The Freefall of the Egyptian Judiciary


This opinion was wrote back in August of this year. For some reason, the editor for where it was aimed at being published just didn’t take care of it until now. Given the recent developments in the country, this is really a pity for his website. This said, I like the piece (yes, it happens to me that I like what I write), so I didn’t feel like trashing it. And as remembering is important if we want to move forward, I guess publishing this even with some delay is not a totally meaningless idea 🙂

I like statistics a lot. And the relevant quote: “There are three kinds of lies: lies, damned lies and statistics”. Attributed to a “wise statesman” from the 19th century, it translates the ever-lasting use of numbers to strengthen weak arguments.

In post-revolutionary Egypt, there also are three types of lies: lies, damned lies and the independence of the judiciary.

I, the Army, am the People*

Once upon a time, millions of people gathered in a legendary place called Tahrir Square chanting against a dictator. Fearless of camels and machine gun, they remained until the dignity castrator stepped down. Then was born the first lie: the army and the people are hand in hand.

I may be accused of bias by partisan position or by diving into the easiness of a primary anti-militarist bashing. A rather dreadful catalog of crackdowns on civilians as well as abundant footage of relentless bloodshed speak for themselves. The Supreme Council of Armed Forces (SCAF) has one and only leitmotiv: “down with the people”.

SCAF is the guardian of the “deep state”, this godawful Mubarak-era zombie network of former NDP members and military appointees still in office. The junta jealously keeps its dominion of the country’s treasures, and meticulously murders any hope for a better and free life. The horrific mirage of the Egyptian transition to democracy reached its climax with the military organizing the first “free and fair” presidential elections back in May 2012.

The Egyptian Cornelian Dilemma

The ruling junta thus bargained for the level ‘Damned Lies’ by organizing this simulacrum of civic duty. This entertainment ended up in a scary Cornelian dilemma as the first round put forward the candidate of the “deep state” Ahmed Shafiq and the “spare tyre” of the Muslim Brotherhood, Mohamed Morsi. The latter eventually won, shortly after cautious SCAF had released an addendum to the Constitutional Declaration: a soft coup safe-guarding all key powers to the military.

Morsi promised heaven, instead he kicked off in a mediocre politico-judicial folding screen move. The Ramadan soap operas were insufficient, so he sacked the two top SCAF officers. Coup de théâtre, coup de grâce or coup d’état: still too early to say, yet commentators suggest a huge deal is in the making.

The Independence of the Judiciary

One of the most striking recent examples of the judiciary’s unconditional independence is its deafening silence on the military trials. These clearly infringe the constitutional right to be tried by a civilian judge. But am I silly: SCAF canceled the Constitution right after taking up its quarters as the country’s ruler, and the Muslim Brotherhood did not object. As the new Constitution is to be drafted in the foreseeable future, a suggestion also emerged by Gen. Shaheen to include military trials in its fundamentals. Two judges have so far dared to protest such a proposal (Arabic) just as only three judges dared denounce the abuse of military trials against civilians in the past 18 months, all on their personal capacity. All President Morsi and the Brotherhood have done so far on military-tried civilians elegantly sums up to “let them rot”.

Such shyness has, however, not chilled the Supreme Constitutional Council (SCC) fervors. The SCC dissolved the Parliament, kept Shafiq in the presidential race all by carefully standing aside from the simultaneous soft coup operated by SCAF. One may argue that the SCC has always been in shades of gray (no BDSM pun intended) for having ruled against Mubarak in the past. The judiciary may have been partly independent under Mubarak who did not employ himself exclusively to its massacre: Nasser had already completed this. Add to this a unnoticed decree from June 2011 which outcomes in a remarkably self-perpetuating SCC. The latter obviously plays a crucial role in politics seemingly acting as buffer solution for the political sorcerer’s apprentices in the lively post-revolutionary playground.

Morsi’s Minister of Justice announced a new bill aiming at ending one of the main ways the executive branch controls the judiciary. It is still unclear though whether the President will stop nominating the judges. Candidates’ ideological orientation has always been important: under Mubarak, it was unlikely for a sympathizer or member of some Islamist movement to be hired as judge.

The current Minister of Justice and his brother – now Egypt’s Vice President, – are known for their activism in favor of independent judiciary; similarly, other prominent judges have recently taken strong political stands (Arabic). Whether against Mubarak or against the Brotherhood’s “systematic plan meticulously designed to destroy this country”, the destiny of the judiciary reaches the whole political spectrum. Such politization seems to point out to a similar symptom in other “transitions to democracy”: a weak political system whose resilience is ensured by the “rule of law”.

[*] A free adaptation of Nietzsche’s quote: “The state is the coldest of all cold monsters. Coldly it lies, too; and this lie creeps from its mouth: ‘I, the state, am the people.’… Everything about it is false; it bites with stolen teeth.”