During the last quarter of 2013, Egypt’s Supreme Judicial Council (SJC) announced the exclusion of 188 individuals from their appointments as assistant prosecutors, citing their affiliation with political organizations – most prominently, the Muslim Brotherhood.[1] Appointment as an assistant prosecutor is considered the first rung in the ladder of becoming a public prosecutor, and a necessary entry point into the Egyptian judiciary.

The SJC had actually selected the now-excluded candidates (along with others) for these positions during the rule of former President Mohammed Morsi, and sent the list of those appointed to the president for approval in June 2013. However, the June 30 protests prevented their approval.[2] The SJC was re-formed following Egypt’s transition of power in 2014; it was announced that candidates would be re-vetted  before the 2013 decision to exclude them was upheld.

Subsequently, the appointees were quick to deny what was ascribed to them, declaring that in reality, they had been excluded because “one of their parents did not have a post-secondary education, and that they were not socially fit” – as their appointments had been replaced by the appointments of the sons of judges, influential individuals, and senior officials.[3][4]

In doing so, they indicated that they had been excluded not for political reasons, but due to class considerations and nepotism practices that are prevalent within the judiciary. A number of them affirmed that they had achieved high [academic] standing. They resolved to challenge their exclusion before the Administrative Court, which has postponed its consideration of appeals to its session on August 3, 2014.[5]

This news, and the anticipated responses and reactions to it, prompt three basic questions: the first is with regards to the exploitation of resentment toward the Muslim Brotherhood, in order to exclude a number of those put forward for the Public Prosecution, despite their eligibility; the second concerns the continuation of the practice of hereditary succession within the judiciary; and, the last relates to the future of women’s appointments to the judiciary.

Is the SJC Exploiting anti-Brotherhood Sentiments to Favor Factional Considerations Over Equality and Competence?

Based on the evidence, it is clear that the Council excluded candidates that had been approved during Brotherhood rule, immediately upon the end of that rule. It announced its decision in two stages: first, it announced that the security apparatus will conduct inquiries into those whose affiliation with the Brotherhood was in question; in the second stage, candidates whose affiliation had been established would be declared disqualified.

The Council took advantage of resentment toward the Brotherhood at the time – including widespread claims of its attempts to “Brotherhood-ize” (akhwana) state institutions, including the judiciary – in order to exclude the 188 individuals on the pretext that they were affiliated with the Brotherhood. This is in spite of the Council’s previous statement on the findings of the inquiries, which found only 73 of them to be affiliated with the Brotherhood.[6] This strengthens the argument of the excluded judges, that “Brotherhood-ization” (“akhwana”) is just a pretext in the service of other aims related to class and inherited judicial office.

In Egypt today, affiliation with the Brotherhood has become tantamount to a stigma. It can lead a person to be forced out of their job or justify a refusal to employ them, or even shut down their factory and seize their assets. In other words, it has become the simplest “excuse” used by the system to strike at citizens’ basic rights by taking advantage of the current resentment against the Brotherhood among a large segment of the Egyptian people.

Is the SJC Succeeding in Preserving Inherited Office?

The issues that the excluded candidates have raised (should their allegations prove true) constitutes a strong indication of the persistence of classism and nepotism within the Egyptian judiciary. The truth is that these two issues are one and the same: the hereditary transfer of judicial positions to the sons of judges does not merely serve the desire of judges to guarantee “a position” to their sons; it also reflects the judiciary’s vision of their profession, and their refusal to allow “kul min habb wa dabb” (riff-raff and all) to enter that profession.[7]

Perhaps the judiciary’s feelings of superiority and boastfulness manifested themselves during the discussion of articles relating to the judiciary in the 2013-14 Constitution. This approach, according to academic scholar Fattouh el-Chazli,  reflected a particular conception of judicial independence.[8]

Judge Sabry Hamed, a member of the previous Supreme Judicial Council, emphasized the issue of class when he clarified that the conditions that candidates must meet included good family and financial standing, in addition to the self-evident importance of their academic performance. He further confirmed that in order to fulfill these requirements, a candidate’s father (but not their mother) had to have completed a post-secondary level of education.[9] However, he denied that there were any exceptions made for the children of of judges, or cases of their fathers making recommendations on their children's behalf.

