The Egyptian judiciary has traditionally been a source of popular pride. Recent highlight cases suggest that may not last forever, writes Abdel-Moneim Said Before leaving for a week-long trip to the US this month I wrote an article, appearing in Al-Ahram of 14 June, in which I discussed several causes for concern in Egypt. I spoke of the Shura Council election results, the developing relations between Mohammed El-Baradei and the Muslim Brotherhood, and certain actions by the judiciary that could threaten the separation of powers in government and the principle of judicial autonomy. I found the latter issue particularly disturbing, because our fair and impartial judiciary has always served as the keel in Egyptian political, social and even economic life, and all opinion polls confirm that it is the authority that enjoys the highest levels of public confidence and respect. To my dismay, while I was in the US, I found that all these sources of concern generated yet another cause for concern. They combine to create a distorted image of Egypt today, one that obscures the normal progression of daily life as affected by the dynamics of economic and demographic expansion, and that completely ignores how Egypt's troubles and concerns are the subjects of intense public debate and other forms of public interaction. When the image is further blackened by a horrific incident such as that which befell Khaled Said of Alexandria, we find our country's entire international reputation in jeopardy. As distressful as this incident was and as much as it demands our attention, my point here is that it seems like only the flaws and failings go into shaping Egypt's face abroad, while all that is positive is discarded. This is by no means meant to belittle the causes for anxiety; rather it is an attempt to put them in proper perspective so that we can treat them with all due wisdom and deliberation. The question of our judicial authority is, I believe, the most pressing issue at hand. Indeed, the urgency only increased during my absence when another crisis between lawyers and judges threw the entire system into the clutches of a dilemma. Executive intervention could undermine judicial autonomy, but inaction would allow the disputes to spiral, for which the whole of society would have to pay a terrible price. That there is a problem with the judiciary is beyond doubt. There are numerous instances testifying to the fact that it has begun to intervene in areas outside of its jurisdiction and competence. Take, for example, the ruling by the Administrative Court of the first instance, on 19 May 2009, obliging the minister of interior to submit the matter of Egyptian men married to Israeli women to the prime minister so that he could take the appropriate measures to strip the men of their nationality. The ministers of interior and foreign affairs appealed this ruling before the Supreme Administrative Court (SAC), the supreme body of the State Council, on the grounds that a decision of this nature fell under the jurisdiction of the People's Assembly, not the courts. On 5 June 2010, the higher court ruled that each case must be presented separately to the State Council that would consider them individually. The ruling came under fire from diverse directions, charging that the State Council had appointed itself defender of national security over the armed forces and other security agencies. The SAC was also the judiciary body that pronounced a final ruling obliging the church to issue divorced persons permits to remarry. Issued on 29 May, the ruling could well precipitate a clash between the state and the church. Already Pope Shenouda III, patriarch of the See of St Mark and head of the Coptic Church, has rejected the ruling, stating that no one can compel the church to violate Biblical strictures. He appealed to the courts not to intervene in religious affairs, cautioned that Coptic divorcees who obtain a civil marriage will be excommunicated and warned that he would defrock any priest who performed the marriage sacraments for a divorced person. Also, an emergency Holy Synod, held on 8 June, issued a formal statement signed by 82 bishops protesting the court ruling. On 30 March 2010, the SAC ruled that the government must set an appropriate minimum wage that reflects the rising costs of living. The suit was filed by the Egyptian Centre for Economic and Social Rights against the president and the prime minister, and pleaded that they should narrow the gap between wages and soaring prices. In its findings, the SAC levelled several criticisms against the government. Most notably, it stated that by not setting an appropriate minimum wage following the transition from the socialist to the capitalist economic system the government had obstructed constitutional provisions by failing to adequately address the social dimension of this transition. This new trend of the judiciary to step into the realms of other national authorities has stirred sharp divisions of opinion. The relationship between religion and the state is one of the most contentious areas. In the case of the SAC ruling on the remarriage of Coptic divorcees, one body of opinion protested against the intervention of the court in the affairs of the church, arguing that the judiciary has no business in meddling in matters of faith, in which the