Recently, there have been increasing reports about Egyptian lawyers protesting and striking because of several factors including: police abuses, the illegal arrest of lawyers while working or on account of their work, or due to violations of their right to defend. Lawyers have also been complaining about certain judges’ intransigence towards them, and some have subsequently called for judges examining their clients’ cases to be removed or transferred. On the other hand, the Egyptian Bar Association has been suffering from an internal conflict that has deteriorated to the point that a number of lawyers have demanded and collected signatures for the impeachment of its current president, Sameh Ashour‎.

 

This article will discuss the status of lawyers in the recent period, focusing on the abuses and violations against them and on the Bar Association’s position on this abuse. It will also shed light on the problems generally afflicting the profession, and explore their causes and the Bar Association’s role in addressing them.

 

 

Lawyers in the Firing Line

 

 

As previously indicated, cases of police abusing lawyers have increased significantly during the last three years. Consequently, a real crisis has emerged between lawyers and police and has deteriorated enough to prompt the Egyptian president to intervene and personally apologize to the lawyers. This crisis could be attributed to the encroachment of the security apparatus’ authority over the past years, and its perception of lawyers as an obstacle on the path to punishing whomever they deem deserves punishment.[1] Less logical and comprehensible, however, is the crisis between lawyers, on the one hand, and judges and prosecutors, on the other. This crisis is worsening daily because of the judicial bodies’ intransigence toward lawyers and their tendency to refer lawyers to investigation on the charge of contempt of court, refuse to meet with them, and treat them condescendingly, as explained below.

 

 

The Security Forces’ Abuses Against Lawyers

 

The killing of lawyer Karim Hamdy may be the most notable recent incident of abuse. In February 2015, Homeland Security arrested Hamdy and proceeded to torture him to death in al-Matariyya police station on account of his defense of a number of Islamist detainees. The incident sparked an acute crisis between lawyers and the security apparatus. It led to extensive protests amongst lawyers, who demonstrated in front of the station on February 26, 2015. The lawyers also staged a protest on the steps of the Bar Association premises in March 2015. Wearing black robes, they then proceeded to the High Court of Justice and surrounded the Prosecutor General’s office to protest the gag order that he had issued in the case.

 

 

According to lawyer Malek Adly, this march was the first instance that the Ministry of Interior was unable to control as an unauthorized protest.[2] Following the march, some of the lawyers, including Khaled Ali and Malek Adly, were referred to investigation before the Prosecutor General. Bar Association President Sameh Ashour intervened by appearing before the Prosecutor General to calm the situation and explain the lawyers’ position to him. The march was reminiscent of the demonstrations that lawyers staged in 1994 after lawyer Abd al-Harith Madani was tortured to death in custody.[3]

 

 

The Hamdy incident is not the only case of abuse against lawyers in the recent period. For example, in January 2014 Amr Imam was threatened at gunpoint in the Maadi police station when he asked about detainees arrested during protests on the anniversary of the revolution.[4] In September 2014, Yasmin Habib was punched, pulled by her hair and arm, and verbally abused.[5] The attack on Mohamed el-Gamal, who was shot inside Nasr City court’s prosecution office after a verbal altercation with a police superintendent and prosecution secretary, provoked an uproar.[6] In protest of this attack, the Bar Association announced that it was suspending work in Nasr City court.[7]

 

 

Another uproar occurred when the deputy sheriff of the Faraskur police station in Damietta attacked lawyer Emad Fahmy with a shoe. In response, the Bar Association declared a general strike in June 2015, which is what prompted President Abdel Fattah el-Sisi to offer lawyers the aforementioned apology.[8] The apology reveals the gravity of the abuse and the depth of the problem between lawyers and the Ministry of Interior.

 

 

Besides the verbal and physical abuse exemplified above, the security forces have perpetrated another kind of abuse: the fabrication of charges against lawyers. For example, in August 2015 lawyer Abdel Aziz Youssef was arrested at his home in al-Sharqiyya and charged with demonstrating [without authorization], belonging to the banned Muslim Brotherhood organization, and disrupting public transportation and facilities.[9] He was acquitted of these charges in November 2015.[10] Similarly, lawyer Islam Salama was recently arrested in his home and forcibly disappeared for a number of days. He reappeared in the Zefta prosecution office on the charges of belonging to the Muslim Brotherhood and possessing [banned] literature.[11]

 

 

These are two among many examples of lawyers being arrested and charged most likely on account of their defense of opponents of the current regime. The arrest of lawyers without a warrant from the public prosecution is a violation of Article 51 of the Legal Profession Law.[12]

 

 

Likewise, the use of guns to prevent lawyers from entering the Qasr al-Nil police station following the arrest of protesters opposing the Egyptian-Saudi maritime border demarcation agreement had a strong impact.[13] In the wake of this abuse, the Bar Association issued a statement rejecting “all forms of abuse” to which lawyers have been subjected. The statement announced that the necessary notifications were being filed against the abuser, and that members of the Bar Association’s council had been assigned to pursuing all legal measures and submitting the necessary notifications to the public prosecutor.[14]

