Egypt: Delayed Justice

in Stéphane Lacroix and Jean-Pierre Filiu (ed.), Revisiting the Arab Uprisings: The Politics of a Revolutionary Moment, C Hurst & Co (Publishers), 2018, p. 219-234., 2018

Nathalie Bernard-Maugiron offers a contrasting perspective on Egypt, where a highly biased version of transitional justice—or, in other words, no transitional justice at all—was implemented. Since February 2011, criminal cases against state officials have been dropped and fact-finding committees investigating massacres perpetrated by state officials either delivered conclusions favorable to the perpetrators or were silenced. In contrast, since the summer 2013, Muslim Brotherhood leaders and members, as well as secular revolutionaries, have been heavily prosecuted and subjected to harsh sentences.

'Beyond Conventional Transitional Justice: Egypt’s 2011 Revolution and the Absence of Political Will', International Journal of Transitional Justice, Vol. 6, No. 2, 2012, pp. 318-330., 2012

After Egypt's January 2011 revolution ousted former President Hosni Mubarak, a conversation began amongst a number of international and Egyptian human rights groups regarding the need to promote international transitional justice precedents within the Egyptian context and to raise public awareness of them. This note argues that, in many ways, the Egyptian revolution surpassed the bounds of reformist transitional justice agendas. It begins by identifying two specific limitations in their scope: regarding the accountability of external actors and regarding the guarantee of economic and social rights. The article then describes the more far-reaching conceptions for change that were communicated in the key demands and subsequent campaigns of the 2011 revolution. Finally, it argues that Egypt's transition itself has stalled, as the ruling military council lacks the political will to propel transitional justice, rendering such discussions premature. It recommends that international practitioners take their cues from Egyptian actors negotiating these challenges, rather than proceeding without sufficiently questioning the context.

Transitional Justice in the Middle East and North Africa (ed. Chandra Lekha Sriram, Hurst Publishers 2017), 2017

When Egyptian courts sentenced over 1,000 defendants to death in the spring of 2014, and when former President Hosni Mubarak was months earlier acquitted of human rights violations despite decades of documented torture, serious questions arose about the independence of the judiciary. Of all Egyptian institutions, the judiciary’s history of resisting executive interference caused many to believe it to be the least likely to partake in such affronts to individual rights. A closer look, however, reveals that Mubarak’s efforts to curtail judicial independence successfully produced a conservative body whose top echelon supported the law and order narrative that facilitated the generals’ return to rule. As a result, legal reforms are unlikely to come from within the judiciary. This chapter argues that transitional justice did not occur in Egypt following 2011 and stood little chance of occurring for three reasons. First, despite valiant efforts by revolutionary opposition groups that triggered the January 25th uprising, a political transition never materialized. And without a political transition, transitional justice is improbable. Second, a conservative judiciary whose top echelon had been effectively coopted by Mubarak’s centralized executive played a key role in ensuring that no political transition could occur. Finally, the different opposition groups calling for transitional justice, and in effect a political transition, diverged in their expectations of what that entailed. Revolutionary groups including youth activists, labor activists, and progressives called for thick rule of law that would overhaul the legal system substantively, rather than only procedurally. As they chanted “The People Want the Fall of the Regime,” they demanded that government affirmatively improve the lives of Egyptians through distributive justice. In contrast, established secular liberal opposition groups and the Muslim Brotherhood (MB) were satisfied with establishing thin rule of law that enforced procedural protections against everyone, including the political elite. The established opposition was focused on reforming the existing legal system rather than developing new structures to redress decades of political suppression and corruption. In the end, transitional justice proved elusive, denying many Egyptians a remedy for decades of tyranny under Mubarak. In analyzing why the courts failed to meaningfully hold Mubarak era officials accountable, Section I begins by examining rule of law as a contested concept whose definition depends on the proponent’s ideological leanings. Section II proceeds to describe the restraints on Egypt’s judiciary leading up to January 25th which contributed towards its circumspect stance toward the uprising. The executive branch had put in place various structural mechanisms to restrain the judicial leadership from being led by judges acculturated and empowered to uphold the law irrespective of its impact on the executive’s power. Indeed, independent adjudication entailed prohibitively high costs to a judge’s professional and personal life, including unfavorable judicial appointments, disparate disciplining and transfers, and denials of certain promotions. The Judicial Authority Law of 1972 that governs the judiciary coupled with informal coercive tactics incentivize judicial self-censorship and voluntary compliance with executive branch expectations. Finally, Section III examines how Egypt’s judiciary impeded the transitional process through its cooperation with the Supreme Council for the Armed Forces (SCAF) and defiance of Morsi. Specifically, the SCAF’s constitutional declarations and executive decrees were consistently upheld as lawful while the Morsi regime’s actions were heavily scrutinized by a skeptical judiciary with an apparently obstructionist agenda. Indeed, the Supreme Constitutional Court issued decisions clearly aimed at handicapping a president from the long distrusted MB. Although the judiciary is not monolithic, a sufficient number of judges at the helm of a centralized governance structure, coupled with a powerful and politicized prosecutor-general, had vested interests in cooperating with the military-security apparatus to sabotage the young revolutionaries’ reform efforts and prevent any systemic restructuring of the political and economic system.