law of God must prevail over man made laws. The opposing view held that the court had merely issued a ruling in favour of a Coptic plaintiff who felt that one of his rights had been impaired by the church, which is not above the law. They further stressed that this was a civil court, as opposed to Muslim court, and that its ruling was based on the provisions of the 1938 Personal Status Law for Copts. In the hope of finding the happy medium, the third camp maintained that this was a legal, not a political, dispute and that the best way of handling it was through the proper legal channels; namely, by taking it to the Supreme Constitutional Court. The developments surrounding the SAC rulings have cast into relief "the separation of powers," that key principle for regulating the interaction between the authorities of the state in the interest of safeguarding the civil and human rights and freedoms enshrined in the constitution. If the ancient Greeks first set the model for the application of this principle in the constitutions of their city-states, the European Enlightenment gave it substance and moral distinction. The French philosopher Baron de Montesquieu famously argued that the separation of powers was the sole guarantee of human freedom and the safety of people's lives and property, because the unification of powers in a single governing authority -- or the domination of one authority over the others -- led to despotism and the inevitable erosion of existing rights and freedoms. However, certain instruments must be brought to bear in order to ensure that the principle is applied properly and effectively. The first is to strike a balance between governing authorities in order to keep them from encroaching on each other's areas of jurisdiction. The second is a system of checks in order to prevent the authorities from exceeding their powers. Montesquieu divided the authorities of government into three main branches: the executive, which he felt should prevail only in foreign affairs; the legislature, responsible for making laws; and the judiciary, in charge of enforcing the law. In The Spirit of the Laws (1748), he argued that every man in authority will be tempted to use his power to excess, to the detriment of the rights and freedoms of others, which is why there have to be clear boundaries between the authorities and ways to prevent the abuse of authority. Initially, the principle of the division of authorities came under heavy criticism by other political philosophers who objected to it as a means of depriving a monarch of what they believed was his rightful power to legislate. However, by the beginning of the second half of the 18th century the principle caught on and would eventually be applied in the constitutions of many countries. Egypt was one of the first countries of the world to modernise its judiciary, creating the mixed court system in 1875 and national courts in 1883. Under the constitution of 1923, the judiciary was officially made an autonomous authority. Subsequently, the Court of Cassation was created in 1931, the State Council in 1946, and the Supreme Court (later renamed the Supreme Constitutional Court) in 1969. Along the way, the old religious courts and the hisba (morality enforcement) councils were abolished. Along the way, too, the judiciary clashed with the executive on several occasions. The most famous incident was the "Judges' massacre" crisis of 1969, which erupted following a drive to incorporate judges in the Socialist Union Party, the state's sole political party. The Judges' Club desperately fought the move, in response to which the government issued Decree 83 of 1969, restructuring the judiciary and leading to the dismissal of 127 judges. The current Egyptian constitution has reinstated the principle judicial autonomy. Article 165 states, "The Judiciary Authority shall be independent. It shall be exercised by courts of justice of different sorts and classes, which shall issue their judgments in accordance with the law." Article 167 stipulates, "The law shall determine the judiciary organisations and their functions, organise the way of their formation, prescribe the conditions and measures for the appointment and transfer for their members." The following article provides that the "status of judges shall be irrevocable" and that "disciplinary actions with regard to them shall be regulated by law." According to Article 173, "A Supreme Council, presided over by the President of the Republic, shall supervise the affairs of the judiciary organisations. The law shall prescribe its formation, its competencies, and its rules of action. It shall be consulted with regard to draft laws organising the affairs of the judiciary organisations." Consider, too, that articles 64 and 65 state the following: "The sovereignty of law shall be the basis of rule in the State," and "The state shall be subject to the law. The independence and immunity of the judiciary are two basic guarantees to safeguard rights and liberties." So what in the world is happening to the autonomous judiciary, the separation of powers and the intrinsic relationship between these two principles and the lives of the Egyptian people? The subject requires long and deep thought in all quarters of the political system, in which the cards are being reshuffled in a very disturbing way.
