Summary of the annual report of 2012 "An Attack on Justice in Egypt" "Aggression on justice represents threats to the collapse of the state of law in Egypt"

Summary of the annual report of 2012

 "An Attack on Justice in Egypt"

"Aggression on justice represents threats to

the collapse of the state of law in Egypt"

Contents:

Summary of the Report

First Section: the International standards and the requirements of the independence of judiciary.

Second Section: the legislative climate of the judiciary and judicial authority in Egypt.

A- Constitutional declarations and Constitutions.

B- Ordinary legislation.

Third Section: the manifestations of friction between the legislative and the executive authority and the judiciary.

Fourth Section: physical manifestations of a violation of the independence of the judiciary.

Fifth Section: Recommendations

 Summary of the report entitled "An Attack on Justice in Egypt"

This report addressed many problems related to the independence of judges and the judiciary in Egypt, in an attempt to assess the progress made ​​in the area of judicial independence in Egypt and to assess the seriousness of such violations in terms of its magnitude and influence on the conditions of justice and its structure through which justice is managed effectively, especially after the 25^th January Revolution.

The motive behind addressing this dilemma in the report is the remarkable existence of many of the legislation and practices on the ground, which took place in Egypt after the 25^th January Revolution, which indicates that there is friction between the judiciary and its members in the face of the executive and the legislative authorities in Egypt. This friction has its effects in terms of the clash between these authorities, which often leads to negative effects towards not only the independence of the judiciary, but the violation of the principle of the rule of law as well.

Through addressing the problem of the independence of the judiciary and judges in Egypt, the report adopts some of the widely agreed and applicable international commitments and standards in this area, such as the United Nations basic Principles on the Independence of the Judiciary and guidelines on the role of prosecutors. Some of these elements and international standards are represented in the following:

First: that the realization of the principle of the rule of law, the independence of judiciary and the optimal ways to balance the legislative and executive authorities of the judiciary, which should - Pursuant to this principle - have full domination on all affairs of its members, full jurisdiction and that its members should have the right to form an organization of their own within the scope of freedom of assembly and expression of opinions in a way which ensuring the principles and structure of democracy through which justice in is managed effectively.

Second: the principle of the independence of the judiciary prevents it from being violated, whether by the power of the executive authority, or by the deviation of the legislative authority and preventing it from deviating from justice because of any lure or a threat or prejudice. On the contrary principle of the independence of justice enables justice to rehabilitation and training of its members, without isolation from the international covenants on human rights, and enables judges to in voice their opinions only in support of the weak people who have violated by powerful people. This task has great importance for the judiciary, as long as the guarantees of its independence are ensured in accordance with international standards for the independence of the judiciary which should be strictly adhered by all institutions and state agencies.

Third: the existence of an independent, impartial and effective judiciary requires not only be the judiciary and judges to be protected from any interference from other authorities, or to guarantee financial and independence, but this justice in accordance with international standards, require that the other factors of its independence represented in transparency, fairness and efficiency to be continuous including the appointment at the judicial ranks, the judicial promotions and continuous training, rehabilitation, discipline and the disposition of lawsuits and the implementation of judgments.

Fourth: The real implementation of the principles of the rule of law, independence of the judiciary and institutional reform of the judiciary according to the recognized methodologies of institutional reform in the framework the programs of transitional justice  are crucial and supportive needs for political reform, protection of public rights and freedoms in Egypt at this time, and  for consolidation of proper democratic practice, combating corruption, human development and the establishment of balanced international relations in the framework of mutual equality and respect.

According to the above mentioned factors, this report addresses the applicable and widely recognized international covenants and standards relevant to the independence of the judiciary, such as the United Nations basic Principles on the Independence of the Judiciary and guidelines on the role of prosecutors. The report also discusses some national legislation governing the work of the judiciary in an attempt to highlight the aspects of agreement and disagreement between the national legislation and international covenants in this area.

The report does not also overlook addressing national legislation to assess the legislative climate of the judiciary, including legislation before and after the 25^th January revolution, particularly because the system  before the 25^th January revolution, due to achieving the goals which are not relevant to the good functioning of justice, for political purposes has intentionally overlooked, many of the elements of the independence of the judiciary and the judiciary to the extent of the lack of the criteria for selecting members of the judiciary, for example, the erosion of the standard of efficiency as a clear criterion in the matter of appointment in judicial bodies, using transfer, deputation and secondment as mechanisms of the executive authority to punish or reward judges. Moreover, the implementation of the provisions becomes depending on the acceptance of the executive authority and several lawsuits are frozen in the face of those involved in human rights violations. Many dilemmas and practices, which lasted over the past thirty years, made the demand for institutional reform of the judiciary, like other state institutions, an urgent and revolutionary demand, in parallel with the full commitment to the principle of the rule of law.

It was obvious and necessary for the system after the revolution, and during the transitional phase experienced by Egypt to support the principle of the rule of law to confirm its elevation from all the authorities in order not to comply with its desire and not to enslave its ambitions, but to be subject to the law, to comply to the citizens, to promote their rights and freedoms, to assert the independence of the judiciary and to ensure its impartiality, in the framework of its independence and immunity  in order to accounting the authority, even in the most accurate and most dangerous tasks.

The report, in this context, monitor some practices of the executive authority, whether taken the form of constitutional declarations or actual practices, as well as legislation and bills issued by the legislature, which provide for the existence of orientations from the above mentioned authorities to prejudice the independence of the judiciary and judges in Egypt.

