Who Enforces Egypt’s Laws?
On May 1, Egyptian Ministry of Interior (MOI) personnel stormed the headquarters of the country’s Syndicate of Journalists and arrested two reporters in an unprecedented move. A sense of anger prevailed among journalists as the union’s general assembly called for the resignation of Minister of Interior Magdy Abdel Ghaffar. While these demands are understandable on their face, given that the minister oversees the police, in fact the decision to raid the press syndicate generally would have been made by the prosecutor-general. This raises the question of whether the minister of interior is truly the appropriate figure at whom to direct the anger caused by this case.
Dynamics between the Ministry of Justice, the judiciary, the public prosecution, and the Ministry of Interior—the various components of Egypt’s justice system—are intertwined and interrelated. It is hard for lawyers, let alone the average person, to have a clear understanding of these components’ respective mandates. At first glance, they seem to be separate entities that cooperate in the administration of justice. Upon closer analysis, however, there is a degree of interrelatedness—one which may explain the anger of the journalists toward the interior minister rather than the prosecutor-general. It thus follows that an analysis of the interconnected nature of the relationship between the Ministry of Interior and the remaining elements of the judicial system is necessary to answer questions on the ability of the Egyptian judiciary to deliver justice.
Law enforcement officers, commonly known as investigating officers, play a significant role in the justice system. They control the trajectory of most cases because they are authorized to gather information and evidence, and to arrest and search people. . Because the officers determine the initial theory of the case through this preliminary yet determinative work, they end up determining how it proceeds.
Per Article 22 of the Criminal Procedure Code, law enforcement officers report to the prosecutor-general. Despite the influential role that these officers may play in trial proceedings and outcomes, neither the prosecutor-general nor the judiciary has any say in the hiring, selection, and testing of the officers. Rather, they are MOI appointees and the MOI is responsible for their discipline, transfer, promotion, and termination. Even in cases when such officers commit egregious violations, the prosecutor-general has a limited advisory role. For this reason, there have been numerous cases where officers have criminal convictions, but the MOI insists on keeping them as active members of the justice system.
Many judges have long called for the creation of a so-called judicial police—operating under the judiciary—to enforce judicial rulings and judgments and to guard the courts Until a decision is made in this regard, the oversight of investigating officers should be placed jointly under the judiciary and MOI, thus ensuring that the prosecution actually has authority over the officers who end up determining the initial theory of the case.
The Minister of Justice
The question of whether the minister of justice is a member of the executive or judicial branch in Egypt is a question that no one been able to produce a decisive response to. The minister is a member of the executive branch who reports to the prime minister and the president. Should he fail to carry out tasks or policy assigned by either official, he is prone to dismissal. Yet because of the vital role that the minister has in managing the judicial system, Egyptian judges adamantly believe that he must be selected from the judiciary and even more specifically, from the common court system. Before assuming the position of justice minister, Ahmed al-Zend, acting as president of the Judges Club, launched a campaign to amend the Judiciary Law in order to limit the authority of the Ministry of Justice, particularly in the realm of judicial inspection. However as soon as he became minister, Zend did not work to implement any of his previous demands, indicative of the great degree of power that he recognized was now in his reach.
The power of the minister of justice is not absolute. When Zend issued Decree No. 189 of 2016 ordering a third retrial of former President Hosni Mubarak before the Court of Cassation at the Police Academy, the Court of Cassation rejected the decision to hold the trial outside of its premises, declaring a violation of its independence and authority. Despite the Court of Cassation’s degree of independence, the same cannot be said of criminal courts across Egypt who have given into the minister’s orders.
To balance the immense discretion currently granted to the minister of justice by the existing structure, power should be transferred to the Supreme Judicial Council, much as has been done with the Supreme Constitutional Court and the State Council.
The Relationship between the Prosecution and the Defense
The final question of whether there is a healthy and workable relationship between the prosecution and the defendant and his lawyers is one that is important to answer. Egyptian laws and policies lack the necessary guarantees and tools to ensure the best performance of attorneys. Most importantly, the law does not sufficiently protect the rights of defendants.
Egyptian police often claim that the lawyer-client relationship begins only after the defendant is referred to prosecution, enabling law enforcement officers to question defendants in the absence of their lawyers. Lawyers are often unable to speak to their clients privately prior to and during investigations.
Further, the public prosecution has vast authority over the investigation and prosecution processes while working with the law enforcement officers, as well as the power to procedurally hinder the work of attorneys. Except for orders of pretrial detention, all prosecution decisions cannot be appealed. The prosecution also enjoys authority over administrative actions and must grant explicit approval for all procedures, even including lawyers’ meetings with clients. The prosecution can deny lawyers the right to view case files and evidence, generally allowing lawyers only one meeting per month to meet with clients; at times, even requests for these rare meetings are denied. In cases of violation to the rights of lawyers and their clients, penalties against the prosecution or officers are rarely available. As the disequilibrium persists, the Prosecution continues to overstretch its authority, jeopardizing the rights of defendants and lawyers.
Ultimately, the players in Egypt’s judiciary are many and it is only by achieving a balance between the authorities and powers of these players through clearly-ascribed legislation and practices will justice finally begin to be served for all.
This article has been published via timep in 16th May 2016