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The judiciary is sacred; judges are fallible

By-Nader Fergany | 30 March 2012

 No doubt that the judiciary as an institution is sacred, but individual judges are fallible. They are human beings prone to error, temptation and prejudice, especially under the rewards and punishment of a corrupt authoritarian regime. They can be coaxed and corrupted.

On principle, a judge should be immune to indiscretions, but the probability of transgression is higher when the authoritarian regime purposefully undermines the independence of the judiciary, and subjects judges to rewards and penalties by the executive powers. This spreads corruption in society – of which judges are an intrinsic part.
 
While Egypt should be proud of its respectable and impartial judges, this does not mean that during its long judicial history there have not been a handful of judges who sullied Egypt’s pristine judicial robes with transgressions that upright judges avoid under normal circumstances. These are errors that honourable judges who hold the ember of freedom and justice in their hand avoid, even under a corrupt and tyrannical regime, and meddling with the independence of the judiciary. That is why, once in a while, the Supreme Judicial Council decides to dismiss some judges who are accused of indiscretions that damage the integrity and reputation of the judiciary. The most renowned in 2010 were a senior judge who headed the Criminal Court of Appeals and another judge at the Court of Appeals.
 
We should never forget that the person who issued arbitrary wanton sentences against Egyptian victims in the Dinshwai massacre, for example, was an Egyptian judge named Boutros Ghali – and the name rings a bell today. And the defence lawyer of the real British criminals at the Dinshwai trial was also an Egyptian. While these examples do not represent the majority of Egypt’s worthy judges, their type has been thrown in the wastebasket of history and received what they deserve of popular and official condemnation and punishment.
 
The judiciary is one of the key institutions of governing a civilised society, and an independent, just judiciary is a key pillar in proper institutionalised democratic rule. The judiciary is an institution and value that is precious to the people and is relied upon to maintain freedom, justice, dignity and humanity. Hence, establishing an impartial, just and independent judiciary goes beyond the judges themselves and includes the masses.
 
At a certain point in time, judges hold a double honour: executing the responsibility of impartial and just judgment, as well as expressing the conscience of the nation. They are the elite who are responsible for protecting what is right and upholding justice as the foundation of good governance. They are the conscience of the nation.
 
Under an authoritarian regime based on tyranny and corruption, justice and truth are sacrificed in a more politically comprehensive way, and not just in the narrow definition of partisanship and the pursuit of power. Therefore, upholding justice and truth under a despotic regime is an honour for respectable judges since it is a word of truth in the face of brutal rulers, and is said to be the best form of jihad.
 
This puts judges at a historical crossroads today in facing the paramount challenge of structural reform of governance, especially to guarantee the sovereignty of the law that protects and upholds freedom and ensures the absolute independence of the judiciary. The general context of political reform also becomes a vested interest for judges, since they are the vanguards of the nation’s conscience during transition from stifled freedom and wasted public benefit by the corrupt and tyrannical ruling junta, to a society of freedom and proper institutionalised democratic governance.
 
This does not undermine the integrity of the judiciary or contradict their abstinence from politics in terms of partisanship and pursuing power. On the contrary, it raises their stature and promises even more honour for them in a society of freedom and proper democratic governance.
 
Despotic rule should be warned that marginalising judges from participating in this historic reform process under the pretext of not politicising the judiciary – or using some judges to serve an authoritarian regime and the unholy alliance of power and wealth by issuing verdicts that in the end serve the monopoly of power and wealth and harm the balance of freedom and justice – is the worst blunder by some judges under a corrupt and tyrannical regime.
 
Meddling with judicial independence
 
Unfortunately, during the corrupt and despotic regime, there was widespread interference by the executive power in judicial discourse. For example, the case of foreign funding to NGOs was at first triggered by the actions of the executive power, namely the Supreme Council of the Armed Forces (SCAF) and some members of its cabinet who were influential under the ousted despotic regime. One of them was, in fact, directly responsible for foreign funds sent to Egypt, and hence she was also responsible for the foreign organisations receiving the funds. These organisations that were later indicted continued to receive funds from abroad and operated without any accountability for many years – sometimes even benefiting from official cover, as the minister herself admitted after the scandal erupted.
 
Accusations were not filed by security agencies, whose primary mission supposedly is to protect national security, but either did not know that these organisations were doing something illegal for so many years – which would be a catastrophe – or turned a blind eye, which is even worse. Meanwhile, these same parties were quick to point an accusing finger at supporters of the popular revolution, especially the youth and females among them whom they constantly terrorise.
 
Neither was the allegation issued by the Prosecutor General, who is supposed to be the people’s attorney in charge of defending the common good of the nation.
 
In the end, the case was referred to two judges for investigation, which is proper procedure. However, the executive power and its media fuelled the fire to convert this into an issue of national dignity, an assault on Egypt’s independence and the honour of its people. Once the case was referred to the judiciary, the executive power should have left the issue alone if it truly wanted the judiciary to be independent. Yet, it is difficult to imagine that the two judges were not influenced by the raging propaganda war by the executive powers and media against these organisations, or that executive powers did not interfere after investigations began. Proof of this is that the raid on the offices of these organisations occurred using a large and formidable show of force by officers wearing battle gear and armed with automatic machine guns.
 
Even stronger evidence is the fact that the two judges overseeing investigations framed their findings as a national victory, as if it were a holy war, and – unusually – announced them at a news conference, in a move that clearly contradicts laws stipulating the secrecy of investigations. No doubt, the executive power wanted to win points in its minor war with donor countries, although it quickly became apparent that they could not be weaned off the aid. The crisis over US aid to Egypt – mostly in the form of military assistance – became contingent on putting some US citizens on trial and their seeking refuge at the US embassy in Cairo to avoid appearing in Egyptian courts. This prevented the judges from even hearing their requests or allowing a lawyer to defend them.
 
Then, even more scandalous, the respectable judges who were assigned the case recused themselves because they were uncomfortable that a senior judge associated with the executive power was trying to interfere in procedure. The US State Department soon announced in Washington that the crisis was about to be resolved, and it seemed that Hilary Clinton was better informed than the Egyptian people and the assigned judges. Later, it was revealed that US mediators – and an Israeli sent by the prime minister of Israel – were able to convince the executive power and the majority of parliament to resolve the crisis.
 
As the crisis in Egypt raged after the judges recused themselves, a US military plane was flying towards Cairo Airport to transport the foreign defendants as they fled Egypt to avoid appearing before Egyptian courts.
 
The senior judge abused his mandate and hastily formed a judicial panel at night, consisting of judges who lacked the professional judiciary expertise whom the authoritarian regime often infused into the judiciary to taint its integrity. It repealed the judicial decision banning the defendants from travelling using flimsy legal amendments approved by the senior judge, and they left the country after the plane was allowed to land and depart with its passengers on board. This was entirely the decision of the executive powers.
 
In order to guarantee the absolute independence of the judiciary, a new law must be issued to regulate the power of the judiciary and guarantee its independence. But legislation is being stalled by the SCAF, the Supreme Judiciary Council and Parliament. To protect the complete independence of the judiciary, the law must guarantee that the Supreme Judiciary Council is only membered by judges. It should be responsible for appointing judges and choosing the heads of court, as well as promoting and disciplining them.
 
The Council should also be in charge of appointing judicial inspection committees and not allowing judges to leave the bench on assignment or assume senior executive positions. The chairman of the Council should be elected, as should the Prosecutor General, on condition that parliament confirms the appointments to both positions. The Prosecutor General and the chairman of the Council, meanwhile, should serve a four-year term that is renewable only once, according to the same conditions.
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