In the three-year period up to 2012, the Arab judiciary witnessed an impressive wave of activism that led to the breaking of traditional taboos surrounding the profession. Such was the general direction emphasized in 2012, especially with regard to the judges’ practice of their freedom of expression, freedom of association and participation in general political activism. The extent of said practices naturally varies between different countries. However, certain judges’ associations, such as the Egyptian Judges’ Club, did succeed in capturing the public spotlight in their countries.

Mapping of Judges’ Associations by End of 2012

With the exception of Lebanon, all the countries studied (Egypt, Morocco, Tunisia, Lebanon, Palestine, Yemen and Libya) now have one or more judges’ association(s). This study provides an overview of these judicial associations and their dates of establishment.

First, it should be noted that Arab judges disagreed over whether to adopt a mono-structural or multi-structural approach to associational activity. For example, judges in Egypt were keen on reaffirming –at least in their public speech- the unity of their Judges’ Club, hence, stressing on the necessity of the judiciary’s unity to ensure its independence.

In contrast, the multi-structural approach in Morocco came as evidence of the decision by young Moroccan judges to liberate themselves from the unifying framework of the [state-sanctioned judges’ association] al-Wadadiya al-Hasaniya. For these judges, al-Wadadiya al-Hasaniya represented for the judges the seat of power and hierarchy.

However, seeking a multi-structural framework was not without its problems, especially with regards to questions of efficient advocacy and legitimacy of representation. Such was the case in Tunisia and Morocco with both countries witnessing a sudden rise in the number of judicial associations in 2011.

 

Tunisia

Amid the ecstatic climate following the success of the Tunisian uprising in 2011, the Association of Tunisian Judges (TJA) was reactivated. The TJA’s executive bureau recovered the latter’s head office after the fall of the former regime.

However, this Bureau did not succeed in garnering the unanimous support of judges. Actually, the Bureau’s calls to cleanse the judiciary in the wake of the revolution were a main motive for a number of judges to establish a syndicate [Syndicate of Tunisian Magistrates (STM)]. Since the foundation of the STM, the latter’s and TJA officials have been exchanging accusations in such a way that any communication or joint work between the two –at least publicly– was and continues to be impossible.

The TJA charged that the STM’s sole raison d’etre was to prevent the cleansing of the judiciary from members implicated with the former regime. The STM accused TJA officials of despotism and seeking to dominate the judiciary in the name of revolutionary legitimacy.

A third body was added to the two aforementioned, namely, the Tunisian Union of Administrative Judges (UAJ). The latter was established in November 2011 as a reaction to the executive power’s single-handed decision to dismiss and replace the president of the Council of State without consulting with administrative judges.

Despite – or perhaps thanks to – this rivalry, the STM and the TJA actually share several views regarding demands for an independent judiciary. In fact, both parties were competing in showing their unwavering respect for international standards [of judicial conduct]. The hostility between the two bodies had a positive effect as disagreements over the judiciary’s independence became part of public discourse.

Early in 2012, a group of judges in cooperation with civil society created the Tunisian Observatory for the Independence of the Judiciary. The aim behind the observatory is “to have a structure within the judicial body observing the level of independence and striving to spread the culture of independence”.

 

Morocco

In Morocco, matters took a different path. The addition of a chapter to the new Moroccan Constitution clearly acknowledging the rights of judges to freedom of expression and association, allowed for the creation of a number of associations.

The Moroccan Association of Women Judges was the first gender-based association on a regional level. The other newly-founded Moroccan Judges Association focused its activities and work on supporting judges referred to the Supreme Judicial Council. The Researcher Judges Forum was also created and its president stressed the forum’s focus on supporting scientific research in the judicial field.

However, the foremost judicial association in Morocco is the Moroccan Judges Club, which constitutes the unifying platform most representative of young judges. Upon its launch in early 2012 through social media networks (namely Facebook), the judge members became known as Facebook judges.

The creation of all these new associations constituted a deviation from the norm set by virtue of a Royal edict. The norm was that judges can only assemble and associate within official frameworks especially established for them, namely, al-Wadadiya al-Hassaniya. Despite the emergence of these new judges’ associations, official authorities continued to deal with al-Wadadiya al-Hassaniya as the only official representative of Moroccan judges. The authorities’ stance became especially obvious when it chose al-Wadadiya alone to participate in the National Dialogue Commission on Justice Affairs.

As a result, officials of the opposing association (the Moroccan Judges Club which claims to have 2600 member-judges out of 4000) found themselves before a crucial challenge. They needed to prove their representative capacity and most importantly, have it acknowledged.