It should be mentioned that the crisis of familial succession within the judiciary is not the product of recent developments, but has been widespread for a number of decades – to the point that some judges have come to consider it a right.

The Mubarak regime found that judges’ desire to pass their positions on to their children was an effective means of attacking the independent judges who opposed the regime, such as those who took charge of the leadership of the Egyptian Judges’ Club from 2001-2009. The regime responded to the Club’s objections to the law of the judiciary and its famous positions against the election fraud of 2005 by making the minimum academic qualification required for entering the Public Prosecution an [academic] standing of  “good”.

The judges in the club’s independent faction bore the burden of the practical effects of this change. It impacted their interests in the club elections of 2009, paving the way to victory for Judge Ahmed al-Zanad of the club’s conservative faction, who took charge for the first time. It should be pointed out that al-Zanad once stated (and has since repeated) that he “will not rest until the children of judges take up their natural positions in the Public Prosecution”.[10]

What is most striking about the news discussed here is that it points to the triumph of classism and succession practices, despite the revolutionary movement that was established specifically against these two resented things and hopes.

The way the idea of establishing a judges’ academy developed can perhaps shed important light on the issue. During SCAF rule, it was suggested that an academy for judges be founded, in order to select judges and members of the Public Prosecution on the basis of standards of competence and equality, and to enroll those chosen by the academy for training and assessment.

However, SCAF postponed issuing the law until parliamentary elections take place, which may have been due to its belief that the draft law would anger many judges; a battle that SCAF did not want to fight. Since then, no draft laws about such an academy have been tabled in Parliament, while practices of classism and family favouritism have returned. This reflects the regression currently happening in Egyptian society, as well as the digression from the goals of the Revolution.

The effects of the continuation of bequeathing judicial office do not stop at violations of the principle of equal opportunity among citizens. They also have an adverse effect on the level of citizens’ trust in the capacity of the judiciary to carry out justice. These practices also impact judiciary’s independence on a practical level – so long as authorities have sought, and continue to seek, to rule through exploiting these “weak points” of those who oppose them, whenever they find it to be in their interest.

When Class and Familial Inheritance Govern the Selection of Judges, What Chance is There for the Appointment of Women?

The above-stated developments are troubling when it comes to the extent of the Supreme Judicial Council’s compliance with the constitutional provisions of 2013-14. The media has boasted that these provisions guarantee rights and freedoms that no other Egyptian constitution has guaranteed before. However, the continued policy of classism and inherited office within the judiciary arbitrarily violates basic constitutional articles, starting with Article 9 which stipulates that “the State shall ensure equal opportunities for all citizens without discrimination”. It also violates Article 14 which states that “public offices are a competence-based right for all citizens without bias or favoritism”. Last but not least, repeated evidence of ongoing classism and inherited office -as well as factionalism within the judiciary- constitutes a worrisome factor when it comes to the implementation of Article 11 of the Constitution, which explicitly states that women have the right to hold judicial positions.

This article is an edited translation from Arabic.

 

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[1] News published in al-Masry al-Youm, June 20, 2014.

[2] See: “Injustice, Injustice, and More Injustice???”, a profile of those excluded from public prosecution appointments, Kady Online, April 14, 2014.

[3] See: “Those Excluded from Appointment to the Public Prosecution Due to Their Father’s Qualifications Appeal to Sisi”, al-Watan, June 21, 2014.

[4] Declaration issued by a coalition of law graduates, Kady Online, July 9, 2014.

[5] Published in al-Shorouk on July 1, 2014.

[6] Published in al-Youm al-Sabaa on September 21, 2014.

[7] A popular Egyptian phrase used to describe persons of “low” social standing.

[8] See: Fattouh el-Chazli’s, “The Egyptian Concept of the Independence of the Judiciary in the New Draft Constitution”, The Legal Agenda, December 30, 2013.

[9] See: “By The Names…Judges’ Sons Take 35% of New Appointments to the Public Prosecution”, al-Shorouk, July 17, 2014.
[10] See: Fattouh el-Chazli’s, “Judicial Developments in Egypt, 2012”, annual report, The Legal Agenda, May 22, 2013.