Egypt’s Judiciary: The Gender Ceiling (I)


2013-12-01    |   


Where do Egyptian Judges stand on the question of women appointments? In the first of a two-part series on women judges in Egypt and Libya, Menna Omar takes an in-depth look into the history and legal battles surrounding the decades-old struggle of Egyptian women to join the judiciary.

Through their verdicts and actions, Egypt’s judges have demonstrated the extent to which they dearly hold on to their independence. However, the continued exclusion of women from the judiciary poses serious questions about the degree to which these judges are amenable to embracing equality and upholding human rights.

It is important to note that this exclusion is the result of judicial tradition and some interpretations of Islamic Law (Sharia), and not the outcome of an explicit constitutional or legal provision. The Egyptian Constitution of 2012 stipulates equity and equal opportunity in its preambulatory note, as well as in Article 33. The latter states that “citizens enjoy equality before the law. They have identical rights and public duties. There is no discrimination among them”. The same applied under the Constitution of 1971. Moreover, laws regulating the various judicial institutions follow the same line, whereby none of them stipulate that the judge or the member of State Council must be male.

 

Female Judicial Exclusion: Rules of Tradition or Sharia?
 

The question of the right of women to serve as judges was first raised in 1951 when former ambassador and minister of social affairs, the late Aisha Ratib, submitted an application for appointment to the State Council. The application was turned down. Ratib, who was a professor of International law at Cairo University, resorted to the Administrative Judiciary Court (AJC) to contest the rejection. On February 2, 1952, the AJC, chaired by Judge Abd al-Razzaq al-Sanhuri, ruled against Ratib’s contestation. The Court based its ruling on the idea that the management had, at its own discretion, taken into consideration “the job’s conditions and its particulars, the circumstances of the environment, and the status of [existing] norms and traditions”.

The Court also stressed that restricting State Council and judicial posts to men and excluding women on the basis of the above-mentioned considerations “does not demean the status of women, undermine her dignity, diminish her literary and cultural standing, belittle her excellence, and do her injustice”. The Court added that “there is no violation in that of the principle of equality from a legal point of view”. As such, the Court would have relied for its ruling on the norms and traditions to reject a woman's position in judicial jobs, and these are rulings that are subject to change with time.

 

The second time a woman's appointment to the State Council was raised was in 1978. In this case, Hanim Muhammad Hasan, an administrative employee in the State Council, contested the decision to reject her appointment as a “representative”. On June 2, 1979, the AJC decided that Hasan was also not eligible, basing its ruling on Article 2 of the Egyptian Constitution of 1971. This article stipulates that the “principles of Islamic law (Sharia) are the principal source of legislation”.

The court also based its ruling on Article 11 of the 1971 Constitution which stipulates that “the state shall guarantee harmonization between the duties of a woman towards the family and her work in society, ensuring her equality status with man in fields of political, social, cultural and economic life without violation of the rules of Islamic jurisprudence”. The Court decided that it does not have to comment on the decision of the management of the State Council which rejected the plaintiff's application. The Court based its decision on jurisprudence that does not allow a woman to take on a judicial position.

 

It is noteworthy that the Court based its ruling on the provisions of Sharia, which was introduced as a source of legislation for the first time in the 1971 Constitution.  Nevertheless, the court had supported the 1952 ruling regarding “the refusal to acknowledge the presence of a categorial principle deeming Egyptian woman ineligible to hold judicial office at any time or place”. It also acknowledged that “Egyptian society’s customary norms in relation to accepting a woman's ability to assume public office have evolved in a manner that would make the reliance on norms and traditions, the circumstances of the environment, and the status of the jobs to deny a woman such a position unjustifiable”.

The Court based this prohibition on Islamic jurisprudence (fiqh) schools that bar women from holding judicial office (and these are the Hanbali school, as well as most Maliki and Shafi schools), while acknowledging the fact that other schools do allow women to assume such positions. As such, the Court gave the administrative party the opportunity to invoke either opinions (for or against such appointments) “in the manner that it deems more suitable to the current conditions when it issued its decision”. Hence, if the timing of the decision changes, the administration may adopt the opinion that allows woman to assume a judiciary post. However, since then, norms and traditions have settled on the impermissibility of appointing a woman as a judge in the public prosecution, the State Council, the courts of first instance and other courts.

 

In contrast, this prohibition does not apply to the Administrative Prosecution which has been appointing women since its establishment in 1954, and to the State Litigation Authority. Although the Constitution included these two bodies among the judicial organizations, they are set apart by the fact that their members do not issue rulings, but rather investigate and prosecute.

 

State Council Appointments of Women: Overturning Legal Sense
 

The appointment of Judge Tahani al-Jabali to the Supreme Constitutional Court in 2003 by a presidential decree, was an attempt to open the door for women judicial appointments.  

