Ryan J. Suto's Blog

30 April 2014

Proven Guilty: Egypt’s Judiciary and the Undermining of Democracy

This post was written for  the Atlantic Council and can be found here.


Through the recent spate of death sentence rulings and an apparent unwillingness to challenge the interim government, Egypt’s judiciary has positioned itself as a close ally to the regime, undermining any illusion of impartiality. But how did Egypt’s judiciary get to such a perilous state, and what does this mean for Egypt’s prospects for democracy? 

Before January 2011, Egypt’s judiciary had long been a reasonably independent democratic institution with respect to the autocrat’s influence: actions of former President Hosni Mubarak have been openly opposed by Egypt’s judges. This was an example of the judiciary’s “very strong sense of loyalty to the Egyptian state,” rather than any particular political leader. Despite the judiciary having been shaped by regular appointments andpolitical court packing by Mubarak, the judiciary presented a possible hope toward creating real democratic institutions in Egypt. This was because the existence and relative importance of democratic institutions within an authoritarian regime would have bearing on how the transitional phase proceeded. 

However, after Mubarak was toppled and former President Mohamed Morsi elected, the judiciary became its own political actor in Egypt. In order to reverse Mubarak’s loyalist court-packing of the judiciary, the 2012 constitution allowed for Morsi to engage in forced retirements. This led to a rivalry of sorts between the judiciary and the Muslim Brotherhood’s Morsi, including the court-ordered dissolution of the Islamist-dominated People’s Assembly and culminating in Morsi’s November 22 decree holding presidential actions beyond judicial review. A few weeks later, Morsi supporters blocked access to the Supreme Constitutional Court, forcing the judges to postpone a ruling on the constituent assembly and Shura Council, both also stacked with Islamists members. This episode set the tone for the derision the judiciary holds with respect to the Muslim Brotherhood today. 

Earlier this year a new constitution gained affirmation through referendum in Egypt. The 2014 constitution contains a similar broad structure to every Egyptian constitution since 1971, including a judiciary which is an independent, unelected branch of government responsible for objectively ruling in legal disputes (See Egypt’s constitution, Article 184). Moreover, the branch is populated by appointments by either the president (Article 193) or the judiciary itself (Article 189), shielding the branch from legislative influence. The 2014 constitution gives the judiciary more independence than any other constitution in Egypt’s history. As such, while the Egyptian judiciary is constitutionally independent, it lacks relative judicial independence, which is a balance between structural independence and political accountability. Though this structure is not unique to Egypt, the judiciary’s structural hyper-independence and years of appointments by Mubarak has created a perfect storm to play out in the current political context. 

Since the interim government took control on July 3, 2013, the judiciary has struck down no governmental action where challenges could have, and should have, been made. No judicial organ has challenged either theprotest law or the terrorism law, the language and enforcement of which likely violate constitutional Articles 54 and 55 regarding due process guarantees, Article 65’s freedom of expression, and relevant articles of the International Covenant on Civil and Political Rights. The judiciary has actually aided the interim government’s persecution of its perceived enemies by convicting dissidents under the aforementioned laws, declaring the Muslim Brotherhood a terrorist organization, jailing journalists, and nowbanning the secular April 6 Movement.

The most dramatic episode of judicial bias has been the sentencing of over 1,000 Morsi supporters to death for the killing of several state security officers, other violence, and incitement to violence. Specifically, On March 24 a Minya judge convicted 529 people to death. 37 of those convictions were upheld on Monday, as the rest were lowered to a life sentence (25 years in prison in Egypt). These convictions will be appealed by the defense once more, while the prosecutor general has already filed an appeal today. On Saturday he handed down a sentence of 57 to 88 years to 11 defendants, on Sunday he sentenced 42 more for up to fifteen years in prison, and on Monday another 683 were sentenced to death. Among those sentenced on Monday is the Muslim Brotherhood’s Supreme Guide, Mohamed Badie. Egypt’s courts have also sentenced several secular activists, among them the founding member of April 6, Ahmed Maher, to three years in prison. These decisions have come without even the fa├žade of due process, and Egypt has not seen complementary trials of security officials for the death of nearly 1,000 people during the clearing of theRaba’a sit-in. Almost all security officers charged with killing protesters in the lead up to Mubarak’s ouster have been found not guilty.