Libya

In 2012, and for the first time in Libya, an independent judges association was founded (The Libyan Judges Organization or LJO). According to the organization’s records, it boasts a membership of more than 300 out of a pool of about 1300 -mostly young- judges and members of the general prosecutor. Following its foundation, this new judicial body stirred the stagnant waters of the Libyan judicial milieu and initiated the debate on the legitimacy and importance of judges’ associations. Many felt encouraged to take on positive action and another group of motivated judges called for the creation of a judges’ club.

Egypt

Since its foundation and as can be gleaned from its repertoire of principles and actions, the Egyptian Judges’ Club remained largely devoted to its unity and to the solidarity of its members. Unity is considered crucial for ensuring an independent judiciary no matter how diverse the opinions of the club’s members are.

However, a number of Egyptian judges announced the foundation of a new movement called “Judges for Egypt”. The said movement had served notice of its founding by declaring the victory of now deposed President Mohammed Morsi. The movement was known for its support for the Muslim Brotherhood and its opposition to the Judges’ Club, especially in matters such as the participation of judges in monitoring the referendum, the disabling of courts as an act of protest or the assigning a new Prosecutor General. The activity of the movement remained limited, nonetheless, it still serves as a rare indicator that division is possible among Egyptian judges.

In 2012, Egypt also witnessed judicial movements of protest or advocacy outside institutional frameworks. A main example is the call by youth members of the Prosecutor General office for the departure of the Prosecutor General appointed by Morsi.  

Yemen

In Yemen, the only established judges’ association is the Yemeni Judicial Forum with all its different chapters. The forum was founded in 1990 after the Yemeni unification, but soon fell under the control of the hierarchical system which led some observers to describe it as stillborn.

In the wake of the revolution in 2012, the forum was pretty active as a single body or through its branches. An open strike was declared and lasted for four months. On certain occasions, some of the chapters unilaterally declared escalatory steps towards more independence, especially concerning the forum’s secretariat in South Yemen.

During the period under study, the Higher Judicial Institute’s graduates also protested their assignment to General Prosecution positions in light of the customary practice of appointing them to judicial positions. The breaking of customary practice may be attributed to the authorities’ intention to alienate judges unsupportive of the new regime.

Palestine and Lebanon

Despite the limited number of Palestinian judges and prosecutors which does not exceed 340, Palestine has several judicial associations. There are three working judges associations presented herein in order of seniority. The first, founded in 2002, is the Palestinian Judges’ Association. The second is the Palestinian Judges’ Club (PJC) founded in 2008 through the support of the then-president of the High Judicial Council (HJC). Despite the PJC’s non-official status, it has been drawing its legitimacy from its activities. The third organization is the General Prosecution’s Club, founded in 2012.

The different successive judicial councils were wary of these judges’ associations. The councils saw the associations as mere socio-cultural clubs that cannot represent Palestinian judges in professional development matters that HJC decides on. However, reality has proven otherwise. All said associations were actively involved in making observations on official proposals concerning judiciary’s affairs. They were also active in protests and strikes when necessary.

In Lebanon, judicial activist movements were quasi-absent, or at least remained outside any institutionalized framework.

Judges Flouting Judicial Customs: Media Appearances, Political Positioning and Cessation of Work

In 2012, judges defied the long held tradition of keeping silent in the public sphere. One especially notable stance was that of the president of Egyptian Judges’ Club, Ahmed el-Zanad, who was a supporter of Mubarak’s regime. In 2005-2006, he fervently opposed the [judges’] independent movement on the grounds that it violated judicial tradition by involving judges in political affairs.

However, el-Zanad seems to have forgotten his own admonishments during the confrontation between the Judges’ Club and the regime in the wake of revolution. El-Zanad was fully engaged in the game of media appearances – nay, in politics. His involvement was clearly acknowledged when he declared that judges shall henceforth have a say in everything happening in Egypt. New regime figures therefore accused el-Zanad of taking on a political role and of wooing regime opponents to his side and inviting them to join him.

The obligation of reserve imposed on judges was also criticized in Morocco by post-uprising judges who no longer followed the movement’s directions. Among the most characteristic examples in this regard, is the stance of Moroccan Judges Club members clearly expressed on two occasions. The first was during an aired conversation between the head of the club, Yassine Mkhelli, and the minister of justice, Mustafa Ramid. The second was during a pleading made by Mkhelli while he was under investigation.

 

The Moroccan national legal scene was enriched with written contributions by judges who started publishing articles in different national and international media outlets. The judges also participated in various seminars without applying for any permit in this regard, thereby putting an end to the isolation imposed by the obligation of reserve.

In addition to assuming its usual activities of defending judges’ materials and moral interests and of formulating needed reforms, the club has broken taboos on several levels. Most importantly, the club has kept watch against the interferences in judges’ affairs, which mainly came from judicial officials. The club also conducted ethics-promoting campaigns, such as the No-For-Bribe campaign where the club’s officials published their wealth statements online.

