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Egypt The Judiciary, Civil Rights, and the Rule of Law
The Egyptian legal system was built on both the sharia (Islamic
law) and the Napoleonic Code introduced during Napoleon Bonaparte's
occupation and the subsequent training of Egyptian jurists in
France. Until they were abolished in the 1940s, consular courts and
mixed courts (of foreign and Egyptian jurists), products of the
capitulations, had jurisdiction over cases involving foreigners.
Until the l952 Revolution, there was a separate system of religious
courts that applied the law of personal status, ruling in matters
of marriage, divorce, and inheritance. Sharia courts had
jurisdiction over Muslims while the Coptic minority had its own
communal courts. Under the republic, religious courts were
abolished and their functions transferred to the secular court
system, although religious law continued to influence the decisions
of these courts, especially in matters of personal status. In 1990
Egypt's court system was otherwise chiefly secular, applying
criminal and civil law deriving primarily from the French heritage.
In the 1970s and 1980s, however, Muslim political activists had
fought with some success to advance the impact of the sharia in
adjudication; for example, they were influential in reversing a
liberal law of personal status decreed under Sadat that had
expanded the rights of women. They also achieved the passage of a
constitutional amendment making the sharia in principle the sole
source of legislation, a potential ground for ruling
unconstitutional a whole corpus of secular law.
Under the Constitution, the executive is prohibited from
"interfering" in lawsuits or in the affairs of justice. Judges are
appointed for life and cannot be dismissed without serious cause.
This provision did not deter Nasser from a wholesale purge of
politically hostile judges in the late 1960s, but his action was
the exception. Under Sadat, who sought to replace revolutionary
with constitutional legitimacy, the role of the judiciary was
largely respected. Although often annoyed by their rulings in
political cases, Sadat eschewed any purge of judges and resorted
instead to the creation of exceptional courts for political
offenses; for its part, the judiciary was able to ensure that a
majority of appointees to these courts be trained judges. The
presidency, nevertheless, continued to enjoy considerable influence
over the judiciary since judicial appointments are a presidential
prerogative. Judges were considered functionaries of the Ministry
of Justice, which administered and financed the court system. The
president headed the Supreme Council of Judicial Organs, which
established regulations governing the judiciary.
The base of the court system was made up of district tribunals,
single-judge courts with jurisdiction over minor civil and criminal
cases. (Minor civil cases involved less than ŁE250, and minor
criminal cases were punished by less than three years'
imprisonment.) Over these there was in each governorate at least
one tribunal of first instance, which was composed of a presiding
judge and two sitting judges. These tribunals of first instance
dealt with serious crimes and heard appeals from district courts.
Seven higher-level courts of appeals in Cairo (Al Qahirah),
Alexandria (Al Iskandariyah), Tanta, Asyut, Mansurah, Ismailia (Al
Ismailiyah), and Bani Suwayf were divided into criminal and civil
chambers; the former tried certain felonies, and the latter heard
appeals against judgments of the tribunals of first instance. The
Court of Cassation in Cairo heard petitions on final judgments
rendered by the courts of appeals, made on grounds of defective
application of the law or violation of due process. It had a
president, fifteen vice-presidents, and eighty justices. Alongside
these courts of general jurisdiction were special courts, such as
labor tribunals and security courts, headed by the Supreme State
Security Court, which heard cases involving political and military
security. A three-level hierarchy of administrative courts
adjudicated administrative disputes among ministries and agencies
and was headed by the Council of State. The Office of the Public
Prosecutor, headed by the attorney general and staffed by his
public prosecutors, supervised the enforcement of criminal law
judgments. At the apex of the judiciary was the Supreme
Constitutional Court made up of a chief justice and nine justices.
It settled disputes between courts and rendered binding
interpretations in matters that were grave enough to require
conformity of interpretation under the Constitution.
The rule of law expanded in the post-Nasser era, and judges
became a vigorous force defending the legal rights of citizens
against the state. Nonpolitical personal rights, much restricted
under Nasser, were effectively restored under Sadat. It was a sign
of the new political climate he fostered that not only were private
property rights considered inviolable but also the courts proved
zealous in defending the rights of those charged with abuse of
public property. Political rights were less secure. In contrast to
Nasser, Sadat allowed private criticism of the government, but
rights of public assembly were circumscribed by draconian laws
against even peaceful protest and the distribution or possession of
"subversive"--normally leftist--literature. Although the courts
frequently dismissed charges on such offenses, those arrested
nevertheless often spent much time in jail, nor have the courts
been able to restrain the regime when it wanted badly enough to end
dissidence. While Islamic radicals have been regularly subjected to
arbitrary arrest, the most dramatic case of the "iron fist" was the
1981 crackdown when Sadat arrested about 1,500 of Egypt's most
prominent public figures.
Under Mubarak the independence of the courts and their role in
expanding constitutional rights and procedures grew. Courts
overturned a ban on the New Wafd Party, threw out the Electoral Law
of 1984, and declared unconstitutional a Sadat decree issued in the
absence of parliament. Judges expanded the scope of press freedom
by dismissing libel suits of government ministers against the
opposition press and widened the scope of labor rights by
dismissing charges against strikers. But the regime saw fit to
ignore a Supreme Constitutional Court ruling that overturned the
distribution of certain seats in parliament to the disadvantage of
the ruling party. The Ministry of Interior continued to exercise
sweeping powers of arrest and detention of dissidents and
frequently ignored court decisions
(see The Judicial System
, ch.
5).
Data as of December 1990
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