Who Protects Egyptian Lawyers? (II)

2016-07-21    |   

In recent times, the law profession in Egypt has clearly been weakened. This weakness may be traced back to the 1952 military movement and the general encroachment of the security authorities on the legal and judicial authorities that followed. However, it also stems from the current poor state of legal education, which is a result of the proliferation of law faculties and the increase in the number of law graduates. Another issue is the substandard curricula used by these faculties and their dependence on rote learning and neglect of academic research. The vocational and intellectual preparation of lawyers is also poor,[1] which directly impacts their work and their ability to advance the profession, and indirectly impacts the role of the Bar Association.[2] The weak state of the law profession and its lack of appeal is expected to negatively impact the relationship between lawyers and judges, prosecutors, and the police.

This article, the second in a two part series, will discuss the protection guaranteed to lawyers to both allow them to carry out their work independently, and [to shield them] against any intransigence or violation of their rights. It will explore both the lawyers’ legally stipulated immunity, and the Bar Association’s role in ensuring this protection and independence.


Lawyers’ Immunity: Ink on Paper

Articles 50 and 51 of the Legal Profession Law grants lawyers immunity while carrying out their work,[3] guaranteeing their independence and protecting them from intransigence on the part of police, judges, and prosecutors. Article 54 of the same law grants lawyers the same immunity from insults and threats during, or on account of, their work that is enjoyed by members of the court bench.[4] In practice, however, this immunity is not upheld. As shown in the earlier installment of this article, lawyers are being insulted, arrested, threatened, and referred to investigation in complete contravention of the Legal Profession Law’s articles.

The immunity granted to lawyers became a subject of contentious debate in 2011, and again during the drafting of the 2014 Constitution. Lawyers demanded that an article enshrining their independence in the course of their professional work be included in the Constitution, but judges opposed it, arguing that it would afford lawyers special immunity on par with their own. The lawyers’ demands for an article prohibiting their imprisonment for crimes related to their professional activities or committed during the course of them also went unfulfilled, for the Constitution stipulated that lawyers may be imprisoned in “flagrante delicto” cases (i.e., if they are caught red-handed).[5] Lawyer Malek Adly believes that this text allows judges or prosecutors to “trap” lawyers by baiting them into committing “contempt of the judicial authority”.[6] Lawyers thus became the weak link between judges and police officers. Although each group performs a complementary legal function, only the judges and police officers enjoy [effective] legal protection. The protection guaranteed to lawyers, on the other hand, remains ink on paper, easily circumvented on the pretext of “flagrante delicto” and “contempt of court or of the judicial authority”.

The same charge led to the 1929 lawyers’ revolt. After three lawyers were fined for “disrespecting the bench” while pleading, the Bar Association held an irregular general assembly. The lawyers believed that these fines constituted an abuse that limits their ability to freely defend their clients’ interests. As a result of this incident, the Legal Profession Law was amended to prohibit the imposition of any such fines on lawyers.[7] However, the Bar Association presently avoids taking a similarly strong stance, which raises a question about its reasons for not doing so.


The Bar Association from 1912 to 2016: What Changed?

In 1910, Aziz Khanki –[who would later become one of the Bar Association’s founders]– sent Minister of Justice Saad Zaghloul a letter explaining the need for such an organization. In it, he noted that “the law profession cannot properly perform its function unless it has stature and respect, which can only occur if its independence is guaranteed and its dignity preserved. The profession can only be independent and its dignity upheld if its members form an official body that fights for the defense rights of freedom, independence, and justice and defends the honor of lawyers and the profession in all matters concerning their practice, conduct, and interaction with judicial and prosecution personnel”.[8] Khanki thus linked the dignity and independence of the law profession to the existence of a syndicate that defends lawyers and their rights. This link necessitates an examination of the Bar Association’s current role amidst all the aforementioned violations, particularly its role in defending lawyers and the law profession.

