Judiciary Affairs Analysis January- September 2018

Throughout this year, from January to September, 17 reports have been released that focus on Egypt’s judicial affairs. The institutions that most closely monitored Egypt’s judicial affairs throughout the year include Human Rights Watch, The Carnegie Endowment for International Peace, and the Egyptian Institute for Studies, forming part of a total of 11 institutions. The conversation surrounding judicial affairs has shifted its focus a number of times this year, oscillating between the corruption within the judicial system itself, the perennial state of emergency law and the creation of new emergency laws, the court system under the Military, the death penalty and unjust conviction, cherry picked transitional justice, and critical examinations of the State Litigation Authority’s report.

Judges in Egypt have thrived under authoritarian regimes. (1) Given their long history of operation under authoritarian regimes, judges have a lot to lose from regime change. The Washington Institute pins this in its findings as the reason the judiciary was not welcoming to a regime change under the election of Mohamed Morsi. (2) Hostility toward the Morsi government was high. There were amid widespread fears of a purge. Even if individual judges were not purged and allowed to continue to hold their positions under a type of new regime, they would no longer enjoy the same privileges they had under the military. The source of the judiciary’s strength and its long institutional history would be broken. The Egyptian judiciary system if far from independent. (3)

“Given the position of Egyptian judges as incumbents—officeholders who derive their status from the existing regime—they are often inclined to make repressive decisions. Moreover, because Egyptian law has been shaped over decades by authoritarian rule, faithfully applying the law can mean issuing decisions that violate the rights of civil society.” – Washington Institute (4)

Egypt continues to be in a perennial state of emergency since 2013. With the creation of new emergency laws such as law 136 (2014) upholding the constitution and civil rights has lost value. Law 136 allows the regime to continuously violate the constitution while using national security as a facade. These laws were extended to 2016, and then again extended for another five years, to 2021. One of the constitutional violations of these laws is the formation of a different type of court system that allows for civilians to be tried before the military judiciary for non military crimes. (5)

Under Sisi’s military regime, there has come to be three kinds of courts in Egypt. The first type is ordinary courts. These courts represent the body of judicial authority, and their purpose is to implement common laws. However since the military coup much of the power these courts had has been rescinded in favor of the other two types of courts. The second type is military courts. These courts can try civilians who are accused of committing crimes against other civilian. It is based in accordance with Law 136 (2014) that was passed after the coup. The third type, is the emergency state-security courts. These courts exist under the state of emergency. These are the courts hold great authority and can try perpetrators for almost any crime. (6)

Emergency state security courts can be formed in any first instance court and/or court of appeal across Egypt. The president has the right to appoint all the judges of an emergency state-security court, and can add military officers to them.  (7) To add insult to injury, the verdicts of these courts cannot be appealed. The president or anyone in lieu has the power to refer any public law crimes to the emergency state-security courts. (8)

Furthermore on the creation of new emergency laws, Law 13 was passed in 2017 which changes how the mechanism for selecting heads of judicial bodies in Egypt. The law gives the Egyptian president the sole power, without approval or review from any other authority, to appoint the chief justice of the Court of Cassation (the Supreme Judiciary Council). (9)

Law 18 of 2018 is another law that not only violates civil rights, but benefits the regime economically, as the government can directly confiscate assets for the first time, rather than merely freeze them. (10) These laws set out to create a committee of judicial nature which then has the sole authority to take all measures related “to the enforcement of rulings deeming a group, organization or person an affiliate of a terrorist group”. In other words, this law allow for direct confiscation without going through the court system. (11)

Under the formation of these new laws, the Egyptian regime is now safeguarded against the judicial disputes that had been a threat to it in the past.

