Guaranteed judicial independence is the first step towards the meaningful reform and revival of the nation of Egypt, writes Hesham El-Bastawissy* The Holy Quran warned us that the way to destroy a people is to facilitate rampant profligacy among the rich. The moral decay of a country's elites, whose excessive lust for money, privilege and power spreads corruption in the fabric of their societies, eventually leads towards total collapse. It would, therefore, seem unwise for us as a nation to remain passive in the face of the series of misfortunes that have befallen us in the last few years, ranging from such tragedies as the horrendous fire in a state theatre to repeated train and road accidents, the pollution of our air, water and food, the widespread use of dangerous fertilisers, chaotic traffic, and the disappearance of already scarce prime agricultural land, to name just a few paramount concerns. Furthermore, suspicions continue to surround transactions involving the sale of public assets and questions abound regarding the forces behind movements in the Egyptian stock market. Meanwhile, disparities between the rich few and the majority of poor Egyptians keep getting wider. This is compounded by a deficient justice system where laws are unevenly applied and by elections that too often are fraudulent. Regrettably, those who expose or protest such fraud are punished while perpetrators are protected and sometimes even honoured and rewarded. Corruption continues to thrive, aided by laws that forbid any public questioning of the personal finances of officials and by a legal system that protects abusers and punishes those who expose or resist corruption. It is true that Egypt does not have a monopoly on such misfortunes; that other countries also suffer similar and sometimes even worse disasters. However, Egypt appears to stand out as a country that has been beset by all types of disasters in all areas of society simultaneously. It is also exceptional in that corruption has become so ferocious that it succeeded in aborting reforms as modest as those contained in recent proposals tabled by the Judges' Club that address only a limited number of the issues that cast a shadow on the fairness of the justice system and the independence of the judiciary. The modest reforms the Judges' Club has asked for are: First, to categorically forbid the secondment of judges to any work outside the scope of the judiciary as defined in the constitution -- namely rendering judgment in disputes and supervising all elections and referenda. Second, to forbid the appointment of a specific judge to oversee a specific court case, and to mandate the distribution of court cases among judges according to a general abstract rule devised by the general assemblies of each court, and to forbid the delegation of authority to amend or contravene these rules to chief judges. Third, to elect the chief judge of the Court of Cassation (who is the president of the Supreme Council of Justice) and the majority of the members of the Supreme Council of Justice as proposed in the draft law prepared by the Judges' Club. The reasoning behind this proposal is that the application of absolute seniority as stipulated in the current law allows the executive branch to know well ahead of time who will be entrusted with these positions and to use its authority to second these individuals to work elsewhere or to offer them highly lucrative arbitration assignments. At a minimum such a system raises suspicions that the judges would like to eliminate. Fourth, to invest the general assembly of each court with final authority in all matters concerning the court and to forbid any delegation of such authority relating to the work of judges or the distribution of cases. The job of the chief judge in any court should be to implement decisions of the general assembly, not to rule over judges or interfere in their judicial work. The rationale behind this proposal is to prevent individual misconduct or error and to safeguard justice by subjecting decisions to group scrutiny. Fifth, to ensure financial independence of the Judges' Club in order to guarantee and to enshrine in law its independence from any authority other than that of its general assembly. Such independence, which is necessary to secure the independence of the judiciary, should also apply to all syndicates and associations in Egypt. In this connection, it is well to recall that the establishment of an independent Judges' Club was a condition placed by the international community for its agreement to the abolition of mixed courts in Egypt; the presence of an independent organisation for judges considered by the international community a basic and essential guarantee of the independence, integrity and objectivity of Egypt's national judiciary. Thus, any interference by the executive branch in the affairs of the Judges' Club, and certainly any attempt to limit its role or to control it, automatically diminishes the credibility of our judiciary in the eyes of the international community, endangering Egypt's reputation and, at a minimum, adversely affecting the climate for foreign investors. The Egyptian people, demonstrating political maturity, have realised that the first step in the country's fight against corruption and for reform is to ensure the independence of the judiciary. It the judiciary that is entrusted with the task of investigating and passing objective, honest and transparent judgment in all disputes, including those that involve financial, administrative or political corruption. It is also the judiciary that is constitutionally empowered to supervise general elections and referenda. The public is aware that the independence of the judiciary is a guarantee of its integrity and neutrality and is, therefore, indispensable to the proper performance by the judiciary of its role in supervising the electoral process, beginning with the preparation of voter lists up to the announcement of election results. Hence, it did not come as a surprise that the general public rallied around the judges and the Judges' Club in support of real, full and effective supervision of all public elections and referenda by a fully independent judiciary, and in support for the observation of the elections by domestic and international civil society organisations. Nonetheless, the executive branch has continued to resist the demands of the judiciary. Its response was limited to a formal acceptance of the need for an independent budget for the judiciary, but it postponed its implementation for another two years. Of course, the executive branch's success in imposing its will vis-à- vis the independence of the judiciary could only have been achieved in consort with the Peoples' Assembly, which obliged by passing into law what the government wanted. This was not the first time that the legislative and executive branches of government impinged on the judiciary and violated the principle of the separation of powers. We have seen, and continue to observe, the lack of enforcement of court decisions and judgments by the executive branch. We have also seen how a legal innovation was created by the Peoples' Assembly (the so-called "parliament is its own master" principle) to bestow legitimacy on members of the Peoples' Assembly whose membership was declared null and void by a court of law. To do so, the Peoples' Assembly chose to interpret Article 93 of the constitution in a way that clearly stands in violation of the principle of the separation of powers. No one can deny that it is judicial authority alone that is entrusted with passing judgment in the resolution of disputes. When the validity of a Member of Parliament is contested, this constitutes a dispute between two or more parties whose resolution should only be decided through court decision. This jurisdiction cannot be relinquished to the legislature. The continuing struggle for the independence of the judiciary has regrettably drawn in forces of financial, administrative and political corruption that see this cause as a threat to their interests. It is worthwhile to draw attention to the fact that to this day the Anti-Corruption Treaty, signed by the executive and passed by the Peoples' Assembly, has yet to be published in the Official Gazette. According to the constitution, doing so would make it an integral part of our national laws and would mandate the modification of other laws to make them compatible with its provisions. In fact, following the treaty's ratification, the Penal Code was modified in a manner that is in contravention to the treaty. The code was changed in order to criminalise the publication of information on a person's financial situation (including public officials). This is in contravention to the treaty that aims to protect those who expose financial corruption by officials. It follows that in the fight against corruption, the public should call for the publication, without delay, of the Anti-Corruption Treaty in the Official Gazette. In conclusion, I hope that this presentation can help form the basis of meaningful reform that would not only buttress the independence of the judiciary and contribute to the enforcement of accountability at all levels of government, but more importantly restore the dignity of the Egyptian citizen. In the final analysis, the citizen is Egypt's most valuable asset. Only by restoring respect for the individual and his dignity will our citizens regain their capacity to build and innovate and, in doing so, restore Egypt to its rightful place among the nations of the world. * The writer is deputy chief judge in the Court of Cassation. This article was originally written in Arabic and was translated by Samia Farid Shihata.