 

The report reached through follow-up and monitoring of the manifestations of prejudice the independence of the judiciary and judges after the 25^th January Revolution some of the results as follow: -

First: The attack on the judiciary in Egypt in 2012 is the most serious since sixty years and the most influential on the course of justice in Egypt and has led to the collapse of the state of law in irreversible manner in that stage

Second: in spite of the revolutionary demands, the demands of juristic rights and the need for institutional reform in the context of ensuring full commitment to the independence of the judiciary, especially in this transitional phase, but the institutional reform of the judiciary, took turn dominated by prejudice the guarantees of the independence of the judiciary and it aims to dominating the judicial institution not reforming it.

Third: The practices against the judiciary are vengeful or at least selective, devoid of any approach of institutional reform, and breach seriously the main principles, and prejudice the independence of the judiciary, as if it were an organized attack on justice in Egypt.

Fourth: The wide scope of threats suffered by justice in Egypt, and the lack to take the necessary procedures and measures by the relevant authorities for the protection of the courts and the Justice's building.

Fifth: judges are exposed to threaten their right to life and physical integrity and to prevent them from performing their profession.

Sixth: the frequency of breach of the principle of immunity of judges and their inability to displaced, and breach of  their guarantees relevant to their stay in office.

Seventh: The wide scope of cases which represent unsuitable interference in matters not only related to judicial affairs, but also related to the investigations and prosecutions.

Eighth: many aspects of breaching the independence of the judiciary are demonstrated, either through legislation or through the executive authority, including as will be detailed in the body of this report:

1- Attempts of the members of the parliament to prejudice the independence of the Supreme Constitutional Court and limiting its powers and its jurisdiction in supervising the constitutionality of legislation.

2- The lack of executive authority to respect the implementation of court rulings issued by the Supreme Courts.

3- The Continuous attempts by the executive authority to manipulate judiciary powers and preventing it from considering specific cases.

4- Exclusion of the judiciary and looting its role in monitoring the work of the executive authority, and fortifying it from the judicial oversight.

5- Prejudice the independence of the Public Prosecution and interference in its affairs, as well as the siege of prosecutors in order to influence the course of investigations.

6- Improper interference from the executive authority in the conduct of investigations and attempts to breach impartiality of the public prosecutor.

7- Administrative prosecutions of judges because of their performance of their profession.

8- The siege of Courts and the threat of its judges and prevent them from performing their profession.

9- The emergence of cases of assault by citizens and outlaws on the courts and prosecutors.

10- The continuous referral of civilians to military courts.

 

 

The report concluded a set of recommendations as follows: -

1. The need to take all constitutional measures in order to lead to the deletion and amendment to all articles related to the judiciary in the Egyptian Constitution so as to eliminate all violations occurred to the judicial institution to ensure its independence according to the international standards. 

2. Work to give the judiciary the power to supervise the constitutionality of laws, recognizing the competence of the Supreme Constitutional Court in supervision on all laws without exception, and taking into account the commitment of the comments made by the Constitutional Court of the on the matters referred to it including the bills.

3. The abolition of all power or authority of the president of state or the Minister of Justice in any affairs of the "justice" and the Ministry of Justice and Ministry should be ministry of State that coordinates between the executive and the judicial authorities.

4. Excluding the power of the President of the Republic and the Minister of Justice completely from decisions related to appointment of judges and that the appointment of judges and prosecutors should fall under the jurisdiction of the Supreme Judicial Council, and the higher councils of the judiciary.

5. Complete separation between the prosecution authorities in the investigation or indictment and restrict its role to indictment only.

6. The selection, appointment, promotion, transfer and accountability of judges should be the responsibility of the judiciary through a judicial supreme council composed of senior judges.

7. Immediate cessation of civil trial before the military judiciary and not be invoked by the judgments issued it in violation of the rules of fair trial.

8. Subjecting the president's decision to declare a state of emergency to judicial oversight and preventing him of referring any type of lawsuits to special, exceptional or military courts.

9. Prohibiting and criminalizing all forms of influence on members of the judiciary or induce them either in the form of secondment or in the form of appointing them in administrative or political positions in various organs of the State.

10. Canceling the decision of appointing the new Attorney General and putting rules which provide for choosing the Attorney General by the Supreme Judicial Council from among one of the Vice-President of the Court of Cassation, one of the Vice President of the Cairo Court of Appeal, or one of the attorney general, provided that they are all exercised this position for a period of 4 years.

11. Allocate a special budget for the judiciary, separate from the state budget, taking into account the provision of salaries and allowances of the judges commensurate with their positions in the administration of justice and to protect them from seeking to find additional sources of income by appointment in alternative jobs or the temptation of bribery. The budget provides the necessities of judicial work including the courts, decent staff and workers, police, recording, print, documentation and computer devices, etc.

12. Selection and appointment of judges from qualified and trained cadres who have good reputation and integrity whether males and females and the establishment of institutes for the training of judges in all stages.

13. Ensuring the term of the judge's mandate and his continuance in office until the age of retirement and the inadmissibility to modify this age for or issuing constitutional provisions designed to displace judges from their offices.

14. Taking the necessary measures and actions related to securing the buildings of courts, protecting the right of judges to physical integrity and the right to life, and stiffen penalties on attacks taking place in the courts and public prosecutions.