Some have gone as far as to say that this appointment could open the door for women to become members in other judicial organizations. In 2007, four years after the al-Jabali appointment, 31 women members of the Administrative Prosecution and the State Litigation Authority were appointed by presidential decree as judges in some of the courts of first instance, such as family courts and economic courts. Apart from these exceptional cases, the norm regarding the impermissibility of appointing a woman as a judge continues to prevail in judiciary courts. The aforementioned women judges continued their career advancement in the judiciary corps, until one of them, Judge Sally al-Saidi, assumed a criminal judiciary post in 2009 as a member of the Cairo Juvenile Court.

 

Despite these steps, the public prosecution continues to oppose the presence of women members among its ranks. In 2010, the Public Prosecutor's Office announced the appointment of new members, and placed the phrase “no to girls” in the announcement in a clear discriminatory measure that blatantly violated the principle of equity and equal opportunity.

 

The most significant development, however, occurred almost two years later in the State Council. On August 24, 2009, the State Council's appointment-vetting body, the Special Board, unanimously approved the right to appoint male and female faculty of law students who graduated in 2008 and 2009 as assistant representatives to the State Council.

Consequently, a vacancy announcement was made and a high number of graduates, both men and women, applied. Following the application deadline, the Special Board convened again on November 16, 2009 and unanimously agreed to conduct the necessary interviews with the applicants for the announced job position. On January 18, 2010, the Special Board approved, by a majority vote, to go ahead with the screening and appointment process.

 

However, in a sudden turn of events, the State Council's General Assembly met on February 15, 2010 in the presence of 380 judges. During the meeting,the appointment of a woman as a judge was voted down. A total of  334 judges voted against, while 42 judges voted in favor. Four judges abstained and the council chairman withdrew before the voting started. The General Assembly also decided that it is, itself, the body authorized to determine everything related to the State Council's formation, structure, and organization. The result was that, in a meeting held on February 22, 2010, the majority of Special Board members turned against their original approval for the appointment of women as judges and consequently decided to halt the appointment process.

 

On the same day, Board Chairman Judge Muhammad al-Husayni issued a unilateral decision to complete the appointment process for the candidates deemed eligible, once they fulfill the necessary investigative checks and pass the medical examination. He wanted to present the names once again to the Special Board to issue a presidential decree to appoint them. Based on this decision, the State Council General Assembly convened in another extraordinary session on March 1, 2010. The session was attended by 319 judges, but none of the members of the Special Board were among them. The meeting concluded with 317 judges agreeing to postpone the appointment of women as judges in the State Council and to consider the General Assembly in a permanent session to follow up the implementation of its decisions.

 

It is notable how the General Assembly -which is often cited as one of the guarantees of the judiciary's independence- played a role that was not only conservative compared to the decisions of the Council chairman and the State Council Special Board, but was also a deterrent to, and a nullifier of, those decisions.

 

Following these hard-line positions, and upon the request of the prime minister, the minister of justice submitted a request on February 18 to the Supreme Constitutional Court to clarify the text of Clause (1), Article (73) of the State Council Law. Clause (1) stipulates that “whoever is appointed to the State Council must be an Egyptian with full civil eligibility”. The justice minister also asked the Supreme Constitutional Court to clarify the Third Paragraph, Article (83) of the State Council Law, which states that “the remaining members and assistant representatives shall be appointed upon a decision by the President of the Republic after the approval of the Special Council for Administrative Affairs”.

 

On March 14, 2010, the Supreme Constitutional Court issued its ruling, in which it refused to clarify Clause (1), Article (73) of the State Council Law because there were no differences of opinion over its interpretation. The Court said that “no one argued against its application to any person who holds the Egyptian nationality”. Consequently, the Court ruled that the term “Egyptian” in the said Article includes any person who holds the Egyptian nationality. With regards to the Third Paragraph of Article (83), the Court agreed to clarify it “due to the differences between the Special Council for Administrative Affairs and the General Assembly of the Council regarding its application”. The Court also ruled that “the Special Council for Administrative Affairs, and not the General Assembly of the Council, is the body empowered to approve the appointment of assistant representatives in the State Council”.

 

Despite this ruling, the situation did not change and all the appointments were put on hold. Many of the judges of the State Council considered the Constitutional Court's ruling interference in the State Council’s affairs. They insisted that the General Assembly is the higher authority that handles its internal affairs. This contradicts the judicial tradition under which judges respect all judicial rulings, particularly those issued by the Higher Constitutional Court.

 

As such, members of the Special Board decided to calm things down, particularly since the board was up for restructuring given that some members were retiring. A three-member committee led by Judge Adil Farghali was formed. The committee was charged with drafting a report to present to the Special Board so that the latter takes a decision on the matter based on the report’s recommendations.