Since its establishment in 1912, the Bar Association has continually adopted strong and effective positions in defense of lawyers and their independence and worked to advance the profession. I mentioned earlier some examples of stances that the Bar Association took in defense of its members during the 1920s and after the killing of the lawyer Abd al-Harith Madani in 1994. These events and the positions adopted in their wake indicate that while the violations [currently] afflicting lawyers are not novel, the Bar Association’s indolent stance is. The organization’s position on the arrest of Malek Adly may be the most telling evidence of its declining role. The organization has not considered Adly’s case a syndicate issue. It stated that it dispatched its lawyers to defend Adly and that it rejects the political prosecution of lawyers,[9] but it has not adopted a strong or stern position to confront such prosecution or to prevent its future occurrence. Nor has it taken any measures to put a stop to Adly’s solitary confinement in excess of the 30 days stipulated by law, or the violations he is enduring in custody. Conversely, several international organizations have sent letters demanding Adly’s release and protection for Egyptian lawyers. For example, the Council of Bars and Law Societies of Europe sent a letter demanding “in all circumstances, that all lawyers in Egypt are able to express their opinions and perform their professional duties without fear of reprisal, hindrance, intimidation or harassment”.[10]

Similarly, the most telling sign of the Bar Association’s weak influence over the state is the fact that the constitutional text pertaining to the law profession was passed in the abovementioned form, even though lawyers aspired for a text that protects their independence and guarantees their ability to perform their job fully. The Bar Association has also not issued any statement condemning the barring of lawyers from the State Security Court prosecution building, deeming it a political issue even though some lawyers have filed a case before the State Council to attain access.[11] Nor has the Bar Association issued any statement on the relocation of the Prosecutor General’s premises to Cairo’s suburbs, or on the condescending treatment that lawyers receive in the new premises. In the same vein, many lawyers have opposed the Bar Association’s handling of several of the issues mentioned earlier, including the attack on the Damietta lawyer (despite President el-Sisi’s apology),[12] the arrest of lawyer Islam Salama, and the issue of imprisoned lawyers. Additionally, the Bar Association has issued no statement condemning the denial or shortening of visits in prisons such as Scorpion Prison. Nor has it issued a statement protesting any violation of rights and freedoms stipulated in the Constitution. This indolence reflects the Bar Association’s retreat into a traditional role limited to providing services to lawyers and legally defending them when the need arises.

The Bar Association’s indolence in addressing the issues affecting lawyers has reached the point where a large number of them consider the organization paralyzed. They see it as a nominal body that merely issues professional licenses and cannot provide any other benefits, be they material, health-related, or moral. This view is reflected by the abstinence of a large number of lawyers from participation in the Bar Association’s elections, be it via voting or candidacy.

The decline in the Bar Association’s role began following the July 1952 movement as a result of several factors. The many constitutional and legal violations that occurred during this period prompted a general decline in all of the legal professions. Between 1952 and 1954, the Bar Association was also engaged in a direct confrontation with the Free Officers on account of the aforementioned violations, the battle over the Constitution, and other issues which led to the dissolution of the Bar Association’s council in 1954 and the military’s appointment of a president for the organization. Additionally, the government of the time attempted to exclude anyone considered part of the old elite, which naturally included lawyers.

The state’s policy of increasing the number of lawyers by increasing the number of law departments and abolishing all criteria for enrolling in them has also significantly impacted the Bar Association and its role. Presently, approximately 600,000 lawyers are registered with the Bar Association. Such a high number surely puts pressure on the organization’s resources and role. This large number also facilitates the state’s infiltration of what is considered the largest professional syndicate in Egypt. The number necessarily includes persons not working in the profession, which obstructs the growth of a strong bond between members. Many lawyers have long been calling for a purge of the lawyer registers. The Bar Association, has for a long time, been trying to carry out such a purge but has thus far not achieved any tangible result. Note that there are more than 20,000 law students at Cairo University alone.

