Cairo – As Egypt gears up for further protests, divisions over President Mohamad Morsi’s recent decrees to solidify his power have had a polarising effect on the judiciary, one of the country’s most sacred institutions.
“As judges, we are fully disappointed by Morsi’s declaration. We think this declaration goes against democracy, and against the independence of the judiciary.“
– Senior Egyptian judge
Morsi’s declaration has led to a judicial boycott by some judges, while others say what the president is doing is justified, and those refusing to hear cases are playing politics.
The Judges Club – an unofficial organisation of judges within the judiciary, primarily made up of those opposing Morsi’s policy decisions – called for a boycott of the courts until Morsi rescinds his declaration.
The Judges of Egypt, another unofficial club of judges, held a press conference of its own, reassuring the public that despite the boycott they would ensure courts and legal proceedings would continue to operate normally.
The Supreme Judicial Council, the official body representing about 12,000 judges nationwide, initially came out against Morsi’s decrees, calling it an “unprecedented attack on judicial independence”. But the council later struck a more even-handed note, saying it was open to dialogue with Morsi on the matter.
“As judges, we are fully disappointed by Morsi’s declaration,” one senior judge told Al Jazeera on condition of anonymity because of the sensitivity of the issue. “We think this declaration goes against democracy, and against the independence of the judiciary.”
Several courts across the country closed in adherence to the boycott, and according to this judge, they will continue to halt legal work until Morsi cancels his declaration.
“[Morsi] had the option of introducing transitional measures through legal means, but he chose not to, which goes against the spirit of the revolution,” the judge said, adding that certain amendments could have been made through consultation with the Supreme Judicial Council.
Yet many members within the Supreme Judicial Council have defended the moves taken by Morsi – as long as they are temporary.
Mohammad Rifaat, head of the Appeals Court, said the Judges Club’s unilateral boycott of the courts risked it “becoming a state within the judiciary”.
“The Judges Court has been against the revolution, and is adopting certain political stances,” he said.
|Former prosecutor general Abdel Maguid Mahmoud [Reuters]|
While tension between the president and Egytian judges has simmered from the day he took office, the friction came to a head last week when Morsi, in his second attempt, sacked the prosecutor general Abdel-Maguid Mahmoud and assigned himself powers over the legislative and executive branches. His declaration included giving himself immunity from the courts.
Morsi and his supporters insist the measures were necessary to push the country forward and cleanse it of the remnants of the former regime, as previous attempts had failed because of obstacles erected by the very people they wanted to purge.
Following the backlash over what has been deemed authoritarian-like moves – which has even led to the resignation of several of his own advisers – Morsi made another speech insisting the changes were only temporary until the constitution had been properly amended.
In October 2012, Morsi first attempted to remove Mahmoud as prosecutor general by offering him the post of ambassador to the Vatican. The minister of justice at the time, Mahmoud Mekki, said Mahmoud had accepted the offer, but when his resignation was announced, Mahmoud publicly rejected it, insisting he would remain as prosecutor general.
Rifaat backed Morsi’s sacking of Mamoud saying the move was legitimate.
“If the former general prosecutor was doing his job properly, there would not have been a demand by the people for him to be removed. If the general prosecutor was doing his job in protecting the rights of the people, there would not have even been a revolution,” said Rifaat.
Mahmoud is seen as a supporter of Hosni Mubarak, having been appointed by the former president, and often viewed as working against the goals of the revolution.
Mahmoud oversaw the investigations of Mubarak, his sons, and former Interior Minister Habib El Adly. He also led the probe into those recently acquitted in the case of the “camel battle”, when attackers riding the animals beat protesters in February 2011. Eleven demonstrators were killed and thousands were wounded.
The issue of the trials is one of the main points of contention since the revolution.
Protests were held last week marking the November 19, 2011 anniversary of violence that led to the deaths of 47 people and injuries to hundreds on Cairo’s Mohammad Mahmoud street. It was a reminder for many that in 22 months since the revolution, not one senior official has been held accountable.
Scuffles ensued between demonstrators and the authorities, eventually leading to the issuance of the decrees by Morsi.
Despite these obstacles facing the new government, many judges and lawyers are wary of the new declaration.
“Politically, this is an incredibly horrible precedent to have,” said Amr Shalakany, a professor of law at the University of Cairo.
“It is a complete lie that these means are necessary to rid the country of the old regime.“
– Amr Shalakany, University of Cairo
“It’s also quite ironic to see the Muslim Brotherhood using the very same tools Gamal Abdel Nasser used in 1956,” as the Muslim Brotherhood was most affected by that former president’s decrees.
“It is a complete lie that these means are necessary to rid the country of the old regime,” Shalakany said. “The president could have passed laws and gone through legal channels, and he has chosen not to do so.”
Furthermore, Morsi’s moves will not have much of a legal effect on the trials of former Mubarak-regime members and its supporters, he said. “Unless they can provide new evidence or a new accusation, he cannot retry them, legally speaking. They still have to abide by due process.”
While some changes have been made following the revolution, they remain largely cosmetic with a number of senior Mubarak-era officials keeping their positions under the military-led transitional government, most notably in the Ministry of Interior.
“The judiciary is not as corrupt as the Interior Ministry, nor the Information Ministry,” said Shalakany, who added both remain rife with “old regime” figures.
More important legal changes are needed other than those addressed in Morsi’s decrees, he said. “They [Morsi’s administration] could have changed the media law, for example, or the police law, but they haven’t. And these are the most pressing of all issues.”
Shalanky warned while Morsi had claimed his decrees were temporary, that could turn out not to be the case.
“I am a lawyer and from my point of view on the surface, these do not look like temporary measures,” Shalanky said. “The intention may be for them to be temporary, but they are not in nature. Their nature is so corrosive, they go completely against the rule of law, and this is what is dangerous.”