 

In June of 2010, Judge Muhammad al-Husayni retired having reached the designated legal age, and the Special Board was restructured. On the 12th of the same month, the Special Board announced its acceptance of the recommendations of the three-member committee. The committee recommended the postponement of appointing women judges in the Egyptian State Council until public facilities in court houses are completed in a manner that would be suitable for women, and until kindergartens for their children are set up.

 

As a result, the vacancy announcement for the position of assistant representatives in State Council was limited to male graduates of 2008-2009, and the reference to female graduates was dropped. At the same time, all the decisions and procedures that were previously undertaken, including the interviews with eligible young women, were cancelled.

 

What Judges Think: An Alarming Trend
 

Before the appointment of Judge Tahani al-Jabali to the Higher Constitutional Court, the issue of women appointments in the judiciary was a subject for much discussion. Several judges had expressed their opinions indicating their arguments in favor or against such appointments. The June-December 2002 issue of Women and Law supplement published by the Judges Club included a set of articles on the subject. The preface to this issue, which was written by Judge Ibrahim al-Tawilah, the then vice president of the Court of Cassation, is noteworthy. It argues that the issue of women in judicial positions was brought up at the time by civil society, which accused the judges of being biased in favor of a specific view. This accusation prompted the Judges Club to provide a platform for judges and other people concerned with the subject to express their opinions. At the end of the issue, the Judges Club invited judges to a seminar on the subject which indicated that the Club was open to discussing the matter, and not biased or adhering to a certain position to the exclusion of another.

 

Yet, in the 2002 supplement, most of the judges rejected women's work in the judiciary and justified it by saying that Sharia does not permit such work for women. This is despite the Islamic religious rulings issued in the same year by top religious authorities including former al-Azhar Sheikh Muhammad Sayyid Tantawi, former state Mufti Ahmad al-Tayyib, and Minister of Awqaf Mahmud Hamdi Zaqzuq. According to the fatwa, “there is no clear conclusive text from the Quran or the Prophet's life and teachings, or Sunnah, which prevents women from assuming a job in the judiciary”. Some of the most prominent provisions of Sharia, which are frequently used by opponents to woman appointments include the following:

 

Neither the Prophet, nor any of the orthodox caliphs, appointed a woman judge;

The rule that “men are the protectors and maintainers of women”;

The Prophet's statement that “no people shall succeed if they allow a woman to run their affairs”;

The Quranic verse: “if one of [two women testifying] errs, the other one can remind her”;

From a religious viewpoint, the woman is banned from being in men's company since some discussions could constitute a religiously prohibited Khulwah, or unacceptably private encounter between a man and a woman; and

A woman's testimony is not accepted if she does not have a man with her, based on the Quranic verse: “Get two witnesses, out of your own men, and if there are not two men, then a man and two women”.

 

Some judges cite the alleged unsuitability of women working as a public prosecutor as a reason for opposing their appointment to the bench. Judges in Egypt are required to serve as prosecutors before they are credited as being qualified judges and prosecutors might be required to go to remote places that, opposed judges argue, would not be suitable for a woman. Additionally, opponents of such appointments mention a woman's inability to put up with hard work and to leave her home for long hours to investigate a case.

Judge Ihab Mahir al-Sunbati responded to this opinion in an article published in the Judges Club's supplement. He reminded everyone that women physicians have long examined corpses and carried out autopsies, while women ambassadors have lived abroad for a considerable period of time. As for the difficulties of arranging accommodation and transportation and other relevant issues, al-Sunbati said these “could be overcome if the intentions were sincere and if the capabilities were made available. Such difficulties must never stand between the woman and her constitutional right”.

 

Some judges addressed the issue from a male-chauvinism point of view. In addition to their concern about issues of pregnancy and birth-giving, some argued that women are not fit for the judiciary because the secret deliberations among the judges are considered a Khulwah, or a prohibited meeting between men and women in private. Others argued that women cannot investigate crimes like rape due to shyness and other reasons. When presented with the successful experiences of women in the administrative courts and the State Litigation Authority, some went as far as claiming that the work of these two bodies is entirely different from the work of the judiciary and, as such, serve as a bad analogy.

Conclusion

 

During the Mubarak regime era, and particularly during the difficult times that came after the revolution, the State Council acted as the protector of the principle of full citizenship, public freedoms, and equity. Yet, in relation to appointing women judges, the State Council was conservative and did away with the principles that it had defended, becoming the party that carried out the discrimination. It is as if its declared principles never trespassed a ceiling of traditions and conservative values, particularly when it comes to women's social role.  

