EGYPT – When al-Sissi’s Justice jails the Revolution


The democratic transition in Egypt is in the throes of a frustrating fiasco, nearly five years after the aspirant January 2011 uprising. In the light of the events that followed the ousting of ex-president Mohamed Morsi by a “popular military coup”, it was long argued that the political regime has used the judiciary as a “spearhead” and a political facade in its repugnant crackdown on political opposition and civil society. Has the judiciary turned into a political “cult”?

Some have also claimed, like Prof. Sahar Aziz of Texas A&M University School of Law, that the judiciary in Egypt has been cooperative with the regime in its ongoing campaign of curbing the free practice of civil liberties and suppressing the political dissidents because “the current political climate makes it too costly” for the judiciary to challenge and defy the executive’s interests.

This narrative also suggests that the prolonged “cooption” of the judiciary with the political regime in Egypt resulted in the transformation of the judiciary to a conservative body that bolsters the political stability of the regime over any “radical” demands of socio-political reforms.

However, others contend that this disruptive judicial “cooption” with the interests of the political regimes in Egypt is not only caused by the continuous governmental encroachments on the work of the judiciary, but also because of the structural nature of the judiciary and the embedded conservative mentality of its members.

This article aims to address the dynamics of the composite relationship between the judiciary and the incumbent military-backed government by analysing the lasting effect of the Nasserist era on the judiciary and what role the judiciary authoritatively played towards transforming the Egyptian judicial system into a “political cult” that enjoys a “distinctive corporate identity”.

Nasserism as apolitical legacy of the Egyptian Judiciary

In his article After Nasserism (Part 2), researcher Amr Adly argues that the “Nasserist legacy” of the modern Egyptian state surpasses the alterations of the foreign and domestic policies of the political regimes in Egypt since 1952, as it has eventually become a “social identity” that has long defined the political legitimacy of the regime and shaped its complex relationship with the various social players.

Adly concludes that the incessant failure of the democratic forces to present themselves as a veritable political alternative to the current military-backed regime cannot only be seen in light of their inability to promote a political rhetoric that condones and encompasses the demands of the January uprising, but also by the deep dissension of these demands with the conservative public longing for the Nasserist era.

The consecutive cabinets that followed the toppling of Morsi’s administration have employed heavy-handed tactics in their crackdown against political dissent in Egypt, largely in the name of “strengthening the Egyptian state” in its war against “terror”. The victorious factions of the June 30 movement dominated the political scene ever since.

Remarkably, during the unprecedented mass protests in 2013 that managed to topple Morsi’s administration, the anti-Muslim Brotherhood political propaganda has been remarkably propagating the “modernist” legacy of the “Nasserist” era to mobilise people in large numbers against the “reactionary” brotherhood and their Islamist proponents.

Since the June 30 events have dominantly forged the political status-quo, it is important to underscore the historical prelude that dates back to the summer of 1952, which have ultimately led to the current political impasse, but more importantly to better apprehend the nature of the judiciary’s role in the current strife.

Sherif Younes, History Professor in Helwan University, argues that the “Free Officers” movement that came to power in 1952 lacked the required “political legitimacy”, in brief, because of their genuine discontent with the political parties and their contempt to the civilian rule in general.

As the army officers were well-aware of the consequences of this “political void”, they sought swiftly to approach the “bureaucracy” for political support, as well as the judiciary that will gradually turn into a “political cult”.

In his profound studying of the history of the “Judicial Elite”, Amr Al-Shalakany,Professor of Law in the American University in Cairo, argues that the Nasserist regime has long maintained a composite relationship with the judiciary and claims that the political harmony between the military generals and the most prominent judicial figures in the period of 1952-1954, has indeed shaped the judiciary’s relationship with the regime for the next six decades.

The recent executive encroachments and dominance over the judiciary can find its deep roots in the history of the Nasserist era from 1954-1969, as the regime sought to strip the judiciary from its jurisdictions, first by creating special circuits with extraordinary powers to try exclusively the political and religious dissent, then by extending the executive’s control over the judiciary by supplanting the dissenting voices with regime loyalists, and finally by creating supervisory government bodies that oversees and supervises the judicial appointments as well as controlling its fiscal budget.

