CAIRO: Egypt’s judiciary has emerged from the uprising that toppled Hosni Mubarak as one of the few institutions retaining some credibility, but the weight of public expectations may have forced it to take on too much, far too fast.
Dozens of prosecutions are under way against businessmen and former officials accused of corruption, including most notably Mubarak, his sons and associates.
The rush to prosecute people and companies who may have profited illegally under Mubarak is understandable, judges and lawyers say. But barely eight months after Mubarak was ousted, neither the courts nor the laws are yet up to the challenge, making it harder for Egypt to turn the page.
"Engaging the judiciary with such a large number of cases — most of which are critical for Egypt’s future — without having institutional reform means that judges will find themselves put in a very difficult situation," Moataz El-Fegiery, of the International Committee for Transitional Justice, told Reuters.
Judges are wrangling over the wording of new laws that will among other things erase the traces of past leaders’ attempts to meddle in the courts, but the result looks months away.
For now, Egyptians will have to make do with what they’ve got, and there will inevitably be disappointments.
"I hope that the Egyptian judiciary does not pay the price for the mistakes committed by other political institutions in Egypt," El-Fegiery said.
Some are suggesting that what Egypt needs to deal with past injustices is a kind of truth and reconciliation commission.
Judicial independence
One of the first Arab states to establish a judiciary, Egypt has a legacy of judicial independence that endured even after a 1952 coup ushered in successive military rulers.
For decades, the Supreme Constitutional Court (SCC) and other courts provided avenues for opposition parties, rights groups and activists to meaningfully challenge authorities.
The SCC ruled election laws illegal in 1987 and 1990 — during the Mubarak era — forcing the dissolution of parliament, overhauls of the electoral system and early elections. At least 11 political parties owe their existence to court verdicts.
In 2000, a court ruling demanded full judicial monitoring of elections for the first time in Egypt’s history, achieving by constitutional litigation what opposition parties had failed to bring about in decades of parliamentary debates.
Mubarak was able to rein in the judiciary significantly, however.
He and his predecessors empowered the executive branch to control judicial budgets, promotions and appointments, and to discipline judges and even to set their salaries.
Judges recall how the former justice minister, a political appointee, demanded that no case be filed against an official without his nod. In other cases, judges were brought to disciplinary hearings for exposing election fraud.
Even more heavy-handed was how the government disregarded some court verdicts, notably in Egypt’s 2010 parliamentary election, when courts ruled several district results illegal.
Parliament was not dissolved and the results stood, stoking public anger about election-rigging in the weeks before the uprising against Mubarak’s 30-year rule erupted in January.
"In Egypt, we always say we have independent judges but not an independent judiciary," Judge Mohamed Hamed El-Gamal, a former head of the State Council, said in an interview.
‘Time may be right’
Judges hope the uprising will propel reforms to stop the executive branch of the government — the president’s office — interfering in the judiciary process.
"We have been fighting for over 30 years for independence and now the time may be right," Zaghloul Al-Balshy, a senior judge and vice chairman of the Court of Cassation, told Reuters.
The latest draft of new laws governing the judiciary would ban the appointment of judges in government posts and set clearer rules for secondments of judges to ministries as consultants, a practice that has often confused their loyalties.
The draft also calls for judges in the Court of Cassation, Egypt’s highest appeal court, to be elected by peers, so that the most competent jurists can be promoted to the most influential positions.
It would bring judicial inspections under the authority of a judicial council, effectively ending the ability of the Justice Minister to "discipline" judges.
It also stipulates that the prosecutor is selected by judges, not appointed by the president as before, and tasks judicial bodies with monitoring the illicit gains authority, the main body responsible for graft investigations, to make it answerable to judges and not to government ministers.
Different judges’ associations and lawyers are haggling over some of the clauses of the draft and the cabinet has said no law will be issued without parliamentary approval.
Egypt’s parliamentary vote is set to begin on Nov. 28. The new chamber is tasked with drafting Egypt’s constitution, meaning the judicial bill will be pushed back for months.
The interim ruling army council says it is committed to judicial independence.
Backlog
While the draft laws are being drawn up, the wheels of the old system continue to turn.
A slew of high-profile cases has been brought against former officials and foreign and domestic investors, sometimes without full investigation. The rush means dozens of hastily prepared cases have come to court, which analysts fear may result in awkward acquittals that end up embarrassing the judiciary.
In other cases, it is drawing the judiciary into complicated battles as some seek to overturn what they say are abuses of the past. The risk is that the protracted courtroom dramas will further undermine investor confidence.
A September court verdict alarmed investors when the sales of three former state firms to private investors were ordered to be annulled and their assets returned to state hands.
"It is of concern when contracts are being cancelled one after the other," said Mohamed Abu Basha, an economist with investment house EFG-Hermes. "Even if this isn’t the judiciary’s fault, the end-result is a negative view of Egypt."
The problems lay mostly in flawed government regulations, not in the role of the judges asked to rule on them, he said.
"I may have concerns about the consistency of regulations themselves, the enforcement procedures and the time in which verdicts may be issued, but (questioning the) independence of the judiciary would be out of the question," Abu Basha said.
Judges say they also need to be able to apply precedents in corruption cases.
"These suits are not like any other in the history of Egyptian justice," Gamal said, arguing for new laws that define crimes clearly and fairly to prosecute former officials.
"Changing the abuses of the past and holding those who were responsible for them to account cannot happen through regular courts. To respond to exceptional circumstances, we have to have legislation that can meet them," he added.
El-Fegiery and others say an independent truth-seeking commission is vital, rather than leaving the task of resolving all these cases to the judiciary alone.
For now, judges are confident that the draft law on judicial independence will be a major step in the right direction.
"Once you have a law that grants the judiciary its independence, you have guaranteed that no rights or freedoms are violated ever again," Balshy said.
"You can be 100 percent certain that any state that achieves full judicial independence has guaranteed development." –Additional reporting by Marwa Awad.
