The Egyptian Judiciary in the Age of the Republic: The Role of Internal Conflicts in Controlling the Judicial System

• Author: Shams Al Din Al Hajjaji
• Pages: 363-396

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2017 e Institute for Migrant Rights Press

e author wishes to extend his deep gratitude and thank to Laurent Mayali, Mark

Bevir, Pranoto Iskandar, and Luc Heuschling for their constructive comments, and

Claire Weyland and Sarah Ingle for their helpful edits, and my wife for her continuous

help and support.

THE EGYPTIAN JUDICIARY IN THE AGE

OF THE REPUBLIC

THE ROLE OF INTERNAL CONFLICTS IN CONTROLLING

THE JUDICIAL SYSTEM

Shams Al Din Al Hajjaji

Egyptian Judiciary

E-mail: salhajjaji@aucegypt.edu

e Egyptian judiciary has struggled against the executive authority for the past

decades. is struggle has seen many losses and gains. It has paved the road for

the judiciary to play a role in the constitutional process in the last ve years.

Many scholars present this judicial struggle as a conict between the executive

and the judiciary. However, the history of the internal conicts among judges

remains a mystery or is merely implied. Such conicts have taken on various

forms based on the political regime in power. As a result, this research argues

that the struggle was not only between political regimes and the judiciary, but

also expressed itself in an internal conict among the members of the judiciary.

is research is limited to the Republic period, lasting from 1952 to 2014. is

period can be divided into seven dierent eras. is research, however, separates

the history of the Republic into just six main eras, due to excluding the al-Sisi era

(2014-18), given that he was still in power during the writing of this research. It

is historically unfair to document incomplete periods, despite this constituting

one of the worst periods in judicial history. Accordingly, this paper limits itself

to presenting the internal conicts witnessed during only six eras. ese eras

involve the transition period aer the monarchy, also known as the Mohamed

Naguib era (1952-54), the Nasser era (1954-70), the al-Sadat era (1970-80), the

Mubarak era (1980-2011), the SCAF era (2011-12), the Mohamed Morsi era

(2012-13), and the transition period following the military coup, also known as

IV Indonesian Journal of International & Comparative Law 363-96 (April 2017)

364

Al Hajjaji

the Mansur era (2013-14).

Keywords: Judicial Reform, Legal Reform, Comparative Law, Islamic Law, Constitu-

tional Law.

I. INTRODUCTION

e Egyptian judiciary has struggled against the executive authority

for the past decades.1 is struggle has seen many losses and gains.

e Massacre of the Judges of 1969, and 2016 were among the major

losses. A large number of judges has been impeached for their political

position.2 As for the gains, the 2014 Constitution grants judges some

advantages, such as administrating their budget,3 independence of ap-

pointment of senior judges4 and the Attorney General.5 Many scholars

present the Egyptian judicial struggle as a conict between the execu-

1. T M, T S  C P: L, P-

  E D  E 10-20 (2007).

2. For judges’ massacre of 1969, see in that regard, Sarah Wol, Constraints on the

promotion of the rule of law in Egypt: insights from the 2005 judge’ revolt, 16 D-

 102 (2009). As for the judges’ massacre of 2016, see Ahmed

Abouelenein, How Egypt’s Crackdown on dissent ensnared some of the country’s

top judges, R I, (Oct. 18, 2016), http://www.reuters.com/

investigates/special-report/egypt-judges/.

3. C   A R  E, 18 Jan. 2014 art. 185 (stat-

ing “All judicial bodies administer their own aairs. Each has an independent

budget, whose items are all discussed by the House of Representatives. Aer

approving each budget, it is incorporated in the state budget as a single gure,

and their opinion is consulted on the dra laws governing their aairs.”).

4. Id. art. 193 (stating “e General Assembly chooses the Court’s President from

among the most senior three vice-presidents of the court. It also chooses the

vice-presidents and the members of its Commissioners Authority, who are ap-

pointed by a decree from the President of the Republic. e foregoing takes

place in the manner dened by the law.”).

5. Id. art. 198(2) (stating “public prosecution is carried out by a Prosecutor Gen-

eral who is selected by the Supreme Judicial Council from among the Deputies

to the President of the Court of Cassation, the Presidents of the Court of Ap-

peals or the Assistant Prosecutor Generals, by virtue of a presidenti al decree

for a period of four years, or for the period remaining until retirement age,

whichever comes rst, and only once during a judge’s career”.).

365

e Egyptian Judiciary in the Age of the Republic

Al Hajjaji

tive authority and the judiciary.6 However, the history of internal con-

icts among judges remains a mystery, and has been merely implied.

is was due to either the fear of aggravating the divide among judges,

or due to the internal cleansing process within the judiciary. As a result,

this paper argues that the struggle was not only between political re-

gimes and the judiciary, but also expressed itself in an internal conict

among members of the judiciary.7

Such conicts have taken various forms based on the political

regime in power at the time.8 During the Nasser and Al-Sisi eras, the

internal conict was manifested in participating of judges in military

coups, in addition to political trials of Islamists. During Al-Sadat’s era,

the internal conict took on a more hushed form. While judges, who

were proponents of the regime were granted the best positions and

secondments, opponents struggled with poor work placements and

average wages. During Mubarak’s era, the conict was a combination

of Nasser’s, and Al-Sisi’s eras. Judges were able to oppose the regime

without risking impeachment.

is paper applies a mixed approach in studying the Egyptian

judicial history. It tracks the history of the internal conict among

judges during several historical periods. is approach amalgamates

the two major historical approaches. e rst approach limits judicial

study to certain eras.9 It documents most of the judiciary aairs during

these periods or a certain period.10 It either limits the historical study

6. A S, I -I -N -Q -M-

  , 277 (2013); see Nathan J. Brown & Hesham Nasr, Egypt’s Judges Step

Forward: e Judicial Election Boycott and Egyptian Reform, P O-

 D   R  , http://www.maoum.com/

press8/241S21.pdf. See also, T -B, A-Q A-M -

-- -, 64 (Dar Al-Shorouk, 2006).

7. Bruce Rutherford, Sur viving under Rule by Law: Explaining ideological Change

in Egypt’s Muslim Brotherhood during the Mubarak Era, in T R  L,

I,  C P  E  I 250-52 (Siad

Amir Arjomand & Nathan Brown eds, 2013).

8. R H, S’ P: I L  S   M-

 W 50 (); see also, R W B, S  A-

: S  E’ P S 120 ().

9. Id. at 253.

10. N B, T R  L   A W: C  E