Another recurring issue brought forward by the think tanks is judicial system’s lack of fair trials and the verdicts issued by Egyptian courts. Egyptian courts continue to violate the Egyptian constitution by convicting civilians in mass trials, without evidence as a means to repress any type of dissent. In one case, 43 Egyptians and foreign NGO workers were convicted. This is not just an isolated event the NGO case is reflective of the courts’ willingness to enforce repressive laws based on the current Egyptian government’s wariness of civil society. The Obama Administration National Security Council spokesperson Caitlin Hayden issued a statement expressing concerns about what she described as “a politically motivated trial that undermined the protection of universal human rights” (12) Egyptian courts continue to use death penalty verdicts as a means to eliminate any means of criticism, while also serving as a scare tactic for those who may think of speaking up against the regime. Criminal courts have sentenced 260 defendants to death in 2017 for 81 cases, of whom 224 are in custody. (13)

The Justice System in Egypt continues to be undermined, where transitional justice for  Egyptians is cherry picked, only when in the interest of the state. Transitional justice, a way by which a country deals with human rights abuses that took place in a time of conflict has not been an area of concern for the Egyptian regime. It was not implemented after the revolution nor after the Rabaa Massacre of 2013. (14) Yet ironically, the regime is willing to grant amnesties to a designated cadre of high-ranking Egyptian military officers, “effectively co-opting and politicizing the concept of an amnesty—one of the most controversial mechanisms of transitional justice.” (15) This type of amnesty grants officers immunity from being prosecuted for violating human rights, fails to recognize previous crimes committed and does not provide victims with a space to achieve any form of justice. (16)

The Egyptian government’s way of responding to the ongoing attacks on it’s judicial system was to issue the State Litigation Authority’s report. This report has been the state’s defence mechanism against accusations aimed at the judiciary system in Egypt, namely those mentioned and denies that the rule of law in Egypt has been undermined. However, the Guernica Group an international initiative that brings together experienced litigators, investigators to bring perpetrators of international crimes and grave human rights violations to justice along with the Cordoba Foundation an independent strategic think-tank have very closely examined the report concluding that the Egyptian judiciary is anything but independent. (17) According to their findings, the State Litigation Authority’s report has been filled with propaganda. “It seeks to justify the fact that the protections provided by the Egyptian Constitution, domestic legislation and international law, are ignored to such an extent that the Egyptian legal system is now merely another tool of the State to silence opposition and further oppress a people whose democratic rights are already seriously curtailed.” (18)

Judicial affairs continues to be an area of struggle in Egypt today. As seen in the reports published, the judicial system is based on a structure of corruption and transitional justice has been turned around to favour the state. Egypt continues to be in perennial state of emergency along with ongoing implementations of new emergency laws. This has allowed for the formation of a court system that ironically violates the constitution. The regime continues to use unfair trials, convictions and the death penalty to silence dissent. and while the government has released the State’s Litigation Authority’s report in an attempt to deny all these accusations, the reports released by various think tanks throughout the course of the year have strongly proven otherwise.

(1), (2), (4), (5), (6), (12) https://www.me-policy.org/2018/01/30/civil-society-on-trial-in-egypt-revisiting-the-ngo-workers-case/

(3) https://www.me-policy.org/2018/05/04/a-new-hope-for-ngos-in-egypt/

(7), (8) https://www.me-policy.org/2018/02/02/the-state-of-emergency-in-egypt-an-exception-or-rule/

(9) https://www.me-policy.org/2018/01/16/the-battle-over-appointing-judges-in-egypt/

(10), (11) https://www.me-policy.org/2018/01/16/the-battle-over-appointing-judges-in-egypt/

(13) https://www.me-policy.org/2018/02/12/in-the-name-of-the-people-death-penalty-in-egypt-2017/

(14) https://www.me-policy.org/2018/08/13/egypt-no-justice-for-raba-victims-5-years-on/

(15), (16) https://www.me-policy.org/2018/07/18/egypts-authorities-co-opt-transitional-justice-in-new-draft-law/

(17), (18) https://www.me-policy.org/2018/08/02/egypt-courting-chaos-and-controversy/






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