These large numbers impact compliance with the Bar Association’s decisions. For example, when the Bar Association decides on a total or partial strike, compliant lawyers are surprised to find a large number of their colleagues disregarding the decision. This inevitably damages the Bar Association’s image and reduces the influence its decisions generally have on the judiciary, prosecution, and state.

Besides the numbers issue, the absence of a Bar Association cadre capable of reforming and changing the organization’s discourse is an important factor contributing to the decline in its performance. For example, junior lawyers[13] are prohibited from running for positions in the councils of the Bar Association or subsidiary bar associations, even though they constitute the largest and youngest cohort among registered lawyers. Consequently, they are unable to partake in syndicate activity and decision making at an early time [in their careers]. This issue prompted the Egyptian Center for Economic & Social Rights to contest the constitutionality of Article 133 of the Legal Profession Law.

Moreover, the Bar Association’s political perspective on certain issues may prevent it from taking strong and clear stances against violations. For example, its political dealings reflect on its ability to take a strong stance against attacking lawyers with claims that they belong to banned organizations or are Islamists, as well as claims of incivility or misconduct.[14] The Bar Association’s selectivity in defending lawyers generally dissuades lawyers from rallying around it and subsequently weakens any stance that it adopts.

Who Protects Egyptian Lawyers? (I)

This article is an edited translation from Arabic.


[1] According to an opinion expressed by lawyer Khaled Ali in an interview I conducted with him.

[2] According to an opinion expressed by Fatma Serag in an interview I conducted with her.

[3] For article 51, see footnote no. 12 of this article’s first installment. Article 50 stipulates that “A lawyer shall not be arrested or remanded for the offenses stipulated in the previous article or the offenses of slander, abuse, or insult because of statements or writings that he or she made or issued during or on account of his or her performance of any of the professional activities mentioned in this law. In the case of such an offense, a brief of what occurred shall be written and referred to the Public Prosecution and a copy provided to the Bar Association Council. The Prosecutor General may institute proceedings if the lawyer’s actions constitute a crime punishable under the Criminal Code, or he or she may refer the lawyer to the Bar Association’s Council if said actions are merely a breach of order or professional duty, in which case the trial shall occur in a confidential hearing. Neither the judge nor the members of the body before which the wrongdoing occurred may participate in the case’s examination”.

[4] Article 54 of the Legal Profession Law stipulates that “Whoever attacks a lawyer or insults him or her with a gesture, statement, or threat while he or she is performing his or her professional activities or on account of said activities shall be punished with the penalty stipulated for persons who commit this crime against a member of the court bench”. This article was employed for the first time by the Mansoura Misdemeanor Court on March 24, 2016, to punish a person who attacked a lawyer. The court thus acknowledged the immunity afforded by the article.

[5] Article 198 of the Constitution stipulates that “All attorneys shall have, while performing their duties to uphold the right to defense before the courts, the guarantees and protection granted to them by the law. Such rights shall also be granted to them before investigation and inquiry authorities. Except in cases of flagrante delicto, the arrest or detention of attorneys while exercising their right to defense shall be prohibited. The foregoing shall be determined by the law”.

[6] Interview I conducted on December 1, 2015.

[7] See: Amr Shalakany, The Rise and Fall of Egypt's Legal Elite: 1805-2005, Dar Al-Shorok, 2013, Chapter 3: “The Legal Profession: From the Bottom of Society to the Top”.

[8] Letter quoted in ibid.

[9] See the Bar Association’s statement issued on May 6, 2016.

[10] See: “International organizations demand Malek Adly’s release”, published online by Mada Masr, June 17, 2016.

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

[12] See: “Objections to the Management of Damietta Lawyer Issue Despite el-Sisi’s Apology”, published online by Veto, June 7, 2015.

[13] In Egypt, lawyers enter the Bar Association as “partial” or trainee lawyers. After two years, they are registered as junior (“elementary”) lawyers. After five more years, they are registered as appellate lawyers. After ten more years, they are allowed to plead before the Court of Cassation.
[14] According to Malek Adly in an interview I conducted with him.

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