Mubarak’s 30-year tenure has further strengthened this complete dominance over the judiciary as his regime intensified the “judicial self-restraint” and discouraged any sort of “judicial activism” by hiring more police academy graduates into the judiciary and by assigning regime-friendly judges to “sensitive” cases involving the regime’s core interests, as Sahar Aziz argues.

Moreover, Nathan J. Brown, Professor of political science and international affairs at the George Washington University, argues that “the frequency of multiple-judge panels, extensive rights of appeal, judicial control over matters of appointments and promotion all coupled with the fact that the judiciary has become a ‘lifetime career’ that is passed from ‘father to son’ are vital reasons to suggest that the judiciary has been enjoying a very strong sense of ‘corporate identity’ ”.

Thus, it is fair to suggest that the judiciary’s piecemeal “cooption” with the political regime have always sought to lay to rest any social or political dissent that didn’t serve the regime’s best interests in order to “insulate” the society from itself mainly not only to belay its political loyalty to the state but also to help maintaining its corporate identity.

This prolonged judicial “cooption” with the political regime was further consolidated by the dominance of the conservative tendencies inside the judiciary that believed that as much as the judiciary can isolate itself from the executive and its continuous encroachments, it can hardly distance itself from the “state”. This has caused a severe corrosion in the functionality of the judiciary and has ultimately transformed it into a lenient politicalorgan that would intuitively favour the preservation of its courtship to the regime as the only way to maintain its core existence.

The judiciary: A political foe?

In the summer of 2005, months before the presidential elections that would see former president Mubarak fraudulently winning his last presidential term, a group of senior judges who have recently won the elections of the “Judges Club”, an unofficial judicial institution, to form the “independence current” movement that has gained a huge political momentum, in part due to its demands of reducing the executive control over the judiciary.

This came at a critical time for the Mubarak regime when his plea to hold the parliamentary elections under judicial oversight was challenged by a popular movement that took to the streets to protest the executive dominance of the judiciary and to demand extra measures to ensure the independence of the judiciary.

However, the demands of this movement have been quickly contained by the regime as the “independence current” were humiliatingly defeated in the elections of the “Judges Club” four years later.

Although many concluded that the “current’s” loss was due to the government smear campaign on their movement, Sherif Youness fairly argues that the conservative nature of the judiciary and of the members of the movement itself, alongside with its elitist demands, have all contributed to the containment of the movement that has failed to seek “copious” public support to their demands.

In the aftermath of the January 2011 uprising, the judiciary found itself compelled to embed its “political identity” in the face of a popular campaign that called for an immediate process of judicial reformation, that has far exceeded the demands of the 2005 movement. It had become evidently clear that the demands of the uprising stand in complete discrepancy with the profiteering nature of the judiciary and its conservative judges, even for the members of the “independence current”. This discrepancy will be further emboldened by the Brotherhood seizure of the presidency.

During Morsi’s year in office, his government sought to extend its control over the judiciary by proposing legal amendments to reduce the retirement age of the judges, issuing a presidential decree to sack the prosecutor general, disregarding the Supreme Constitutional Court’s verdict to dissolve the parliament, prompting a judicial “uproar” in the light of Morsi’s infringements on the judiciary.

Notably, Morsi’s judicial entourage included a number of figures of the “independence current”, who oversaw his loathsome encroachments on the “judicial independence”, which shows that the struggle inside the judiciary was not entirely supportive of its complete independence from the state.

The Brotherhood propaganda that depicted the judiciary as a “reactionary force” and a “remnant of the Mubarak regime” has antagonised the conservative judicial currents, and has reignited its allegiance with the army-led regime after the ousting of Morsi. The judiciary, out of fear of Morsi’s scaremonger approach,  started to act as an independent “political player” that can publicly protest the regime’s policies.

Towards the end of Morsi’s tenure, it became clear that the fight between the two dominant factions inside the judiciary, the pro-Morsi/MB sympathisers and the pro-state loyalists, has promptly shaped the judiciary’s “political identity”, as the two “overly-politicised” camps have drastically turned the judiciary into a genuine political cult, paving the way for its active participation in the crackdown on its “political foes”, mainly quelling on the 2011 uprising figures.

