Establishing justice in Egypt after years of law serving tyranny is impossible under the current prosecutor-general and his assistants, writes Gamal Eid When I was a law student in the 1980s, I learned this important maxim: "It is not enough for a judge to rule justly; his justice must be perceived by others." After I began my career as a lawyer in the 1990s, my eyes were opened to another important truth: Egypt lacks an independent judiciary and sovereignty of law. Many verdicts, especially on cases of a political nature or involving incidents of torture, aimed to please a particular interested party, and the intended object of that pleasure was not so much the verdict as it was the person of the judge who issued it. At the time one heard frequent acclaim for the independence of the judiciary in the public and publicised meetings of judges, lawyers and others involved in the administration of justice in Egypt. Real opinions were voiced in private, in lawyers' and judges' chambers and unpublicised gatherings, where genuine frustrations and grievances abounded at the dearth of judicial autonomy. Eventually, because you can't fool all of the people all of the time, as the saying goes, the trumpeting of judicial autonomy faded while the whispered grievances at the injustices caused by the lack of autonomy seeped out from behind closed doors. Soon the volume of the whispering escalated to an angry roar with the resignation of the courageous and venerable former head of the Egyptian Judges Club, Yehia Al-Rifaai. In his resignation letter, in 2002, Justice Al-Rifaai wrote: "The Ministry of Justice has come to have such control over the judiciary, judges and the cases brought before them that all verdicts on what are termed public opinion cases are inevitably brought to appeal, and more than once, which has elicited criticism from world leaders, governments abroad and the foreign press. The power exercised by the ministry has stripped Egyptian courts and judges of any sense of independence and totally paralysed their ability to withstand the pressures brought against them. Such phenomena have ensured that every judge has an obvious interest in warding off the wrath of the executive authority, as represented by the Ministry of Justice, as a result of which no judge can issue an unbiased ruling on any case even if no direct pressure is brought to bear on him. "All the foregoing is, most regretfully, common knowledge. The public's confidence in the courts has not only been shaken, it has been lost, especially with respect to the opinions the courts formulate on these [public opinion] cases. In the eyes of both Egyptians and foreigners, the Egyptian judiciary has become little more than an administrative branch of the executive authority. "The same applies-- self-evidently and above all -- to the office of the prosecutor-general, for similar reasons and also because its directives have persistently breached the constitution and the law. Not only does the prosecutor-general's office blend the powers of investigation and accusation, these powers combine with an overwhelming chain of command connected firmly to the will of the directors of this office. In addition, this department of the judiciary displays an abnormally obsequious welcome for reports and complaints filed by security and administrative monitoring agencies, and, indeed, for complaints filed by some persons who may be well placed enough to submit them to a senior official directly and have their needs attended to on the same day. This only confirms what everyone knows to be true, which is that all guarantees for equality between citizens before the law and the courts have become null and void. The upshot is that the Egyptian reputation in the eyes of the entire world has sunk so low that we have become an object of ridicule for the current US president and for more than one Israeli prime minister!" In 2006, several months after that black day of the 25 May 2005 referendum on constitutional Article 76 pertaining to the election of the president, around the time when the prosecutor-general shelved the investigation into the sexual harassment by NDP thugs and some police officers of female journalists who had been covering the polls and when there was a growing tide popular solidarity with the movement of judges pressing for judicial autonomy, I asked one of those judges, "What about the prosecutor-general's office?" He answered, "many of the senior officials and members of the office of the prosecutor-general are with us and opposed to the position of the prosecutor-general, the effect of which is to transform this office into a kind of filter between the public and the judiciary, especially in political cases and cases of torture." The judge's remarks gave me hope. They also confirmed that the substance of Counsellor Al-Rifaai's letter -- especially with regard to the prosecution's perverse favouritism for reports and complaints by the security and administrative oversight agencies and to the loss of public confidence in the right to equality before the law -- was not an exaggeration and, in fact, reflected the actual state of the judiciary and the prosecution-general in the Mubarak era in the opinion of a large number of