).
[20] Al-Shurouq, May 11, 2012.
[21] For details, see Human Rights Watch, “Egypt: New Parliament Should Fix Abusive Laws,” January 12, 2016.
[22] Reuters, June 1, 2016.
[23] Ellis Goldberg and Hind Ahmed Zaki, “Sovereign Respect and the Rule of Law in Egypt,” Yearbook of Islamic and Middle Eastern Law 16 (2010-2011).

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