Egypt | Rights groups: The referral of judges Hisham Raouf and Assem Abd al-Gabbar to a competency hearing is political retaliation - Cairo Institute for Human Rights Studies (CIHRS)

In conjunction with the sixth session of the Supreme Judiciary Council to be held on February 5^th, the undersigned organizations express their full solidarity with Judge Hisham Raouf and Judge Assem Abd al-Gabbar, who were referred to the Competency Council after attending a panel to discuss a proposed anti-torture law they had helped draft, at the invitation of and in collaboration with rights lawyer Negad al-Borai. The case against the two judges is marred by several irregularities and grave violations indicative of retaliatory intent, as detailed in a new research paper released by the Cairo Institute for Human Rights Studies (CIHRS) today titled “Striking Back at Justice.”

The case began in May 2015, when a judge was appointed to investigate Judge Hisham Raouf and Judge Assem Abd al-Gabbar for collaborating with an “illegal organization” and drafting a bill to combat torture. They helped draft the bill with the intention of filling a statutory gap that impedes the work of the Public Prosecution and the judiciary in torture cases, leading to impunity for torturers. Since attending a panel discussion or workshop is not grounds for any charge, it was ‘easier’ to refer the two judges to the Competency Council rather than to disciplinary proceedings. Cases brought before the Competency Council require no specific charge against the judge, as the proceedings assess the judge’s overall fitness to continue to serve in his official capacity. In contrast, disciplinary proceedings require a specific charge, based either on either a criminal or administrative investigation, with the hearing designed to determine whether the judge in question committed the alleged act.

Given the lower bar in competency hearings, the undersigned organizations note that such hearings are being increasingly used as a means to retaliate against certain judges and exclude them from their positions because of their opinions and political stances. At the same time, many judges who have expressed more acceptable political opinions, both in their verdicts and in press interviews, have faced no repercussions. The investigations were concluded with the two judges’ referral to the Competency Board on March 27 2017.

“Striking Back at Justice,” whose conclusions have been endorsed by the undersigned organizations, demonstrates that Raouf and Abd al-Gabbar were not responsible for any legal infraction. In contrast, the investigation into them was marred by several legal and procedural irregularities and infractions: the investigating judge was appointed to the case in violation of the law, since he was appointed in the absence of any specific charge to investigate; the appointment was renewed several times in violation of legal requirements to provide cause; the investigating judge continued to work after the period of his appointment had expired; and he summoned the two judges for questioning without notifying the Supreme Judiciary Council.

The paper also documents the clear biases of the investigating judge, who has demonstrated a desire to retaliate against them and end their judicial careers. The judge questioned Raouf and Abd al-Gabbar on subjects far beyond the remit of the investigation, seemingly with the goal of finding grounds for additional charges. Taking just one example, he asked Judge Raouf about his opinion of a segment aired on the pro-Muslim Brotherhood al-Sharq Channel, in which the program presenter cast aspersions on Karim Farouq—the investigating officer and the Egyptian judiciary. The segment had no relevance to the investigation at hand.

The Supreme Judiciary Council, the Judicial Inspection Agency, and the investigating judge had concluded that the acts of Raouf and Abd al-Gabbar constituted involvement in politics, in violation of political neutrality- one of the conditions for judicial service——thus rendering them unfit for their office. “Striking Back at Justice” details the legal intent behind the prohibition on political involvement. In doing so, it relies on the explanatory memo of Law 66/1943 on the independence of the judiciary—Article 17 of that law contains the prohibition—as well as previous rulings of the disciplinary board and Competence Council, and statements from the Supreme Judiciary Council.

CIHRS’ analysis concludes that a discussion and proposal of statutory amendments does not fall within the political activities proscribed by the law. This is evidenced most clearly by the recent stance of numerous judges who rejected the new law regulating the appointment of the heads of judicial bodies. While these judges pursued all legal avenues to oppose the law, it did not prevent them from expressing their dissatisfaction with it, publicly detailing their points of disagreement with it, calling for their objections to be recorded in official minutes, and proposing amendments to it, as part of an effort to develop legislation.

The undersigned organizations consider the judges’ contribution to drafting the anti-torture bill a duty and an honorable act worthy of respect and gratitude, not punishment. We believe the role of the judge is not limited to settling disputes in his courtroom, and any judge who is divorced from his community and the challenges of his work cannot be expected to act with competence and effectiveness. This is a belief that has been affirmed by the disciplinary board and the Competency Committee in several of their own rulings.

Signatory organizations: