Egypt - The Judiciary, Civil Rights, and the Rule of Law

More about the Government and Politics of Egypt.

The judiciary, civil rights, and the rule of law

The Egyptian legal system was built on both the sharia (Islamic law) and the Napoleonic Code introduced during Napoleon Bonaparte's occupation and the subsequent training of Egyptian jurists in France. Until they were abolished in the 1940s, consular courts and mixed courts (of foreign and Egyptian jurists), products of the capitulations, had jurisdiction over cases involving foreigners. Until the l952 Revolution, there was a separate system of religious courts that applied the law of personal status, ruling in matters of marriage, divorce, and inheritance. Sharia courts had jurisdiction over Muslims while the Coptic minority had its own communal courts. Under the republic, religious courts were abolished and their functions transferred to the secular court system, although religious law continued to influence the decisions of these courts, especially in matters of personal status. In 1990 Egypt's court system was otherwise chiefly secular, applying criminal and civil law deriving primarily from the French heritage. In the 1970s and 1980s, however, Muslim political activists had fought with some success to advance the impact of the sharia in adjudication; for example, they were influential in reversing a liberal law of personal status decreed under Sadat that had expanded the rights of women. They also achieved the passage of a constitutional amendment making the sharia in principle the sole source of legislation, a potential ground for ruling unconstitutional a whole corpus of secular law.

Under the Constitution, the executive is prohibited from "interfering" in lawsuits or in the affairs of justice. Judges are appointed for life and cannot be dismissed without serious cause. This provision did not deter Nasser from a wholesale purge of politically hostile judges in the late 1960s, but his action was the exception. Under Sadat, who sought to replace revolutionary with constitutional legitimacy, the role of the judiciary was largely respected. Although often annoyed by their rulings in political cases, Sadat eschewed any purge of judges and resorted instead to the creation of exceptional courts for political offenses; for its part, the judiciary was able to ensure that a majority of appointees to these courts be trained judges. The presidency, nevertheless, continued to enjoy considerable influence over the judiciary since judicial appointments are a presidential prerogative. Judges were considered functionaries of the Ministry of Justice, which administered and financed the court system. The president headed the Supreme Council of Judicial Organs, which established regulations governing the judiciary.

The base of the court system was made up of district tribunals, single-judge courts with jurisdiction over minor civil and criminal cases. (Minor civil cases involved less than �E250, and minor criminal cases were punished by less than three years' imprisonment.) Over these there was in each governorate at least one tribunal of first instance, which was composed of a presiding judge and two sitting judges. These tribunals of first instance dealt with serious crimes and heard appeals from district courts. Seven higher-level courts of appeals in Cairo (Al Qahirah), Alexandria (Al Iskandariyah), Tanta, Asyut, Mansurah, Ismailia (Al Ismailiyah), and Bani Suwayf were divided into criminal and civil chambers; the former tried certain felonies, and the latter heard appeals against judgments of the tribunals of first instance. The Court of Cassation in Cairo heard petitions on final judgments rendered by the courts of appeals, made on grounds of defective application of the law or violation of due process. It had a president, fifteen vice-presidents, and eighty justices. Alongside these courts of general jurisdiction were special courts, such as labor tribunals and security courts, headed by the Supreme State Security Court, which heard cases involving political and military security. A three-level hierarchy of administrative courts adjudicated administrative disputes among ministries and agencies and was headed by the Council of State. The Office of the Public Prosecutor, headed by the attorney general and staffed by his public prosecutors, supervised the enforcement of criminal law judgments. At the apex of the judiciary was the Supreme Constitutional Court made up of a chief justice and nine justices. It settled disputes between courts and rendered binding interpretations in matters that were grave enough to require conformity of interpretation under the Constitution.

The rule of law expanded in the post-Nasser era, and judges became a vigorous force defending the legal rights of citizens against the state. Nonpolitical personal rights, much restricted under Nasser, were effectively restored under Sadat. It was a sign of the new political climate he fostered that not only were private property rights considered inviolable but also the courts proved zealous in defending the rights of those charged with abuse of public property. Political rights were less secure. In contrast to Nasser, Sadat allowed private criticism of the government, but rights of public assembly were circumscribed by draconian laws against even peaceful protest and the distribution or possession of "subversive"--normally leftist--literature. Although the courts frequently dismissed charges on such offenses, those arrested nevertheless often spent much time in jail, nor have the courts been able to restrain the regime when it wanted badly enough to end dissidence. While Islamic radicals have been regularly subjected to arbitrary arrest, the most dramatic case of the "iron fist" was the 1981 crackdown when Sadat arrested about 1,500 of Egypt's most prominent public figures.

Under Mubarak the independence of the courts and their role in expanding constitutional rights and procedures grew. Courts overturned a ban on the New Wafd Party, threw out the Electoral Law of 1984, and declared unconstitutional a Sadat decree issued in the absence of parliament. Judges expanded the scope of press freedom by dismissing libel suits of government ministers against the opposition press and widened the scope of labor rights by dismissing charges against strikers. But the regime saw fit to ignore a Supreme Constitutional Court ruling that overturned the distribution of certain seats in parliament to the disadvantage of the ruling party. The Ministry of Interior continued to exercise sweeping powers of arrest and detention of dissidents and frequently ignored court decisions.

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