 

 

Human rights lawyer Malek Adly was also arrested. His charges included attempting to overthrow the government and broadcasting false news, statements, and rumors, including that the islands of Tiran and Sanafir belong to Egypt. The arrest occurred after Adly rejected the government’s relinquishment of these islands by filing a case before the administrative judiciary to annul the Egyptian-Saudi maritime border demarcation agreement, which had transferred them to Saudi Arabia.[15] Adly was tortured, and the public prosecution propagated the rumor that he was drunk at the time of his arrest in order to discredit him. Furthermore, during interrogation the prosecution asked Adly about his view on the 2008 sit-in staged by real estate tax officials, the Giulio Regeni case, and the downing of the Russian airplane [Flight 9268].[16] These questions indicate that Adly was arrested on account of not only the accusations against him, but also his political views.

 

 

The public prosecution’s performance in this incident leads to a discussion of the relationship between the public prosecution and the judiciary, on the one hand, and lawyers, on the other.

 

 

The Violation of Lawyers’ Right to Defend by Judges and Prosecutors

 

 

The security forces are not the only party abusing lawyers, for the courts, judges, and prosecutors are also violating the right of defense, which reveals the depth of the crisis between judges and lawyers. Although Article 49 of the Legal Profession Law clearly stipulates that lawyers have a right to be treated with due respect by courts and all other bodies before which they appear, lawyers have made many complaints about mistreatment by judges and public prosecutors. Recently, lawyers have been increasingly refusing to plead in certain courts or court chambers on account of the intransigence exercised against them. For example, the Bar Association decided not to appear or plead before Chamber 24 of the Alexandria Criminal Court because of lawyers’ complaints about mistreatment by the chamber president.[17] Similarly, in February 2016 the Matruh Subsidiary Bar Association, in coordination with the National Bar Association, announced a general strike and staged a sit-in at the court premises because of the public prosecution’s intransigence.[18] The prosecution’s behavior included violations of the Code of Criminal Procedure’s texts pertaining to the right of defense and the rights of accused persons. One of the lawyers’ complaints was that the prosecutors’ guards were acting as intermediaries between them and the prosecutors, and interrogating them about their reasons for requesting meetings with these prosecutors. This practice reveals the prosecutors’ lack of respect for lawyers and that they consider themselves to be of a superior standing.

 

 

The same disrespect and sense of superiority is revealed by the decisions barring lawyers from entering the State Security Court,[19] the relocation of the public prosecutor’s office from its historical premises in the High Court of Justice to the Al Rehab district in Cairo’s suburbs (near the Suez border),[20] and the conducting of investigations and trials inside police stations.[21] All of these measures cause severe difficulties and additional economic costs for lawyers.[22] Lawyers have also been prevented from meeting with the Prosecutor General and the prosecutors working in the new premises; an official has been delegated to meet lawyers and determine their access to the Prosecutor General or prosecutor in question. This measure is indicative of the condescending view that prosecutors, judges, and the Ministry of Justice hold of lawyers. It also reveals that they do not consider lawyers to be partners in establishing justice and the rule of law, as stipulated in the Egyptian Constitution.[23] Furthermore, the abovementioned measures directly violate the right of defense, the right of defendants to due process, and other constitutional guarantees.[24]

 

 

Additionally, Judge Nagy Shehata’s remarkable intransigence toward lawyers has necessitated intervention by the Bar Association. Shehata has dealt harshly with a number of lawyers pleading before him and referred some, such as Ragia Omran, to investigation on the charge of contempt of the court bench.[25] He has also responded inflexibly to requests made by the defense. The best example is the incident involving lawyer Khaled Ali during the “cabinet incidents” case, after which lawyers decided to refrain from appearing in court. The Bar Association issued a statement prohibiting lawyers from appearing in court or taking on the case. In the statement, the Bar Association stressed that “Slighting and belittling lawyers is unacceptable behavior from any judicial or executive official, irrespective of his or her standing” and that it “will no longer accept half measures in affirming its constitutional belief in guaranteeing the right of defense and rule of law, and that its partnership with the judiciary in realizing justice is one that no person may harm or denigrate”.[26] This statement clearly reflects the Bar Association’s defense of the dignity of lawyers and their right to carry out their work. It also reflects the depth of the crisis that the profession is currently suffering due to the belief that lawyers are “second class” to judges. This belief sets the profession back more than a century to 1910 –before the Bar Association’s establishment– when a number of lawyers began demanding that prosecutors and judges stop disregarding them and start treating them as peers.[27]

 

 

Similarly, the judicial authorities’ current view of lawyers as judicial assistants on par with scribes, ushers, and experts –a view that judges tried to incorporate into the 2011 Judicial Authority Bill– also takes us a century backward to a time when the profession was not yet titled “law”, and was considered a “trade” that anyone could practice.[28]

 

 

One of the most important demands that lawyers made to extract a recognition of their role from judges and prosecutors in 1910 was the establishment of a bar association to unite them and defend their rights. The lawyers also demanded legal articles guaranteeing their independence in their work. But at present, a century after the Bar Association’s establishment, how is it that lawyers are making the same basic demands that they were making a hundred years ago? This question will be addressed in the second installment of this article.

