Lending Egyptian Judges to Gulf States: The Politics behind the Practice


2013-12-23    |   

Lending Egyptian Judges to Gulf States: The Politics behind the Practice

The system of lending Egyptian judges to the Gulf Arab states was initiated in the early fifties by Arab nationalist politics spurred by the 1952 revolution. In principle, the lending system was meant as an exchange of expertise between judges of the Arab world to enhance their performance. Given its rich judicial experience, Egypt was the leading lending state. In recent years, the number of judges lent to Arab states, especially Gulf states, has increased significantly.

Several reasons can be traced for such an increase, including pressure applied by Egyptian executive authorities on judges and/or the judges’ desire to access a better livelihood by earning higher salaries while working abroad. In this context, the Independent Judiciary Movement (IJM) attacked the legislation regulating this practice. IJM considers that the lending system is an instrument of coaxing and discrimination, and constitutes an encroachment of judicial independence. To avoid such effects of the lending system, and given the Egyptian courts’ need for judges, IJM had proposed to lower the upper limit on the period of lending from 6 to 4 years. Their proposal was part of the Judicial Authority Draft Law presented by the Egyptian Judges Club in 2004.

In fact, Egypt had concluded several agreements regulating the judges’ lending system, such as the 1989 agreement with Bahrain, the 1977 agreement with Kuwait and the agreement with the United Arab Emirates (endorsed by the Egyptian parliament in 2000). Countries other than Egypt such as Tunisia, Morocco and Jordan, have also started lending judges. The latter signed agreements with the UAE, Bahrain and Qatar, as well as Tunisia and Morocco.

It is therefore most pertinent to review the judges’ lending system between Egypt and Gulf Arab states in order to bring attention to the aims of such a system as part of legal and judicial cooperation and to examine the consequences of such a system on the Egyptian judiciary and judges.

 

The Adversarial Effect of Lending Practices on Judicial Integrity and Independence

  

Currently, certain countries such as Kuwait and the UAE select the judges they wish to borrow by name. The same judge can be selected more than once, which promotes reliance on the network of connections and favoritism within the lending country. This practice might also at times deprive Egyptian courts of their most prominent judges.

The repercussions of such a trend on the improvement and development of the judicial system in Egypt are obvious. In 2008, official surveys revealed that as much as an estimated 20% of Egypt’s judges were serving in Gulf Arab states. Such a high rate of absentee judges causes delays in processing lawsuits filed before the various Egyptian courts.

Consequently, one must question the commitment of the Ministry of Justice and the Supreme Judicial Council (SJC) to overseeing the judges’ lending system. What role is assigned to the SJC to monitor this system in an efficient manner? What is the maximum number of judges that could be borrowed at the same time without affecting the work of the Egyptian judiciary? How is it acceptable that 2000 judges be lent at the same time, while depriving the judicial system of many highly qualified judges?  

Public authorities are overlooking the flaws of the lending system in order to reap its benefits. In fact, authorities highlight the financial gains of the lending system to lure opposing judges away from Egypt. Under the rule of deposed president Hosni Mubarak, the lending system was actually used to alienate reformist judges.

Following the 2005 crisis between the state and the Judges Club over the independence of the judiciary, Judge Mahmoud Mekki, who acted as IJM coordinator at the time, was among the major judges who left the country in the wake of the crisis. After the parliamentary elections in 2005, Mekki was referred to the disciplinary board for making public accusations of electoral manipulation. The board acquitted him of all charges, afterwhich he was lent to the UAE and Kuwait.

Similarly, Judge Hisham Bastawisi, who was referred to the disciplinary board along with Mekki, was subjected to restrictions on his freedom of movement and media appearances, as well as to several travel bans. Bastawisi finally succumbed to and accepted a reassignment to Kuwait. It is evident that Mubarak’s regime used the lending system as a means to sideline a large number of judges. Accepting lending assignments was the only way for judges to escape pressure from authorities, and it came with financial gains that made working abroad appealing.

Besides the lending system being a means to alienate dissenting judges, the system largely promotes favoritism and preferential treatment. Currently, the legal limit for a continuous posting under the lending system is set to 4 years. However, extending the lending period is a matter left open to interpretation as it depends on whether “the national interest requires [such an extension]”.

Needless to say, matters of national interest are left for the president’s discretion. Therefore, the president has the right to extend the lending duration as he pleases in the name of “national interest”. Such a right is a clear interference with the jurisprudence of the judicial authority and a serious threat to the independence of the Egyptian judiciary.