2017

The Journal of African Studies, 2023

Analysing transitional justice mechanisms in the non-liberal transition of post-revolutionary Egypt, from the overthrow of Hosni Mubarak to the election of ‘Abd al-Fattah al-Sisi, this article seeks to enhance the understanding of the character of the transition period and the re-establishment of authoritarianism in Egypt, but also to shed light on the implications of the manipulation of transitional justice in order to bolster repressive structures in non-liberal transitions. Based on analysing transitional justice as a contested process whose mechanism and outcomes are shaped according to specific domestic power structures and coalitions, the article argues that the ability of Egypt’s elites, led by the military, to control the transitional justice process and to manipulate it to enhance their power and interests depended on their coercive capacity but was also a product of their ability to utilise the deep gaps among political forces, which had different interests and perceptions regarding transitional justice (reformative or revolutionary) in order to create shifting alliances and agreements on the boundaries of transitional justice and hence affect its outcomes.

2016

January 2016 David Risley was the U.S. Department of Justice Attaché and Legal Advisor at the U.S. Embassy in Cairo from 2010 to 2015. There he liaised with the Egyptian judiciary, the Public Prosecution Office, and the Ministry of Justice. Risley analyzes the structural and systemic issues within Egypt’s judiciary and explores the tension between its regressive and progressive trends. Risley argues that while events of the past few years have led some in the judiciary to use their powers as a blunt instrument to get back at perceived enemies of the judiciary or the state, there are influential progressive and reform oriented judges that are trying to move the institution forward. These efforts deserve international support.

Democratization, 2009

Penn State Law Review, 2016

As the Middle East is gripped with political instability and violence, Western policy makers As the Middle East is gripped with political instability and violence, Western policy makers and scholars are confounded by how populist, non-violent mass uprisings in the so-called “Arab Spring” ultimately strengthened authoritarianism in the region. In particular, what has come to be known as Egypt’s “January 25th Revolution” has produced little more than a switching of the guards in the presidential palace. While attempting to predict Egypt’s future would be a fool’s errand, there is much to learn from the past four years. For legal scholars, an examination of the Egyptian judiciary’s role in the post-January 25th aftermath is a salient and under-researched topic in comparative law that depicted a liberal judiciary – when in reality it was quite the opposite. Specifically, Egyptian judges proved to be much less impartial and resistant to accountability than the revolutionary youth had anticipated. The mass death sentences against thousands of alleged Muslim Brotherhood members, life sentences to the youth that lead the January 25th revolution for violating a dubious anti-protest law, and convictions of journalists on specious evidence put into question the legitimacy of Egypt’s judiciary in the minds of the Egyptian public and the international community. In the end, the judges’ rulings sealed the fate of the revolution. The rule of law scholarship on the Middle East has yet to take into account the impact of the momentous events of the so-called “Arab Spring” on Arab judiciaries and the role judges played in quashing the popular uprisings. For instance, the scholarship on Egypt is based largely on studies of human rights lawyers and political opposition groups in the 1990s leveraging Egypt’s highest administrative and constitutional courts to expand political and social rights. Indeed, civil society’s reliance on the courts at the time, as opposed to the streets, to restrain authoritarian practices was due in large part to the judiciary’s liberal leanings within an illiberal political context. Although Mubarak’s regime granted the court some latitude as part of a broader strategy of depoliticization that decreased the political costs of the growing predatory state, the courts’ rulings nonetheless emboldened civil society to push for more political rights. The human rights litigation that preceded the January 25th uprisings produced a protective constituency that vigorously defended the courts against overt executive interference in judicial independence. As a result, students of Egypt’s deteriorating political and economic indicators expected Egypt’s judiciary to be a bastion of support for calls for systemic rule of law reforms by the young revolutionaries, established opposition groups, and burgeoning new political parties. Because events in Egypt carry significant weight in the Middle East, a close examination of its post-Arab Spring experiences offers valuable insights into events unfolding in other Middle Eastern countries. Accordingly, this Article cautiously proceeds to examine why the Egyptian judiciary, despite its liberal rulings in the 1990s that facilitated the lead up to the January 25th revolution, ultimately obstructed the populist demands for revolutionary change. In doing so, the Article makes an intervention in the literature on rule of law in societies undergoing political transitions, and more specifically the role of judiciaries. Scholars have long stated that Egypt’s judiciary as one of the few state institutions willing to challenge executive authority and among the most independent judiciaries in the Middle East. This article challenges this position by arguing that the Egyptian judiciary opposed revolutionary reform efforts for four reasons. First, Mubarak’s concerted efforts since 2001 to quash judicial independence through coercive mechanisms imposed top-down by the loyalist judicial leadership effectively coopted a critical mass of judges. Second, the revolutionary youth and civil society failed to appreciate the judiciary’s circumscribed definition of judicial independence that did not include judicial accountability to the citizenry. Third, the judges’ elite notions of democracy viewed populism as a threat to the stability of the state and more specifically to the judiciary’s institutional interests. Finally, internal divisions within the judiciary with respect to the role of religion in adjudication coupled with longstanding suspicions of the Muslim Brotherhood as an authoritarian organization pushed judges into the arms of the military-security apparatus that sought to preserve the status quo. In sum, the judges preferred the devil they knew over the devil they did not know.

Summary Report 16, 2017

Following the ‘Arab Spring’ uprisings in the Middle East and North Africa, many had high hopes not only for democratization but also for transitional justice to address the myriad abuses that had taken place in the region, both during the uprisings and for decades prior to them. Despite these hopes, most of the transitions in the region have stalled, along with the possibility of transitional justice. This volume is the first to look at this process and brings together leading experts in the fields of human rights and transitional justice, and in the history, politics and justice systems of countries such as Egypt, Tunisia, Libya, Algeria, Bahrain and Morocco. While these countries have diverse histories, political institutions, and experiences with accountability, most have experienced non-transition, stalled transition, or political manipulation of transitional justice measures, highlighting the limits of such mechanisms. These studies should inform reflection not only on the role of transitional justice in the region, but also on challenges to its operation more generally.