In other words, the ousting of Morsi signaled a moment of political repositioning for the judiciary that has in turn seized the chance to revive its efficacious allegiance with the state, and ever since, the judiciary has institutionally has mainly struggled to preserve its politically “corporate identity” to augment its untouched draconic powers.

This was best manifested in the controversial affirmation of the head of the Supreme Judicial Council during the “Judges Day” celebration, in the presence of president Sisi, that “the judges stand against the attempts of intervention from some countries against the judiciary”, reaffirming the judiciary’s supportive stances to the political regime in its fight against “terror”.

Unsurprisingly, the judiciary’s campaign against public dissent started by cracking down on its “insurgent” members who, for their sympathy to the brotherhood, were either set to retire or to be removed from their positions.

Accordingly, a number of judges, known for their sympathy to the brotherhood, were first banned from traveling due to their support to the ousted “Morsi” regime after the submission of a security “report” that alleged that the judges, members of the “Judges for Egypt” movement, have formed an “illegal group” for “stirring sedition among the ranks of judges and threatening public security”.

Then, a group of 7 judges to were set to retirement as a consequence of their declaration of the results of the presidential elections in 2012 before the official declaration by the Supreme Electoral Commission, followed by a similar decision to sentence a judge to retirement due to his presence in the pro-Brotherhood protests in July-August 2013.

Meanwhile, the judicial disciplinary bodies have turned a blind eye to the mounting complaints against Judge Nagui Shehata, best known for his harsh judgments on political activists and Islamist figures, who took to his personal Facebook page to express openly his contemptuous opinions of the Brotherhood and of the January 2011 uprising.

However, Judge Zakaria Abdel Aziz, a prominent figure of the “independence current”, was referred to investigation in the light of his alleged role in inciting the break-into the “State Security” premises in early March 2011.

This campaign was in parallel to the creation of “special networks/circles” to try high-profile cases, a recurrence of the Nasserist policies, mainly directed against the political dissidents and Islamist opposition. These trials and the scandalous verdicts haven’t met the minimal standards of justice and “fair trial” which further legitimised the international criticism of its dependence on the state.

Finally, the judiciary started to react in retaliation to the political forces of the January 2011 uprising by focusing on targeting a number of human rights defenders and activists, like Ahmed Maher, Alaa Abdel Fattah, and Yara Sallam, by speedy trials that ultimately aim to punish these activists for their alleged roles in organising large protests against the infamous “protest law”. The judiciary’s crackdown extended also to the subduing of the active local NGOs and the dissolving of political movements.

What’s next for the Egyptian judiciary?

For the past two years, judges have been directly assaulted by “extremist” groups in a number of attacks that aimed at retaliating against the recent flow of judicial verdicts that imprisoned thousands and sentenced hundreds to death in speedy trials that were assigned to judges who have been supportive of the regime.

This recent shattering disregard of the “rule of law”, largely sponsored by the judiciary itself, jeopardises the core existence of the judiciary all together, as its current alliance with the state makes it susceptible of “political vendetta” as it will be viewed as a “political adversary rather than “an arbitrator of conflict”.

The recent appointment of Ahmad Al Zind, as minister of Justice, underscores the fearsome repercussions of the deepening of the judiciary’s “political identity”. The appointment of such a notorious figure, known for his loyalty to the regime, also signals the victory of the pro-state faction over their pro-Morsi and the reformist adversaries.

This current impasse should promptly invite the judiciary to acknowledge the need to prove its ultimate dedication to the promotion of the “rule of law” and to properly address the issue of “judicial politicisation”, by first denouncing its odious allegiance with the state by distancing itself from the current political strife.

Furthermore, the supreme judicial council should take prompt actions towards the endorsement of the proposed amendments of the “judiciary law” to put an end to the involvement of the ministry of justice in the assignment of judges.

Also, the judiciary should consider the earlier suggestions of creating a body that is independent of the executive to be responsible for disciplining judges, adopting measures to remove any other influence by the ministry of justice over the judicial work, and finally adopting guidelines governing the use of prosecutorial discretion to initiate cases.


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Mostafa SHAAT

Researcher in International Law of Human Right - Law and Society Research Unit in the American University in Cairo (EGYPT)

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