It should be noted that Judge Muhammad Mekki, son of ex-Minister of Justice Ahmed Mekki, was assigned to a post in Qatar while his father was still in office. According to the regulations, a judge’s judicial grade automatically drops by two grades when sent on a lending assignment. This rule however did not apply to Muhammad Mekki, who was assigned with the same judicial grade. The selective treatment of Mekki raised much criticism in Egypt.  

The Role of Judges: The Tunnel Vision of Sectoral Interests

The two-grade demotion rule is one of the major violations committed against judges assigned for lending. This rule means that judges will no longer benefit from the financial allocations set for their initial grade. For Egyptian judges, this measure is a discrimination that “belittles the acquired rights of the judicial profession”. This measure is likely intended to create a salary and status disparity between foreign and national judges in the borrowing country. Such motives raise an important question: given that the lending system is effectively a form of judicial cooperation, how is this demotion policy justified?

Moreover, given that the lending country is exporting judicial expertise and competence, why does it permit the devaluation of its judges’ expertise in such a way in the borrowing country? How can the SJC overlook the violation of judges’ rights and why doesn’t it ban the system of lending judicial expertise until such expertise is properly recognized?

In the last decade or so, lending has become the result of a direct contract between the borrowing country and the concerned judge. In other words, this system is being diverged from its original goal of judicial cooperation to a simple contractual deal. The borrowing party seeks cheaper, better experienced “labor” and the judge pursues a higher income.

What’s more, the judge’s status under said circumstances is merely that of a contracting party whose contract can be terminated at any time. Such was the case of Judge Fouad Rashid who was deported from UAE after publishing “revolutionary” articles concerning Egypt, and for protesting the disparate salaries between Egyptian and Emirati judges. A national judge from the UAE receives a salary that is three times higher than that of an Egyptian judge.

The origins of this switch from a state-sponsored program to a contractual business-like affair lie in the earlier decision by Cairo to have the borrowing country, rather than Egypt, pay the salaries of judges on lending assignments. It is important to emphasize that one of the judges’ main motives for accepting lending assignments to Gulf states is the higher income. Many judges, such as Bastawisi, have expressed this motivation. In a 2009 interview with Egyptian daily Al Masry Al Youm, Bastawisi said the offer he received from Kuwait was appealing and the gap between his Kuwaiti salary and the one he received in Egypt was significant.

The enticing rewards enjoyed by a broad segment of Egyptian judges under the lending program has clearly impacted the stance of the Judges Club towards the matter. Despite the latter billing itself as the defender of judges’ independence and prestige, the recent Judicial Authority Draft Law presented by the Club during the Morsi presidency did not call for any amendment to the provision on lending judges.

Undoubtedly, such a stance reflects the general desire among judges to preserve the status quo, secure access to higher income and engage in direct negotiations with the borrowing country. The Judges Club is thereby promoting “sectional” interests over public interest. The latter is served by having the state manage the program, and preserve the independence of judges and the judiciary. This would further prevent the misuse of lending to alienate certain judges and please others.

The SJC committee, appointed by the then-chairman of the SJC Hossam al-Gheriany, had a different take to the Judge’s Club. The committee called for several amendments to the law governing the judges lending program. First, the period of lending throughout a judge’s years of service should not exceed 6 years. Second, and most importantly, the judges’ judicial grade should not be reduced upon transfer to the borrowing country, and a continuous lending assignment should not exceed 4 years. Third, the borrowing country should not be able to select a judge by name. Selection criteria should be set and seniority should be taken into account.

The third proposal seems to be the most suitable solution in efforts to reform the lending practice. It actually seeks to restore the original purpose of the lending system and preserve judicial independence. It also confirms the monitoring role of the Egyptian state and safeguards the country’s judicial system by defining the lending period and banning selection by name.  

Conclusion

In past years, the lending of Judges by Egypt to Gulf Arab states has been a means to achieve undesignated ends, such as political favours or financial gains. Consequently, the lending system became a potent tool in the hands of the executive authority to control the judicial branch. It is simultaneously used to win the sympathy of many judges and to sideline certain others who willfully accept the new role assigned to them.

The impact of lending judges to other states is not restricted to the lending country. What are the effects on the borrowing states’ judicial systems? What becomes of the concept of justice when applied by foreign judges hired on temporary contracts? These important questions are beyond the scope of this study, but present a worthy object of examination in future studies.

This article is an edited translation from Arabic.

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