Egypt Courting Chaos and Controversy

picks 26 July، 2018

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Egypt Courting Chaos and Controversy: A report by Guernica Group and The Cordoba Foundation – July 2018

The circumvention of the rule of law, human rights and fundamental freedoms by the Egyptian Judiciary:

The Guernica Group is an international initiative that brings together experienced litigators, investigators and other professionals who work to bring perpetrators of international crimes and grave human rights violations to justice; seize their ill-gotten assets for the benefit of their victims; and strengthen systems of accountability, truth-telling, reparation, and non-recurrence.

The Cordoba Foundation is an independent strategic think-tank that works to promote intercultural dialogue and positive coexistence, through a range of activities including research and publications,training and capacity building , policy briefings and dialogues.

Executive Summary

Over the past two years, the Egyptian State Litigation Authority has commissioned a number of reports to examine a number of issues, including the history of the Muslim Brotherhood and its involvement in Egyptian politics.
The reports have sought to demonize the group and cast them as the catalyst behind a number of concerns that Egypt has faced, both historically, and more latterly, following the ‘Arab Spring’; specifically, post Tahrir Square protests and the election of President Mohammed Morsi.
Guernica 37 International Justice Chambers have been instructed by The Cordoba Foundation to assess those reports and undertake an independent investigation into the issues raised therein.
Two reports have already been published.1
This is the third report in the series, and is arguably, the most important as it examines the Egyptian legal system in response to the State Litigation Authority’s report that seeks to deny the suggestion that the rule of law in Egypt has been undermined.
In short, the State Litigation Authority’s report is propaganda, and seeks to justify the fact that the protections provided by the Egyptian Constitution, domestic legislation and international law, are ignored to such an extent that the Egyptian legal system is now merely another tool of the State to silence opposition and further oppress a people whose democratic rights are already seriously curtailed.
Addressing by way of critical analysis specific issues raised in the State Litigation Authority’s report, this piece of research provides an objective overview of the historical development of the Egyptian legal system, with an emphasis on the criminal justice system.
It is notable that historically, as is highlighted in the initial chapters of this report, the Egyptian system was seen as a ‘beacon’ in the legal landscape of the Middle East, to such an extent that it was replicated, on an almost universal basis, throughout the region.
However, this example to others wasn’t to last, and it wasn’t long before ‘military rule’, or at least its significant involvement in the political system, began in Egypt.
This involvement, in what ought to be a citizen-led system, was to further develop so as to permeate all aspects of Egyptian life; a position that despite the Tahrir Square protests and the removal of the autocratic regime of Hosni Mubarak, continues today.
This is despite free and pluralistic democratic elections being held and the Egyptian populace electing President Mohammed Morsi.
As has been discussed in previous reports, Morsi won office following a process that independent international experts determined was free, inclusive and fair.
Despite the introduction of democracy to Egypt, and therefore to a degree, its citizens securing what it demanded in the demonstrations, the first democratically-elected President was removed by way of military coup d’état, and therefore the status quo was maintained insofar as the ruling class was concerned.
Not only was it maintained, but with the drafting of a new constitution the military provided itself with significant opportunity to further its own power and did so with the explicit intention of removing the reforms brought about by Morsi which limited the military’s influence within the political sphere.
In one of its first actions and as soon as the opportunity arose, the post-Morsi regime immediately limited the democratic rights and freedoms of citizens.
Further, this report looks at the elements of Egyptian domestic legislation, including its constitution, and considers those protections that look to guarantee fundamental rights and freedoms, and offer relevant fair trial protections.
These domestic provisions are considered alongside Egypt’s international obligations, including those under treaties such as the Universal Declaration on Human and Peoples Rights, and the International Convention on Civil and Political Rights – treaties that are often viewed as the foundation for the international observance of human rights.
This report considers the rights that purportedly exist in Egypt and how they are protected; starting with one of the most fundamental systems of protection – the judiciary, and therefore, an independent judiciary. It is only through a fiercely independent judiciary that both the principle of the separation of powers can exist and a system of protection can develop.
The State Litigation Authority claims that Egypt’s judiciary is independent; however, as will be observed in later chapters, the fact that a court makes an appropriate decision does not mean that the court in question, or for that matter, the wider judiciary is legitimate.
The report relies on a handful of justifiable decisions to defend its position; however, as the analysis in later chapters of this report demonstrates, a legitimate decision does not legitimate an otherwise illegitimate decision – and as the plethora of decisions considered below shows, the Egyptian judiciary is anything but independent.
This fact, however, is entirely at odds with the constitution which clearly guarantees the position as it also guarantees fair trial rights.
The position espoused in this report is that the degree of influence exercised by the executive, the entirety of the judiciary is under its influence and beholden to its whims.
This report therefore asks, whether on an objective basis, does the judicial system respect the principles of the Universal Declaration on Human Rights (UDR), the International Covenant on Civil and Political Rights (ICCPR) and the African Charter etc. As we demonstrate, the short answer is that it does not, and therefore it cannot be said to be independent or have any respect for the fair trial principles that we go on to consider, with the background of a number of recent criminal cases that have come before the courts and are discussed accordingly.
As has been alluded to, an essential feature of any democracy is an individual’s right to a fair trial.
The State Litigation Authority report suggests that the fact that there are examples where an individual has successfully appealed a sentence or conviction is evidence of the system working properly. Further, that fair trial rights are respected as where there are issues these can be duly rectified on appeal.
This report contends the above position is not sustainable as this is yet another example of the State manipulating facts to suit a particular narrative.
We devote a full chapter to fair trial rights: what they are and how they should operate in practice. In pursuit of objectivity, cases cited by the authority are considered here, as are those the authority conveniently ignores such as the mass trials at Mina where hundreds were convicted in a matter of hours. In this instance, the accused were prevented from adducing evidence in their defence or even challenging allegations made against them by the prosecution.
Further, the chapter on fair trials examines the legality of trials in absence, something that we have seen used with increasing frequency in Egypt since the unlawful removal of President Mors. This appears to be a deliberate tactic on the part of the executive, the prosecution and the judiciary, one being utilised to circumvent procedural safeguards. An example of this being the trial, conviction and sentencing of individuals for offences, despite the fact that they were imprisoned in other countries during the relevant time, or even, on occasion, dead.
We seek to take this position further and refer to the mass incarcerations of what the authority would have us believe are terrorists, but in reality, are either political opponents, or merely individuals who have sought to advance a position that may be different, or contrary, to that maintained by the government.
These individuals are not only subjected to a judicial system that has no respect for their rights, but they are forced to endure inhumane and degrading treatment, including the systematic use of torture.
The report from the authority would suggest that torture is not used, much less used on a systematic basis. However, it fails to answer the complaints of those victims, and further, it has refused to commence any investigation to those allegations of torture made.
This report concludes that the current judicial system in Egypt is part of an assembly line of abuse comprising of a manipulation of the judicial system, the crackdown of fundamental rights and freedoms, therefore the erosion of democracy and its foundation pillars.
The following pages shed light into the Egyptian judicial system today. It highlights serious ignorance of its own constitutional and legislative protections, and further, its ignorance of international law. This is all designed, it would appear, to strengthen the state’s grasp on power currently held by President Sisi and his supporters.