Perhaps more important than the jurisprudential precedents these actions set, is the extent to which they have undermined any confidence in the judiciary as an objective arbiter of the law. Because the branch is unelected, its legitimacy lies not with reflecting popular will, but maintaining popular faith that it operates without political bias and instead maintains a large degree of fidelity to the constitution and notions of justice. However, judges have frequently affirmed laws, either actively or complicity, which are overly vague, in violation of international law, and prima facie unconstitutional. Moreover, the judiciary has dutifully sentenced regime enemies to death or lengthy prison terms on spurious grounds. Going forward, the perception of the courts as another arm of either the military or the government will give opposition parties and dissenting organizations no incentive to take disagreements to the courtroom. 

Trust in democratic institutions must slowly be built in the political culture of transitioning societies if democracy is to consolidate. By politicizing their decisions, the judiciary has removed itself as a possible trusted conflict mediator for any group, especially the Muslim Brotherhood. Even if free and fair elections bring forth a popularly elected legislature, that branch is unable to sanction the rulings or members of the judiciary, insolating judges from any structural need to respect popular will. As such, the Egyptian people have little reason to believe that justice will be done when they go to the courtroom, thus incentivizing other avenues of conflict resolution, such as increased violence. The judiciary’s self de-legitimization has undermined the rule of law and will prevent Egypt from consolidating democracy until judges can be viewed by a vast majority of the citizenry as impartial.

02 April 2014

Presidential Election Law Raises Serious Concerns

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.


This weekend, the Egyptian government released a presidential election law to govern the upcoming elections for a new Egyptian head of state. Aside from having certain required provisions, the law may allow for the violation of civil and political rights in Egypt largely due to the finality of the decisions of the Presidential Election Committee and the various provisions enshrining the role of that body in the campaign media landscape of Egypt.
The law calls for a nationwide majoritarian election, which can take place over one or more days. In several areas, the law allows for a second round of elections, but it does not provide the criterion for when such a round would be appropriate or required until Article 39. Under this article, a candidate must win at least 50%-plus-one votes. If this number is not met, the top two vote-getters will run in a run-off election. Aside from the unusually late appearance of such a fundamental aspect of electoral design, many other concerns exist with the law. Below are more detailed notes and some concerns about specific provisions of the law.

Eligibility

The eligibility criteria for running for the presidency laid out in Article 1 of the presidential election law comports with the same requirements for presidential eligibility found in Article 141 of the current constitution. Similarly, the endorsement requirements found in Article 2 comport with those found in Article 142 of the constitution. However, because the interim government has ordered the presidential election first, the eligibility path involving the House of Representatives specified in Article 142 is not functional. As such, candidates cannot gain eligibility from the endorsement of members of the House of Representatives. In addition, write-in candidates are not eligible to be elected, as they would not have met the signature requirements specified in both the constitution and the electoral law. This eligibility system means that for this election, an individual who is unable to collect thousands of citizens’ signatures spread across the country (as specified in the alternative eligibility method) will be unable to run.
Under Article 36, a candidate running unopposed can be elected if at least 5% of the registered voters cast ballots for him. If this does not occur, the election is run again. It is unusual for an election law to prepare for the possibility of a presidential candidate to run unopposed, especially considering that two candidates have already declared intentions to run. While this could be simply a sign of the law accounting for all possible circumstances, this could also be interpreted as a signal that the government may disqualify all but one preferred candidate.
Lastly, Article 12(9) states that a candidate must affirm that he has not been convicted of any crime of untrustworthiness.

Administration

Article 3 of the law empanels a Presidential Elections Committee (PEC) comprising the head of the Constitutional Court, the President of the Cairo Court of Appeal, the Senior Vice-President of the Supreme Constitutional Court, the Senior Vice-President of the Court of Cassation, and the Senior Vice-President of the State Council. Under Article 6, this body has the sole jurisdiction over, inter alia, announcing the opening of presidential candidacy, devising and overseeing the implementation of the necessary procedures to establish candidacy for the presidency (according to the eligibility requirements elsewhere specified), verifying the application and enforcement of the rules governing the election campaign provided in the law, and taking proper actions against violations.
It is unclear, however, how this body interacts with the National Elections Commission (NEC) established by the constitution. Under Article 209 of Egypt’s new constitution, that body is “administered by a board made up of 10 members selected equally from among the vice-presidents of the Court of Cassation, the presidents of the Courts of Appeal, the vice-president of the State Council, the State Affairs and Administrative Prosecution.” Moreover, under Article 208, the NEC is “exclusively responsible for managing referenda and presidential, parliamentary and local elections.” The jurisdictions of both bodies are incredibly similar, though both are given exclusive authority over their competencies. There is no apparent benefit to having two separate committees, the memberships of which arise from similar judicial bodies, that both have exclusive jurisdiction over largely similar functions of electoral administration. Indeed, they are both structured as electoral management bodies (EMBs).
Regarding the setting of dates for the election, Article 16 states that the PEC must announce a final list of eligible candidates “at least 20 days before elections.” Article 18 sets the campaign period from the day the candidates are announced until two days before the election. Campaigning can only occur during this time. Generally, the PEC has a wide range of discretion with respect to setting timetables with respect to administering the presidential elections.