Who Protects Egyptian Lawyers? (II)

 

 

This article is an edited translation from Arabic.

 

 

__________

[1] According to the opinion that lawyer Malek Adly expressed in an interview I conducted with him on December 1, 2015.

[2] Ibid.

[3] See: Sheban Hedya’s, “The Killing of Abd al-Harith Madani: the Beginning of the Lawyers’ Clash with the Government”, published online by Youm7, April 27, 2009.

[4] See the paper “Violations against lawyers”, issued by the Egyptian Initiative for Personal Rights.

[5] See: “In Facts: the Beating, Insulting, and Killing of Lawyers: Police Violations Against the Black Robe”, published online by ElWatan News, July 12, 2015.

[6] See: “The Incident of a Police Superintendent Shooting a Lawyer in the Nasr City Court Sets Alight Legal Circles”, published online by Al Bawaba, July 12, 2015.

[7] See: “Lawyers on a Hot Plate: Police Superintendent Shoots Lawyer, Prosecution Holds the Accused and the Gun”, published online by Sada El Balad, July 12, 2015.

[8] See: “Egypt: el-Sisi Apologizes After Policeman Attacks Lawyer”, published online by BBC Arabic, June 7, 2015.

[9] See: “Arabic Network Condemns Detention of Human Rights Lawyer Abdel Aziz Youssef, Bar Association Calls for Adopting Serious Stance Against Security Force Violations Against Lawyers”, published online by the Arabic Network For Human Rights Information, August 18, 2015.

[10] See: “Lawyer Abdel Aziz Youssef Innocent of the Charge of Unauthorized Demonstrating”, published online by the Arabic Network For Human Rights Information, November 16, 2015.

[11] The news appeared in “Zefta Prosecution Imprisons Islam Salama, Lawyer of the Forcibly Disappeared, for 15 Days on the Charge of Belonging to a Banned Group and Possessing Publications and Books”, published online by Albedaiah, March 10, 2016.

[12] Article 51 of the Legal Profession Law stipulates that “A lawyer shall not be interrogated, nor shall his office be searched, without the knowledge of a public prosecutor. The Public Prosecution must inform the Council of the Bar Association or of the subsidiary bar association before beginning the investigation of any complaint against a lawyer in due time. If the lawyer is accused of a felony or misdemeanor relating to his or her work, the president of the Bar Association or the president of the subsidiary bar association or a lawyer delegated by him or her may attend the interrogation. The Council of the Bar Association or of the subsidiary bar association concerned may request images of the interrogation free of charge”.

[13] See Mona Seif’s April 15 2016 publication.

[14] The statement was published on April 27, 2016, on the Facebook page of Sameh Ashour, president of the Bar Association.

[15] See: “Rights Lawyer Malek Adly and Activist Zizo Abdo Exhibit Signs of Abuse After Arrest”, published online by Mada Masr, May 6, 2016.

[16] Ibid.

[17] The news appeared in “Bar Calls Upon Members to Refrain from Pleading Before Chamber 24 of Alexandria Criminal Court”, published online by Youm7, February 23, 2016.

[18] The news appeared in “Lawyers Strike and Suspend Work in Matruh Court and Prosecution in Protest Against Prosecution’s Intransigence”, published online by Youm7, February 13, 2016.

[19] Interview I conducted with lawyer Khaled Ali on November 26, 2015.

[20] Ibid.

[21] Interview I conducted with lawyer Malek Adly on December 1, 2015.

[22] Interview with Khaled Ali, op. cit.

[23] Article 198 of the Constitution stipulates that “The legal profession is a free profession which participates with the Judicial Authority in the establishment of justice and the rule of law, and ensures the right to defense. It shall be practiced by independent attorneys”.

[24] See Articles 96 and 98 of the Constitution.

[25] Interview I conducted with lawyer Fatma Serag in November 2015.

[26] ElWatan published the statement’s text on November 22, 2014, in “Lawyers Prohibited From Pleading Before ‘Cabinet Incidents’ Court”.

[27] Amr Shalakany, The Rise and Fall of Egypt's Legal Elite: 1805-2005, Dar Al-Shorok, 2013.

[28] See chapter 3 (“The Legal Profession: From the Bottom of Society to the Top: 1883-1952”), ibid.