Wednesday, January 23, 2013

Egypt 2013 Panel Discussion- Kansas University (3)

How far did the clash between the Egyptian President Mursi and the Judiciary harm the future of the rule of law in Egypt? I argue that this clash led to an irreparable harm. The separation of powers is one of the main catalysts in promoting the "rule of law" culture. So far, it seems that Mursi's loyalty to the Muslim Brotherhood (MB) continues to prevail over his loyalty to the non-MB citizens who voted for him and definitely to the Egyptian citizens who did not vote for him but thought the Brotherhood's candidate is sincere in his promises about being President for all Egyptians, whether they vote for him or not. The MB is interested in spreading its leaders inside the country's institutions and it is counting on Mursi's power of appointments to achieve this. What seems missing in the MB plan is there is that Mursi's power of appointments within the Executive branch is not the same for legislative appointments or for, what is relevant to this discussion, judicial appointments. 

I would not claim that the Judiciary in Egypt is perfect. It has a lot of problems and must go through deep reforms at many levels. The structure of the Judiciary is one of these issues as it creates a lot of ambiguities and allows unnecessary conflicts of jurisdictions. The judicial complex in Egypt consists of different bodies entrusted with different tasks. This complexity weakened the Judiciary against other branches of government. Since the 1952 Coup d'Etat, Egypt was introduced to a culture of rule by law as opposed to rule of law and while the judges were striving for Judicial Independence, “Egypt’s authoritarian presidents hardly fostered the rule of law.” Justice Hossam El-Gheriany, a senior leader in the Judicial Independence movement during Mubarak's regime, former head of the Court of Cassation and head of the Constituent Assembly writing the draft of the 2012 Constitution, expressed this fact in a famous statement. In the mid of the the American NGOs crisis, he stated that Egypt knows independent judges but not an independent judiciary

In brief, it would be inaccurate to describe the judiciary as corrupt. The Judiciary struggled for separation of powers to the limit that Professor Chibli Mallat, a prominent Arab scholar and a visiting professor of law at Harvard Law School, in his article “Revising Egypt’s Constitution” seemed willing to entrust the Judiciary to lead the transition process, considering that it is the “only group that meets the required democratic expertise and the detachment from executive and legislative positions.” To conclude, it would be wise if Mursi restructures his relationship with the state institutions to promote the rule of law.