Media and Campaigning

The PEC has broad discretion over much of the administration of this election, and the area of media and campaigning is no exception. First, Article 19(2) prohibits the “threatening of national unity and using religious slogans to divide the public or to discriminate among citizens.” Similar language has been used to suppress individuals campaigning for a “no” vote during the recent constitutional referendum as well as to marginalize Islamist parties.
Article 20 requires state-owned media to be committed to give equal coverage of candidates, and Article 21 lists requirements for publishing polls. Although these requirements have the potential to translate into incursions on freedom of speech, they can be reasonable and legitimate limitations in the volatile setting of transitional elections if administered sparingly and in an unbiased manner. Similarly, Article 22 sets a maximum for campaign spending (EGP 20 million), and Article 23 limits campaign contributions to 2% of that maximum. Article 24 prohibits campaign contributions from non-natural (juridical) or foreign persons. Article 43 specifies a fine for those who are registered to vote but do not do so without an excuse. This clause, though not regularly enforced, is common in Egyptian election law. Throughout the document, the PEC is given the discretion to determine violations and appropriate remedies.
Under Article 6(11), the PEC notably has the competency to “[establish] guidelines for the participation of the media and Egyptian and foreign civil society organizations in following the election process.” This gives the PEC the authority to regulate election-observers and media coverage during the election and (presumably) during the campaign period as well. Article 6(10) allows for the PEC to “[invite] voters to participate in the election,” and Article 8 allows the body to “educate citizens about the importance of the presidential election.” In the context of previous elections and referenda in Egypt, this may allow for the PEC to continue the state-run propaganda similar to the government’s urging of Egyptians to vote for the current constitution which was experienced earlier this year.

Appeals

A previous version of Article 7 of this law allowed for the appeal of a decision of the PEC to the Supreme Administrative Court within one week after a decision is announced. This was similar to language found in Article 210 the constitution, which allows for the appeal of decisions of the NEC to the same body. However, the final version of Article 7 allows for no appeals of the decisions of the PEC to any higher authority, making the body the first and final word on electoral disputes within its listed competencies.  Later in the law, Articles 13-15 outline the procedures for appealing the original decisions of the PEC, but these appeals are reviewed by the PEC itself, not by any external actor. Lastly, Article 27 allows the PEC to set up regional subcommittees, and Article 28 both allows those subcommittees to count votes and allows approved media and observer groups to attend the vote-counting. Again, challenges to the decisions of the subcommittees of the PEC are only heard by the PEC, not by any other authority.
Largely because of the inability to appeal the decisions of the PEC described above, several individuals and groups have expressed concern with the law, such as the Nour Party, Tayar al-Sha’aby, the Egyptian Organization for Human Rights, Dostour PartyMohamed Abdel Abdul Aziz (Tamrod), Mohamed Kamal (April 6th Movement), Mohamed Fasil (Kefaya Movement)Khalid Ali, and Nour Farahat. These detractors have generally argued that this law violates Article 97 of the constitution, which states, inter alia, “The State shall guarantee the accessibility of judicature for litigants and rapid adjudication on cases. It is prohibited to immunize any administrative act or decision from judicial review.” This point is debatable, however, as the PEC is composed entirely of members of the judiciary, and as such, it could structurally be considered a judicial body (not an administrative one). That interpretation would mean that the internal challenges of the PEC’s decisions do legally constitute judicial review within the meaning of Article 97. However, as the similarly structured (and similarly functioning) National Elections Commission created in the constitution allows for appeals to the Supreme Administrative Court, one could argue that the constitution would envision any Egyptian EMB to also issue decisions appealable to the Supreme Administrative Court.

Overall Impressions

This election law creates some of the necessary guidelines required for the administration of an election, including many provisions regarding out-of-country voting, equal-time media provisions, and electoral fraud protection. However, Article 47 prohibits insulting members of the PEC, Article 48 prohibits the use of intimidation or terror during the election, and Article 52(1) prohibits the threatening or use of force to prevent others from voting. These articles present a potentially dangerous mix of protecting the electorate and inhibiting the free political expression of Egyptians. Along with the points noted above, and considered in its entirety, this law may lead to violations of the political and free expression rights of Egyptian citizens.
Moreover, the PEC has broad discretion over the administration of the election, and its decisions are not appealable to an external body. The PEC is also composed entirely of presently-empaneled members of the judiciary. This creates a potential for discrimination against candidates who are out of favor with the judiciary by the possible use of the various not-externally-appealable powers of the PEC to disqualify potential candidates.
While laws themselves do not render an election free and fair or illegitimate, this law allows the government, and specifically the PEC, broad discretion to make policies and take actions that could call into question the legitimacy and reliability of the results of the election. Given the actions of the interim government so far, from passing an anti-protest law to the propaganda campaign and opposition crackdown leading up to the recent constitutional referendum, this law offers little in the way of signs that the interim government intends to change course during the upcoming presidential campaign and electoral periods.

