Two feuds escalated this week. One reached a preliminary conclusion, the other a concerning jolt. It may not be proper to pray mend the fences, but rather in wisdom to put all things right.
After months of debate and clear judicial opposition, the president signed a parliament-ratified bill to select the chief judge of major courts from three nominations. Viewed as anti-constitutional interference and a blow to seniority, it is nonetheless law, pending further developments.
After months of tense but nonmilitant local opposition, the Islamic State struck against a major tribe in Sinai. Recriminations followed, and the fight is threatening to move beyond the licensed violence of army and police and involve the well-armed Bedouins.
God, politics is often contentious. Ensure efficiency in policy. Define limitations of power. Where there is manipulation, cause it to cease. Where there is exaggeration, cause it to settle.
In the effort to strengthen both state and society, give wisdom. Give humility.
God, violence is often compounding. Empty the Sinai of terrorism. Rebuild the region in hope. Where there is insult, curb retribution. Where there is injury, increase resolve.
In the effort to defeat the Islamic State, give wisdom. Give clarity.
All men are brothers, God, and it is not right to feud. But perhaps a fight is sometimes necessary. Settle scores quickly, and justly. Limit escalation, mend fences.
Not one conviction was levied against those who killed protestors during the January 25 revolution. This fact is still not yet fully explained, but raised questions of whether or not Egypt’s judicial system functions independently of the powers-that-be.
These questions continue today. But this week a few Muslim Brotherhood members were found innocent of certain minor charges. More significantly, an officer was given a ten year sentence when 37 detainees from the pro-Morsi sit-ins were killed inside a police van. It may be that the law is blind.
The coming months will demonstrate. The president referred the fact-finding report from the sit-in dispersal to the judiciary, with its accusations of ‘excess force’. More serious trials against Muslim Brotherhood members continue. Will they judge impartially?
God, you know where justice lies; men make at best approximations. But may those of the judiciary be men of conscience. May they weigh the evidence and act accordingly. May they remember they hold the life of fellow human beings in their hands.
For the weight of accusation is against them, no matter how many are upright. The Judge’s Club has been called financially corrupt by the nation’s top auditor. The onus of revolutionary killings lingers. And while some detained sit in prison for months without trial, others are convicted straightaway. Many view judges as politicized, at the least.
What can be prayed for, God, but the above? The judiciary is but one of many state institutions that is still in flux since the revolution. Purge it from all impropriety. Make transparent its proceedings. Let the people trust its arbitration.
Through them or otherwise, God, bring justice to Egypt. Justice for victims of these transitional years. Justice for victims of the old regime. Justice against all who have manipulated the system for their own benefit.
Through them or otherwise, God, but may it be through them. May Egypt, and its judiciary, be fully independent.
The Egyptian transition following the 2011 January 25th revolution has been fraught with controversy; among many has been the reform of the judiciary system. While the 1971 constitution guaranteed an independent judiciary, the following year President Sadat presided over the passing of law 46 which moved many judicial proceedings – including appointments, transfers, and inspections – to the executive branch through oversight of the Ministry of Justice. President Mubarak continued use of these privileges to ensure a regime-friendly judiciary.
Though the reform of the judiciary was not chief among the primary demands of the revolution, many reformist judges had long been seeking to expose these executive abuses. The tensions came to the fore during the transitional period, as the judiciary became a battleground between the revolutionary popular will and what was interpreted as pro-regime rulings from the court.
Though published recently, this article was written September of last year after Mursi assumed the presidency, but before his full-on clashes with the judiciary. In this light the following recommendations are noteworthy, as many anti-Islamists look to the courts to curb presidential power and prerogative:
The first guarantee [of judicial independence] is for security of tenure. Judges must understand their position is safe, not subject to removal for rulings issued against the government. Second, the judge and court system as a whole must enjoy financial security. All necessary resources must be made available for the smooth functioning of justice. Third, there must be sufficient guarantees for individuals in the justice system. A culture of rights ensures the public demand for judicial independence, making it more difficult for the government to infringe upon it.
Unfortunately, Binnie noted, the current Egyptian arrangement does not lend itself to judicial independence. First, the body tasked with inspecting judges is within the executive Ministry of Justice. This allows the executive branch to offer rewards to compliant judges – such as promotions or post-retirement ambassadorships – while penalizing judges who buck the system by assigning them judgeships in remote locations.
Second, there is a threat to the independence of the judiciary if there is not sufficient public confidence in the system. Binnie noted that even if independence is achieved, the courts can operate as an ‘old boy’s network’, appointing from their own circles rather than drawing from the diversity of society. The presence of women is particularly helpful, he noted, but a comment from the audience helped demonstrate his point. Egypt boasts only 42 women judges, but 39 of these are the daughters of established judges.
Third, the presence of a parallel court system undermines judicial independence. Even the best system will fail, Binnie noted, if the government can simply bypass it. With separate jurisdictions for military, security, and emergency courts – each able to try civilians – Egyptian justice suffers. Binnie noted that some drafts of the coming constitution do not sufficient guarantee rights during periods of national emergency, threatening to perpetuate the current system into the post-revolutionary era.
The constitution limited the use of military courts, but it did not eliminate their jurisdiction of civilians. Still, this has not been a practical issue since the end of direct military rule. Noting the importance of public confidence, it is at an all time low. Islamists have none at all, while non-Islamist revolution supporters still see it as in service of the regime in concept, if in particularity the identity of the regime is still under contention. Meanwhile, courts across the country issue rulings that send advocates of human rights up in arms.
But consider these examples, the latter of which was held as a pro-revolution step only a few months ago. If implemented now it would cause shockwaves:
In Egypt, moving from an autocratic tradition, enshrinement in the constitution is necessary. This must be done in detail, lest the situation resemble Russia where vagueness in wording has allowed erosion of judicial independence. Experts expect it may take years to reverse Russia’s political culture of judges as servants of the executive branch.
A positive example could perhaps be taken from the experience of Bosnia. Political leaders took the decision to sack all judges, and then require them to reapply for their positions in competition with new applicants. In the end, 70% of judges were reinstated, but two significant results were produced. First, this measure resulted in a great sense of public confidence in the governing system. Second, the judges themselves ‘bought into’ the new program from the necessity of keeping their jobs. It also reset their orientation, as most judges everywhere, Lund believes, desire independence.
As with much of the state infrastructure, bold reforms are necessary, but political conditions do not permit the unity needed for orchestration. It is a shame polarization has reached such a point.
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