Indeed, even the State Council General Assembly, which was often portrayed as the basic guarantee for the judiciary's independence, came across as a bastion of conservative powers in the face of its Special Board's decision to introduce woman members. The State Council decided to postpone this matter until public facilities are “ready” for this purpose, but the matter has fallen off the radar. It is as if the decision was a pretext to sideline and eventually drop the demands for reform. Regardless of all the strong positions of the judges that emphasize their independence, the issue of women in the judiciary remains an entirely absent matter after the revolution. It is as if no one cares.

Appendix:

Women in Judicial Positions

Sharia-Based Arguments

Against

In Favor

Neither the Prophet nor any of the orthodox caliphs appointed a woman judge.

It was said that Umar had granted women Hisbah (the right to file a lawsuit against someone who has violated the “rights of God”), which is a public responsibility. Anyone eligible to handle Hisbah should be fit to assume a post in the judiciary.

The principle that “men are the protectors and guardians of women”.

The relevant verse is related only to the man's role in his family and not in an absolute manner.

The Prophet's statement that “no people shall succeed if they allow a woman to run their affairs”.

This is applicable only to the major mandate, namely, the overall leadership in the one Islamic state (a state that no longer exists now), because its ruler has absolute authority in all fields and this is not available in the rulers of today.

A woman tends to forget and not recall things. This contradicts the requirements of the judiciary profession, relying on the verse of “if one of them errs, the other one can remind her”.

The Prophet's statement: “You are all caretakers and guardians, and each of you is responsible for his subjects. The woman is a caretaker of her husband's money and is responsible for taking care of him.” A woman's eligibility makes her fit to assume responsibility for her house and, consequently, is fit to assume a judicial position.

The judges' council is attended by men opponents, and so are the deliberations among the judges, most of whom are men. Women are banned by Sharia from attending men's gatherings. Deliberations are considered a Khulwah, or a religiously unacceptable meeting between men and women in private.

A woman could present a religious opinion, or fatwa, on all jurisprudence issues, and hence she could assume a judiciary position.

A woman's testimony is not accepted if she does have a man with her, according to the Quranic verse: “Get two witnesses, out of your own men, and if there are not two men, then a man and two women”.

The verse “Allah doth command you to render back your Trusts to those to whom they are due; and when ye judge between man and man, that ye judge with justice” is addressed to both men and women.

Women’s Social Role Arguments

Against

In Favor

A woman cannot conciliate between judiciary and her family and this will negatively affect the judiciary.

The judge applies the rules of the law and cannot depart from those rules, regardless of emotions or passion. The judge is also subject to judicial supervision.

A woman is subject to monthly symptoms, which render her emotional and irritable.

The norms have changed, judging from women's work in fields that are no less difficult (medical examiner).

It is difficult for a woman to travel away from her family, particularly if she is appointed to a public prosecution job.

 

This article is an edited translation from Arabic.

References:

[1]Fattuh al-Shadhili, Judicial Developments in Egypt, 2012, Legal Agenda website.

[2] See the State Information Service at www.sis.gov.eg.

[3] Ibid.

[4] The Court of Administrative Judiciary, Session of February 2, 1952, Lawsuit No. 30 for the year 4 Qaf.

[5] See the State Information Service at www.sis.gov.eg

[6] The Higher Administrative Court, Session of June 2, 1979.

[7] Fawziyah Abd-Al-Sattar, Women's Assumption of the Judiciary Position, published in “Women and Law” supplement issued by the Judges Club, June-December 2002 issue.

[8] Iqbal Barakah, The Role of Media in Supporting Women's Assumption of the Public Prosecutor Position in Egypt, published in the study “The Egyptian Woman and the Public Prosecution Job” issued by the Arab Center for the Independence of the Judiciary and the Legal Profession, 2012 Issue..

[9] Judge Ali Fadil Hasan, The Woman…A Judge, published in the “Women and Law” supplement issued by the Judges Club, June-December 2002 Issue.

[10] See the State Information Service at  www.sis.gov.eg.

[11] Al-Ahram newspaper, April 11,
2007.http://www.ahram.org.eg/Archive/2007/4/11/FRON13.HTM#top

[12] Al-Masri al-Yawm newspaper, February 18, 2009. http://today.almasryalyoum.com/article2.aspx?ArticleID=199554

[13] The Woman and Judiciary Platform of the State Council, issued by the Egyptian Center for Economic and Social Rights, 2011.

[14] Ibid.

[15] Ibid.

[16] According to Article 68 of the State Council Law, the State Council Special Board is the body “authorized to examine the appointment of members of the State Council” and is composed of the chairman and the six longest serving deputy chairmen of the Council.

[17] The Higher Constitutional Court's ruling was issued on March 14, 2010.

[18] See This is how the administrative courts stood up to authoritarianism in Egypt since Mursi's election (freedom of expression, demonstration, assembly formation, the right to treatment, the independence of the judiciary, strengthening the democratic system), by lawyer Muhammad al-Ansari, published on May 31, 2013, in The Legal Agenda.
 

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