Facts
On Sunday, the Justice Minister summoned the two senior judges to appear before a disciplinary board (
magles ta’dib), a very grave procedure that surpasses a warning (
tanbih) and leads to one of two possible outcomes: censure or dismissal. The specific charge against the two judges is slandering another judge by falsely accusing him of complicity in rigging elections. Be it noted: this is the first time in Egyptian judicial history that judges of this rank have been disciplined. Even the notorious August 1969 “massacre of the judiciary” steered clear of this procedure, instead retiring or transferring 189 judges to non-judicial posts under the rubric of “judicial reorganisation.”
The two justices in question are high-ranking members of the Cassation Court, and as such count among the crème de la crème of the Egyptian judiciary. Alexandrian Mahmoud Mekky and Cairene Hisham al-Bastawisy have also long been active in the judicial independence movement. They are not elected members of the Judges Club board but serve on the 21-member committee entrusted by the Club to produce an assessment report on the autumn 2005 parliamentary elections. Both are highly effective spokesmen for the cause, with a penchant for precision and clarity of expression and an unwavering commitment to judicial collective action for a new law, and full supervision over elections.
Let’s remember that this very dramatic escalation comes at the end of a long train of harassments that began in 2004 with the
warnings issued to Hossam al-Ghiryani and Mahmoud Mekky’s older brother Ahmed, followed by the November 2005 order by the Supreme Judicial Council to
refer 10 judges to interrogation for their outspokenness about election abuses, to the
February-
March 2006 orders of the SJC to strip seven judges of their immunity as a prelude to interrogation by the State Security prosecution.
Bastawisy in particular has been tagged in each and every one of these procedures. It’s pointless to speculate on precise reasons why, given the extraordinary amount of misinformation, rumour, and conflicting reports flying about, but one thing is clear: Bastawisy is a very capable, articulate, and bold judge who made a strategic decision in 2005 to take the judges’ case to the public and link it to the cause of clean elections. For years, he has worked avidly for a regional Arab Judges Union, and schooled scores of young judges in the doctrines of judicial independence and separation of powers before his stint as lecturer at the National Centre for Judicial Studies was terminated. In 2005-06, he has been a model of dogged perseverance, unfazed by truly crushing pressures and the criticisms of some in the profession who believe that his conduct deviates from judicial traditions.
In a distinct but related development, the Supreme Judicial Council has granted its permission for the interrogation of Alexandria Judges Club board member Mahmoud Abou Shousha (b&w photo above). The permission was granted after a complaint filed by one Ezzat Agwa against Abou Shousha for the latter’s allegedly slanderous remarks against Agwa uttered at the December 16, 2005 Judges Club general assembly. Ezzat Agwa of course was the long time incumbent president of the Alexandria Judges Club and close pal of certain government ministers until his ouster in the 2004 Club election and defeat in another election a year later, both of which saw the victory of reformist Mahmoud al-Khodeiry. Agwa’s name is included on the “blacklist” of judges alleged to have colluded in rigging elections, a list put out by the Bar Association board. There’s no word on why Agwa waited four months to file his complaint. All that we know is that at 34, Abou Shousha is one of the youngest members of the judicial independence movement, a natural orator with an engaging, calm demeanour and a razor-sharp mind who inspires other young judges to join the cause.
Finally, distinguished senior Cassation Court justice Hossam al-Ghiryani,
no stranger to harassment, has also been fingered. He received a phone call from the technical bureau (
al-Maktab al-Fanni) of the Cassation Court summoning him for an interrogation before the president of the Court regarding supposedly dozens of unspecified and anonymous “complaints” against him. Incredible as it may seem, anonymous grievances are currently enough to subject an Egyptian judge to interrogation and potential disciplinary proceedings.
Context
The pattern governing all of the actions this week is clear: the regime is leaning on certain judges to activate seemingly unobjectionable procedural mechanisms to punish prominent reformist judges, who are portrayed as errant deviants undermining the stature and integrity of the judicial profession. Now, there is a real rift between Egyptian judges, particularly visible in the last four years. This rift widened into a yawning chasm after the parliamentary elections, as reports swiftly circulated telling of certain judges colluding to fix results in the critical districts of Damanhour, Madinat Nasr, Quellin, Doqqi, and Kerdasa, to name but a handful. Bastawisi and Mekky rightly assert that they have never accused any of their colleagues; indeed, the Club committee preparing a report on parliamentary elections is still not finished precisely because it is scrupulously compiling reliable data on the vote count at each and every auxiliary polling station in each of the contested districts. However, this investigative work is itself perturbing, and judges whose initials appeared on the Bar Association’s blacklist have had their reputations sullied and wish to silence their colleagues.
It just so happens that the minority of judges who are ruffled by the bold leadership of the Judges Club have strong ties to legal personnel in the executive branch, so they are an exceptionally well-connected minority. Both groups have been colluding to undermine, fracture, demoralise, frighten, and otherwise confuse reformist judges by a variety of mechanisms. The problem is that none of these seem to be denting the resolve or support of the pro-independence coalition. For example, take the manoeuvre to piece together a pro-regime judicial counter-coalition in the form of a presidium of “presidents of appeals courts.” As Zakariyya bey Abdel Aziz said, “I don’t know what that is.”
