Proponents of an independent judiciary hope that the appointment of a president to Egypt’s highest appeals court on Sunday will pave the way for the reform of a judiciary they feel has been largely corrupted since the reign of former President Hosni Mubarak.
While analysts are guardedly optimistic, they admit that the process of reform will be a difficult one.
Hossam al-Gheriany was appointed on Sunday to serve as the president of the Court of Cassation. The appointment stipulates that he will also chair the Supreme Judicial Council (SJC), which is regarded as the most influential position within Egypt’s judiciary.
The SJC also includes the president of the Cairo Court of Appeals, the attorney general, the two most senior vice presidents of the Court of Cassation and the two most senior presidents of the other appeals courts.
Gheriany is a leading figure in the independent judiciary movement, which challenged the regime of former President Hosni Mubarak, charging it with systematic interference of the executive in judicial affairs. Gheriany, along with other judges, launched the group in 2005, when it called for an independent judiciary after parliamentary elections that were apparently rigged, despite judicial oversight.
“Beforehand, this post was monopolized by senior judges who were close to the former regime and tools in punishing judges who criticized the government for its interference in the judiciary,” said Mahmoud Kandil, a lawyer and human rights expert who is optimistic about Gheriany’s new role.
In 2006, two senior judges (Mahmud Mekki and Hisham Bastawisi) were transferred by then then SJC President Fathi Khalifa to a disciplinary tribunal because of their harsh criticisms of the ruling regime.
“[Gheriany] is a fair judge and this would give the whole judiciary a sense of trust. He is also a fighter for the independence of the judiciary,” said senior judge Ahmed Mekki, an influential figure in the independent judiciary movement who retired on Sunday.
The SJC has the authority to promote judges, and allocates and administers court budgets. Financial independence is a key component of the struggle over the future of the judiciary, with the former regime exerting its control over the judiciary’s budget in order to pressure judges.
Some experts, though, warn that Gheriany’s appointment is not a cure-all for the multitude of problems facing the judiciary.
“It’s a very encouraging move to have Councilor Gheriany as president of SJC. But we have to be careful about his role. What we need now is a complete change of the whole legal framework that regulates the judiciary in order to limit the interference of the executive upon the judiciary,” said Nasser Amin, director of the Arab Center for the Independence of the Judiciary and the Legal Profession.
Advocates for judicial independence say that its attainment is constrained by a lack of budgetary autonomy and frequent delays in hearing cases. Gheriany’s appointment will not change that overnight.
In a previous article, some experts told me that:
Egypt’s judiciary may not be capable of handling the volume of cases needed to prosecute all of the corruption cases. Scores of police officers accused of killing protesters are now on trial around the country, and some even face the death penalty.
Hesham Genina, one of the leading figures in the movement for judicial independence told Al-Masry Al-Youm that one of Gheriany’s main aims will be to draft a new law guaranteeing full independence for Egypt’s judiciary. But while the new SJC president can push for alterations to the laws regulating the judiciary, the changes will still require the approval of Egypt’s military rulers.
“The current law which regulates the judiciary [law no. 142/2006] doesn’t guarantee the judge’s full independence, since the budgetary independence of the judiciary is limited. The financial management of courts and judges is still controlled by the government, which can simply allocate a small amount of money to the justice system,” said Amin.
Moreover, frequent delays in trials and a shortage of judges, particularly in the Court of Cassation, continue to present challenges to the justice system itself. Remedying these problems will require changes to the judicial law as well.
The Court of Cassation, according to many lawyers, is currently overloaded with cases, raising questions about its ability to deal with a potential new wave of trials of members of the former regime.
“The main test for Gheriany right now is to organize the Court of Cassation,” said Kandil. “Now we are witnessing the cases of the former regime being heard in criminal courts. All who are convicted will have the right to appeal to the Court of Cassation, which means a new load for the court.”
American scholar Nathan J. Brown wrote that:
Egypt has one of the most highly developed and influential judicial structures in the Arab world. Because modern judicial reform began in Egypt much earlier than other countries, and because of the early development of legal education in Egypt, many Arab countries have drawn on Egyptian models, Egyptian experts, and often Egyptian personnel when embarking on their own programs of judicial reform.
In 2006, the former regime summoned two leading reformist judges to a disciplinary hearing. Amy Hawthorne and Hesham Nasr wrote that:
Fissures within the judiciary—most of Egypt’s 8,000 judges endorse the reform agenda, but are essentially loyal state employees, leaving only a few hundred genuine activists—hinder the mobilization necessary to make the government truly feel the heat.
This post was published in a slightly different manner in Al-Masry Al-Youm