On the judiciary crisis of Egypt: An alternate view
by Ziad Bahaa-Eldin*
Often the media occupies itself with the minutiae of current events without giving the reader enough basic information.
The ongoing dispute over laws governing the judiciary is a good example. So let me first outline the issue as I understand it before proposing an opinion.
Several laws regulate judicial bodies in Egypt. Currently, the presidents of the Court of Cassation, the State Council, and the State Litigation Authority are appointed by presidential decree after consulting the general assembly or supreme council of each of these three bodies—that is, with the participation of senior members of those judicial bodies. Nominees for the position are customarily chosen on the basis of seniority.
Last week, however, the House of Representatives approved legal amendments that would mean these positions are filled by presidential decree from among three names submitted by each of the bodies in question.
The judicial community rejected the amendments, believing they put the power of appointment in the hand of the president and therefore erode the independence of the judiciary.
Judicial autonomy is protected in several constitutional provisions: Article 184, which states “the judiciary is independent”; “each judicial body or agency shall manage its own affairs” (Article 185); “judges are independent and immune to dismissal; they are subject to no authority but the law” (Article 186).
Judges also believe that issuing such a law without requesting their opinion contravenes Article 185 of the constitution, which requires judicial bodies to be consulted on any law governing their affairs.
These are the facts of the dispute. As for opinion, I agree that the amendments must be rejected because they undermine judicial autonomy, without which all constitutional rights and safeguards are worthless.
The judiciary is the last line of defense for these rights; it is the body capable of stopping infringements of rights by the executive. And in any case, the amendments are likely to be invalidated because the judicial bodies in question were not consulted.
Many other commentators have addressed this at length, so what interests me here is the broader issue of judicial autonomy and justice.
First, defenders of judges and their independence must distinguish the right grounds for solidarity from the wrong.
The recent amendments violate the principle of judicial independence and involved no consultation with the judiciary—these are appropriate and sufficient grounds. But claims that the House has no authority to legislate the affairs of the judiciary are misplaced. While Article 185 of the constitution requires the parliament to consult the judiciary on relevant laws, it does not restrict its power to legislate as long as it stays within constitutional bounds.
Ultimately, parliament must remain the sole body empowered to legislate for all social constituencies, including the judiciary, police, army, government, Al-Azhar, the church, and the president.
The core of the civil state is that the parliament legislates for all, and the judiciary monitors the enforcement of the law for all. Limiting the parliament’s power to legislate for the judiciary today could be extended to other groups tomorrow.
Second, it worries me that the Judges Club has reportedly decided to stand united against these amendments but more so to discipline judges who break ranks. This limitation on freedom of thought and opinion should not issue from an institution that defends liberties.
Every judge has the freedom to form an independent opinion about his/her profession, even if it’s a minority opinion.
Finally, the issue should not only be supporting judges in their current battle. The greater issue is society’s right to a fair, independent judiciary. This means a judiciary that is biased only to justice on every occasion and in every case.
It means a judiciary that bares it fangs and takes an unequivocal stand not only where the conditions of judges are concerned, but whenever the rule of law and justice is infringed and the rights and freedoms of citizens are trampled.
This is not about setting conditions for solidarity with judges in their struggle to maintain their autonomy. We must reject the parliament’s law because at issue is the principle of respect for the constitution.
But judges themselves have a higher duty to champion justice, protect liberties, and uphold the constitution in this battle and in others. This is a position that cannot be imposed on the judicial community. It is a stance that all judges must cling to if they care about the future of the country and advancing justice—this is where our hope lies.
*Ziad Bahaa-Eldin holds a PhD in financial law from the London School of Economics. He is former deputy prime minister, former chairman of the Egyptian Financial Supervisory Authority and former chairman of the General Authority for Investment.