Indeed, there is no such thing in Egyptian judicial structures, it’s an invented entity designed to mobilise judges against the Club’s leadership as a prelude to eventually unseating them. On 29 March, this entity convened a meeting of about 130 judges; the sole item on the agenda was to “discuss the appearance of several judicial colleagues on satellite television channels.” On 2 April, they issued a statement that rebuked “some judges who wish to impose themselves with loud voices and inappropriate expressions…the judiciary is the judiciary, if you don’t like it, then resign and work in politics as you wish, so that judges don’t become a vehicle for political ends.”
The statement was also keen to lambaste the proposed meeting between the Judges Club board and the American-based organisation Human Rights Watch. As we know, there was an insane panic in the corridors of power about this meeting, leading the government to unleash a pathetic, hopelessly amateurish smear campaign against both the Club and the rights organisation, even as the hapless Ahmed Nazif met with its delegation and received a humiliating dressing-down. Could it be that this mammoth regime armed to the hilt with “New Thought,” “women’s empowerment,” and all those other Western-friendly slogans is mighty scared of some judges? Truly, I feel for Mr Nazif. It must be so difficult waking up every morning knowing what quantities of self-abasement the day holds.
But back to our story. I’ll wager that the manoeuvre to construct a critical mass of judges to discredit the independence movement will fail. Here’s an indication: on 7 April, internal elections of the Mansoura Judges Club returned a victory for the reformist camp. Hussein Qandil won the presidency of the Club, receiving 241 votes, while Mahmoud Siddiq Berham garnered 106. Qandil’s slate also captured three out of the four board seats up for election. Berham heads a circuit of the Cairo Appeals Court and is active in the effort to malign the independence movement and its leaders.
More Facts
There’s no clearer testament to the urgency of a new judiciary law than the summons meted out to Bastawisy and Mekky. Consider: the existing law specifies that the disciplinary board’s verdict be announced in a secret session, and that it cannot be appealed “by any route,” (Article 107). The Judges Club proposed law stipulates that the verdict be announced in an open session, and that it be subject to appeal before a special circuit of the Cassation Court. Judges note the irony that all ordinary litigants are granted the opportunity to appeal court verdicts, while judges are not availed of the same opportunity when it comes to their own affairs.
The existing law says that the disciplinary board is to be composed of seven members: president of the Court of Cassation serving as president, the three most senior presidents of appeals courts, and the three most senior Cassation Court justices (Article 98). First, we know that the actual persons who hold these posts now are simply incapable of ruling fairly on the “competence” of any reformist judge. President of the Cassation Court Fathi Khalifa has been violently and publicly sparring with reformist judges for at least four years, and presidents of appeals courts are now trying to bypass the existing, legitimate judicial representative institution (the Judges Club) by constructing a phony body as a counterweight. The Judges Club draft law proposes a different composition for the disciplinary board that addresses potential conflicts of interest.
But the root cause of the problem remains: Article 111 of the existing judiciary law empowers the Minister of Justice to refer any judge to a disciplinary board. Correcting this glaring violation of separation of powers has not been among judges’ demands, both because this prerogative has not been used before and because there are other, more pressing executive violations of judicial independence that they’ve experienced and seek to fend off. Now, in 2006, the hypothetical has become real. As crises often do, this one is bound to sharpen judges’ demands and add to the list of abuses from which they seek deliverance.
Significance
It’s easy to become entangled in the absorbing details of this never-ending story and forget why it all matters. To me, the real gravity of what we’re witnessing today transcends the battle for a truly independent judiciary, as irrefutably crucial as that is. Independence of the judiciary is not enough to realise democracy, nor is it a synonym for democracy. Democracy hinges on the capacity of citizen groups to form freely and govern themselves, unencumbered by the grasping claws of the state. The Judges Club saga is especially riveting because it concerns a very special group of citizens, those who are at once members of and watchdogs over the state.
But the fundaments of judges’ struggle are the same for other citizen associations currently in the throes of their own projects of autonomy. Witness one unfolding right now before our eyes: Egyptian engineers and their truly epic efforts to take back their union from a decade of enforced hibernation and decay (and surely we all know how superior Egyptian engineers are, don’t we?!). And Egyptian professors acting collectively to wrest their campuses from the stultifying grip of security forces and their vile academic collaborators. And Egyptian journalists finally cognisant of the president’s phony “promise” to abolish imprisonment for press offences. And Egyptian physicians who have been emboldened by judges to hold similar stands outside their union. And let’s not forget Egyptian actors, who in a less publicised but critical election last December threw out their own ossified leaders, including the intolerable presidential sycophant Yusuf Sha’ban, and voted in the honourable Ashraf Zaki as union president and fresh, new members to the board.
I can’t think of a truer observation about this whole drama than one penned years ago by a perceptive scholar, yet ever resonant today: “Egypt’s rulers have harboured an enduring suspicion of organised professionals.” 
The incredible Wael Abbas has captured on video security forces' disbanding of the peaceful vigil in support of judges maintained by Kifaya, al-Ghad, Freedom Now, and allied civil society groups. Amid screams, sobs, and cries of "Down with Hosni Mubarak," "Down with Habib al-Adli," riot police cornered protestors as plainclothed agents removed them one by one. In a final, eerie scene, police peeled off the huge Egyptian flag that demonstrators had strung up to frame their vigil.