members of this judiciary. So, I was not surprised to hear that some protesters, at the time, rallied outside the prosecutor-general's office and began to chant their now famous refrain, "Free the office of the prosecutor. The taste of life's grown too bitter!" Moreover, I even felt that it was possible to usher in an independent judiciary and prosecutor-general's office, even if Mubarak lacked the necessary political will or if his governments refused to respect this right. This is when we in the Arabic Network for Human Rights Information (ANHRI) decided to hone in on the performance of the prosecutor-general's office. We began our work in this endeavour towards the end of the term of Counsellor Maher Abdel-Wahed who, in 2006, was replaced as prosecutor-general by Counsellor Abdel-Maguid Mahmoud. We found little difference between the old and the new incumbent, all the more so given that the powerful Counsellor Adel Al-Said was retained in his post as assistant prosecutor-general. The following were some of this office's most salient practices: - Precautionary detention was used to punish offenders in cases that should never have been the subject of investigations to begin with. The primary target of this measure were members of the political opposition and young bloggers. - There was no control whatsoever over the torture chambers in the headquarters of the State Security agency. Such was the degree of negligence in this regard that, sometimes, when lawyers appealed to the assistant prosecutor-general to intervene in a case in which a young blogger had been abducted and detained in the State Security building in Lazougli, Counsellor Al-Said would tell them (over the phone) to go speak with a certain officer (whom he would name) to inquire after the young blogger. It had never occurred to him to launch an investigation into the illegal detention of a citizen. He acted not as an assistant prosecutor-general, but as though he was the head of a family sorting out a quarrel between his children. - There was blatant bias on the part of some members of the office of the prosecutor-general against opposition journalists. This bias was tangibly demonstrated during investigations, such as that conducted into the journalist Ibrahim Eissa for allegedly spreading rumours regarding the health of the president. The ostensible "proofs" and "conclusions" cited in the report of Chief Prosecutor Mohamed Faisal demonstrated a clear intent on the part of the prosecution to confirm a trumped up charge, rather than to determine the truth. - There were instances, documented by ANHRI, in which the charges brought against young bloggers had no trace of foundation in the penal code. A particularly notable charge was "exploiting the prevailing democratic climate in the country and attempting to change the system of government." Not much changed during the revolution or following its initial wave. The blood of the martyrs found little solace in the performance of the office of the prosecutor-general: - On 26 January 2011, the prosecutor-general met with a group of lawyers who handed him an official complaint regarding the detention of civilians in some State Security detention camps. His reaction was to rant and rave against the lawyers. The fate of the complaint, itself, remains a mystery to this day. - The investigations that were conducted into the deaths of the martyrs were slipshod. Not even the weapons that the accused officers allegedly used to kill demonstrators were retained as evidence. In fact, many of those officers were not even asked about their weapons. - The defendants accused of murdering demonstrators during the revolution were not held in custody. Their release enabled many of them, given the powers they enjoy, to fabricate documents and evidence that would lead to their acquittal. - The office of the prosecutor-general would circumvent the complaints submitted by the families of the martyrs to the prosecutor-general appealing for his protection from various types of pressure and attempts to entice or intimidate them into altering their testimony or dropping their lawsuits. - Investigations into some of the crimes reported since February 2011 have been extremely slow, examples of which include the case regarding the cutting off of communications during the revolution and the demand to investigate former minister of information Anas Al-Fiki. The acquittal of those accused of murdering demonstrators was not inevitable. The ways that allow criminals to escape justice are not that difficult to stop. The prosecutor-general does not have to break the law for us to demand his dismissal. Our bitter sense that he is a reason why justice had not been served is sufficient cause. In a country whose people have toppled a tyrant and then its military heir, in a country whose revolution toppled a tattered constitution, it is impossible to justify, by law, the retention of a prosecutor-general who has become, for many, a part of the past. Mr Prosecutor-General, There can be no peace or stability without justice. We do not trust that justice will be served as long as you remain in your post. We ask you to leave, and please take your assistants with you. The writer is a prominent human rights lawyer.