In Tunisia, judges’ involvement in public affairs was reportedly unprecedented. Judges defied the obligation of reserve which was constraining them and suppressing their freedom of expression. The most important outcome of judges turning to the media was the disclosure of the identity of parties who have been trying to coerce the judiciary during trials.

Under the obligation of reserve, judges had to keep silent and not respond to campaigns aimed at destabilizing public trust in the judiciary. An independent judiciary and the actions of judges are not only guaranteed by law, but also also by public opinion. The public should stand up against attempts to misemploy its voice.

Judges did not stop at defending their profession’s interests. The bylaws of the Moroccan Judges Club, akin to those of the Libyan Judges Organization, stipulate that human rights principles, international conventions and charters defending public rights and freedoms should be included in the constitution and that relevant basic guarantees should be defended. This approach was reinforced during a number of seminars that both associations took part in with non-governmental organizations working in different fields.

Another distinctive feature of Arab judges’ activity in 2012 was the use of methods like solidarity or protest rallies and even sit-ins. Moroccan judges, for instance, have been engaged in forms of expressions unprecedented in the history of the Moroccan judiciary. These forms of expression included for the first time the donning of a red armband as a form of protest. The action was part of demanding an accelerated reform process and more realistic constitutional requirements.

Moroccan Judges also organized a national rally wearing their official uniform before the court of cassation, a first in Morocco’s history. They were demanding genuine independence of judicial power. More protest rallies were organized on the regional level demanding the state to assume its responsibility in protecting judges from the increasing recurrent assaults against them under the “Day of Rage” slogan.

The activism of Moroccan Judges Club reached its peak on May 5, 2012 as the National Council was holding its second meeting session. Judges were to discuss the possible forms of protest to be applied against the government’s tardiness in meeting their demands. The opening session was attended by about 2,000 judges and national and international media was present. The session ended with a consensus on adopting all forms of protest. The successive steps to follow started with wearing the red armband, then rallies, and even going on a strike was considered as a possible option.

Another major observation regarding the activity of Arab judges in 2012 is the popularity of strikes as a method of protest. In Egypt, judges went to the extent of boycotting the supervision of the constitutional referendum and interrupting the work of courts. This was a rare stance taken by judges in answer to the siege imposed on the Supreme Constitutional Court and the dismissal of the General Prosecutor as discussed above.

Several general assemblies of courts and judicial sub-clubs supported the Judges Club in boycotting the elections’ supervision or interrupting the courts’ work.

In general, Arab judges responded to the calls by their associations to go on strike. Yemeni judges’ strike went on for four months, involved a majority of judge members of the Yemeni Judicial Forum, and ended only with the official signature of a list of promises. Tunisian judges went on strike answering the call of their association and syndicate, and so did Libyan judges in protest against the absence of court protection.

In Morocco, the Judges Club waved the strike warning twice at least in 2012. However, the issue was subject to debate with other Moroccan judicial associations. The latter considered that the consecrated judges’ right to association does not allow for strike action, arguing that such action is considered a syndicate-related method that surely exceeds the rights allowed for under collective action.                                                        

The year 2012 also witnessed a number of judges resorting to courts to lay the foundations of an independent judiciary. Most notably, five Yemeni judges challenged the constitutionality of the Judicial Power Law before the Constitutional Chamber of the Supreme Court in Sana’a. The lawsuit was filed based on the fact that the Judicial Power Law “contradicts the Constitution and is deformed by the executive power’s blatant interference in judicial power’s affairs as per its decisions, jurisdictions and the independence of its judges”, as mentioned in the text of the suit. “The law and its mandating reasons are a flagrant violation of judicial independence on the administrative, judicial and financial levels”.      

References:

[1] The regional report relies on seven country-based reports: Egypt by Dr. Fattouh el-Chazli, Tunisia by Judge Mohamed Afif Jaidi, Palestine by Dr. Firas Melhem, Libya by Judge Marwan al-Teshani, Yemen by Judge Abdel Wahab Katran, Lebanon by Nizar Saghieh, and Morocco, 2 reports by Abdel Aziz el-Nouaidi and Judge Anass Saadoun.

[2] In 2013, the forum was re-launched during a general conference and its name was changed to “Yemeni Judges Club”. The South Yemen Judges Club was also founded.

 
[3] An article by Abdl Razak al-Jabbari, hakikat wajeb tahafoz al-kadi [On Judges and the Obligation of Reserve], published in several newspapers and available on the website of the Yemeni Judges Club.

 
[4] Anass Saadoun, [Judges and the Right to Protest, The case of Moroccan Judges Club’s rally before the Court of First Instance of Taounate] Al-Massae Newspaper on March 9, 2012.

 
[5] The Constitutional Court accepted the suit in question on May 26, 2013.