Human Rights Treaties in Egypt: as Good as the Government that Upholds Them

This post was written while at the Tahrir Institute for Middle East Policy and can be found here.


Egypt’s constitution has recently garnered praise for its “commitment to abide by international human rights treaties signed by Egypt.” Yet a close analysis shows that such praise may yet be premature; the commitment can be easily circumvented by Egypt’s soon-to-be elected House of Representatives.
The relevant section of the new constitution, Article 93, states in full:
“The state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”
Plainly, ratified human rights treaties are now considered Egyptian domestic law. Nathan J. Brown and Michele Dunne call this article “a potentially major innovation,” but note that it is only as good as the courts which interpret it. Heba Morayef of Human Rights Watch noted that the article offers Egyptians stronger human rights protections than the 2012 constitution.
This constitutional article incorporates international treaties as part of Egyptian domestic law without the requirement of enabling legislation, exhibiting the characteristics of legal monism. In a monist legal system, the judiciary can generally interpret and apply international law as it would domestic law. Like other legal monist countries, Article 151 requires the legislature to approve treaties in order for them to be ratified.1 This approval is taken as the requisite sovereign action of affirming the role of a treaty as law within the state.
The key issue here, then, is how a treaty functions as a statute within a domestic legal system. The Egyptian constitution is unusually lucid on this point: treaties have the force of law. (That is, international treaties are to be treated the same as legislation.) As such, these treaties enter Egyptian law as statutory law; they are subject to the legal concept of leges posteriores priores contrarias abrogant, which holds that if two laws are passed which are prima facie contradictory, the law passed most recently is enforced.
Of course, in most legal systems a more recent statute is often interpreted in an attempt to avoid the implicit repeal of a previous statute. Moreover, the rebuttable presumption of conformity2 assumes that domestic legislation is intended to comport with the treaty obligations of the state. What is clear, however, is that the Egyptian legislature can nullify the force of previously ratified human rights treaties by passing legislation which explicitly contradicts them.
Brown and Dunne are certainly correct in pointing out the importance of the judiciary in enforcing the statutory role of international human rights treaties within Egyptian domestic law. However, perhaps just as important will be the role of the House of Representatives. While any political discussion must wait until the body is actually elected, the House has the effective ability to negate the legal effects of a ratified treaty by a simple majority vote.3
It is possible, however, that such a statute would be considered complementary legislation under Article 121, as it may be construed to “organize the rights stipulated in the constitution.” In this case, such a statute would require a two-thirds majority approval in the House. Nonetheless, this is still quite different from a formal amendment process to change the constitution, which is found in Article 226. That article states that a constitutional amendment must be approved by two-thirds of the House and pass a public referendum.4 While it is unclear how exactly legal challenges of this nature would play out, it is clear that Article 93 can be effectively appealed without consulting the Egyptian people, in contrast with any other constitutional article. As Article 93 has been widely considered a high point in the constitution, this subtle fact of the Egyptian constitution is important to note.
This analysis thus far has ignored the Article 2 requirement that legislation is to be crafted with sharia as a source of inspiration. While this language has evaded precise definition during its decades of presence in various Egyptian constitutional documents, its place in the constitution undoubtedly holds it superior to the statute-equivalent ratified human rights treaties. That is to say that international human rights conventions are held inferior to Egypt’s Supreme Constitutional Court’s interpretation of Article 2.5
While this is important to note when considering legal challenges in Egyptian courts, the Supreme Constitutional Court generally does not strike down legislation for violation of Article 2. Additionally, as the Article 93 text specifically mentions treaties, it is silent regarding customary international law. This means that enabling legislation in the House is possibly required to bring in customary international law in as part of Egyptian law. As such, international norms not codified in treaties ratified by Egypt have no domestic legal effect.
What does this all mean for the average Egyptian? Right now the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (with important reservations) are all a part of Egyptian law. But Egyptians will want to be careful about those for whom they vote over the next few months—they will be empowered with the ability to negate these documents.