Current events in Egypt represent an escalation in the conflict between a government intent on domesticating the judiciary, in order to expand the executive’s dominance in political life, and the judiciary’s attempts to ensure their independence and ability to act as a check on executive power. In recent years, the judiciary has become an important actor in efforts to maintain the separation between government branches. In June 2000, Egypt’s Supreme Constitutional Court passed a landmark ruling that all elections must be supervised by judges. Then, in 2003, a decision by the Court of Cassation (the Highest Appeals court) null-and-voided parliamentary electoral results for a high-ranking executive official. In response, the government has pursued a number of strategies to isolate and intimidate proponents of judicial independence.
The Court of Cassation’s president, who simultaneously represents the executive as the head of the presidential-appointed Supreme Judicial Council (SJC), has sent threatening letters to outspoken judges. The presidency is also implicated through appointments of known pro-executive judges to high positions throughout Egypt’s court system as well as a presidential decree that increased the retirement age of bench judges from 66 to 68 (against the will of the Egyptian Judges Club). More recently, the executive drafted a new judiciary law that is scheduled to be passed by parliament before the current session ends in June. The bill, which was not subject to any consultations with judges, is rumored to ignore the demands of the Egyptian Judges Club for greater independence and to further accelerate the process of the executive’s appropriation of the judiciary.
The source of the current protests is the attempt to dismiss two judges (Hisham al-Bastawisi and Mahmoud Mekky) who have publicly argued for the autonomy of the judiciary from the executive branch. The SJC has begun “competency” investigations into the two individuals on charges that they reported cases of election rigging in the country’s three most recent elections last year, spoke to the media about political affairs, and ‘disparaged’ the executive-affiliated SJC. Such investigations are unprecedented in Egyptian history. At least five more judges have been formally named and could be investigated in future cases. The response of Egyptian society and the international community is crucial in determining the fate of Egypt’s independent judges.
The executive has feigned all responsibility and refused to interfere in this matter by declaring that it is solely an internal judicial matter. This could not be further from the truth. Rather, these measures represent a culmination of the executive’s recent attempts to control the judiciary. What is at stake is the future autonomy of an already embattled judiciary to assert itself as a check to executive power and will. At the core of this struggle is the state’s attempt to nationalize the judiciary as its central legitimacy tool.
The Egyptian Judges Club has sought negotiation and compromise measures, which have all been rebuffed by the executive and led to an unavoidable showdown for control, power, and the future. The regime is determined, at seemingly any cost, to eliminate the independent judges from state ranks so that future governance – and an impending transition of presidential power – is unobstructed and declared legitimate by the judicial branch. This, in effect, has turned the situation into a zero-sum game in which the regime must increase the use of its repressive apparatus through detention and beatings of peaceful demonstrators, who are standing in solidarity with the judge’s demand for autonomy.
The two judges currently under investigation are scheduled to appear in front of the SJC-appointed disciplinary board in Cairo on Thursday 18th of May. The judges say they will appear before no such body until the security forces are removed from the streets and nearly 400 activists – from all political trends – that have been detained since 24 April – are released. Demonstrations, which have previously been met by severe repression and violence by the security services, are scheduled across the country. Yesterday, the Interior Ministry issued a statement banning “unlawful” protests, which is being understood as a threat of further escalation against demonstrators.
The interest of ordinary citizens in the judges is at unprecedented levels as the executive pursues its unprecedented measures against them. The judges – particularly those under investigation – have been catapulted into legendary hero status. The current events in Egypt are no mere crackdown on political parties, extra-parliamentary protest movements, or Islamist-leaning organizations – it is about the very nature of future governance.
A general protest, led by the judges, is scheduled for the 25th of May to mark the ongoing struggle between the executive and judiciary as well as to remember the one-year anniversary of the flawed referendum that amended the Egyptian constitution. These are occasions for those that care about the future of Egypt and the democratic rights of all to get involved.
Please distribute this document as widely as you can, particularly to relevant personalities around the world who work on Middle Eastern issues in government, academia, NGOs, the media and so on. It’s important that the current situation is not just seen as being about the integrity of two judges, but rather the independence of an entire branch of government. In the coming years, whether Egypt moves away from an authoritarian political model or not, the judiciary will be a key to legitimacy. Considering that the succession of President Hosni Mubarak has been left unclear, and that his own son may be vying for the job, the current crisis might be seen as an effort by the regime to smooth out obstacles to certain succession scenarios that are potentially unpopular.
Update: A French version of the same document is after the jump. Version Francaise du document sur les juges Egyptiens ci-dessous.