Message from Egyptian Magistrates to Public Opinion

In Egypt /Road Map Program by

In solidarity with the struggle of Egyptian magistrates and their relentless efforts to ensure independence and immunity of the judiciary against interventions of the executive power, CIHRS organized a symposium entitled: “Can the Massacre of Magistrates or of Elections be Prevented?” Speakers included Dr. Mohammed Salim Al &#146awa, lawyer, Dr. Mohammed Mirghani Khairy, Professor of Public Law, Faculty of Law, Ain Shams University, Nabil Abdul Fattah, head of the Social Relations Unit, Al Ahram Center for Political and Strategic Studies, Counselor Yehia Al Rifai, Honorary President of the Magistrates&#146 Club, Counselors Ahmed Mekki, Mahmoud Al Khodeiri, Mahmoud Mekki, and Hisham al Bastawissi, Vice Presidents of the Court of Cassation. Mr. Bahey El Din Hassan, CIHRS Director moderated the symposium.

Discussions of the symposium stressed the following:

I- There is a close relation between the issue of independence of the judiciary and that of organizing impartial elections – under full supervision of the judiciary at all stages- whether presidential or parliamentary elections.

Speakers sharply criticized what the latest referendum on the amendment of Article 76 of the Constitution witnessed, including the forgery of the people&#146s aspirations, government persistence to make judicial supervision of this referendum sham, in contravention of constitutional provisions and the judgment of the Supreme Constitutional Court. They also condemn events that routinely occur in public elections, including the violation or disregard of State Council decisions and those of the Court of Cassation regarding the invalidity of nomination procedures or the entire electoral process. A number of speakers asserted that this phenomenon is a typical manifestation of the disdain the ruling institutions in Egypt hold for the Constitution and the law.

Interventions affirmed that reform in Egypt is contingent upon the formation of the legislative power/ parliament through free and impartial elections that truly and genuinely express the will of the voters and puts an end to the huge intrusion of the executive power into the legislative power and the supervision of the judiciary.

II- Some of the speakers expressed their apprehension vis-à-vis possible state embarking on a new “massacre” of magistrates, to punish them for their stringent insistence on their autonomy and on promoting the draft law for the regulation of the judiciary power. Magistrates refused to be “false witnesses” (practice perjury) on the course of either presidential or parliamentary elections and insisted that their supervision of the electoral process should be full and in conjunction with issuing this law. Some speakers maintained that the massacre of magistrates reached its climax in 1969, but had already been unleashed since 1952 to date. They pointed out in this connection to the formation of military courts for Kafr Al Dawar workers a few weeks after the July 1952 Revolution was launched, to what was known as “perfidy courts” and revolutionary court, and other exceptional courts that expropriated the judiciary power. They also mentioned what the Sadat regime introduced, namely the value court, the post of the Socialist Public Prosecutor, the court of party affairs, in addition to the “Emergency” courts. Over more than fifty years, Egyptian constitutions used to corroborate the serious disequilibrium between powers in favor of the executive. 65% of the constitutional competences are placed in the hands of the head of state, according to the 1971 Constitution.

Some of the participants alluded to the fact that repercussions of the “massacre of magistrates” in 1969 are still influential until now, since the Law No 82 of 1969, promulgating the formation of the supreme council for judiciary bodies, presided over by the head of state, was maintained, even though the court of cassation issued a number of judgments ever since to confirm it was null and void and unconstitutional. Nevertheless, the authorities persistently adhered to it and strove to guard against its ineffectiveness by inserting it into the 1971 Constitution.

Some speakers indicated that it was highly unlikely that the scenario of confrontation with magistrates, culminating with the 1969 massacre, would repeat itself. However, the massacre, they claimed, might take different forms, whereas government could use methods such as luring, bribery, tempting, and material subjugation of magistrates to bring pressure to bear on them, win some of them over, and create cleavages among them.

III- Interventions monitored various manifestations of the defects of the legislative structure, which provided large-scale competences for the executive power to flagrantly intervene in the judiciary. In this connection, it was indicated that in particular that 85 competences are in the firm grip of the minister of justice regarding the minutest details of the work of magistrates and the prosecution. Those details include appointments, promotions, rewards and incentives, commissioning, and judicial inquisition. In this sense, the ministry of justice, according to some of the speakers, is manipulating, terrorizing and corrupting the judiciary through its full-fledged financial and administrative supremacy. Add to this the competences and powers of the head of state to interfere in the course of justice, using the emergency law, and his power to appoint heads of judicial bodies and the public prosecutor.
IV- Interventions stressed that the independence of the judiciary is not a demand restricted to judges alone, but rather a request of the Egyptian people, since an immune judge is more qualified to reinstitute justice, especially when the matter concerns disputes or conflicts between state bodies and citizens. Some speakers considered that the most serious threat to the freedoms of Egyptian is the presence of non-independent judges, while others maintained that countries whose judiciary lacks independence cannot be considered as autonomous states.

Interventions emphasized the reciprocal link between growth and development of civil society on one hand and independence of the judiciary on the other. They also noticed the concurrence between the vitality of civil society and independence of the judiciary prior to 1952, then aggression on both of them after the July 1952 revolution. They called to concert efforts of civil society to support magistrates in their request to expedite the issuance of the law regulating the judiciary power. This law would secure the independence and immunity to magistrates, would limit interventions by the ministry of justice in the judicial affairs, and would cancel all forms of exceptional justice, in addition to empowering magistrates to fully supervise public elections.

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