Al-Ahram Newspaper held an interview with Prof. Dr. Gaber Nassar, President of Cairo University, by Ms. Karima Abdul-Ghany, on 8/7/2015, in the framework of a file issued by Al-Ahram concerning the national role of the Egyptian judiciary.
The interview is as the following:
What is the status occupied by the Egyptian Judiciary, and from your point of view does it have a special historical quality other judiciary institutions?
The privacy of the Egyptian judiciary lies in having inveterate historical roots. It is worth noting that the provisions of Egyptian Judiciary principles are taught in the largest legal academies in the world. The provisions of appellate court and administrative judiciary were translated into English, French and Deutsch and taught until now at those academies. In Egypt, there is a constitutional court considered as the third court at the global level among more than 120 constitutional courts. Constitutionality is distinguished through independence and technical standards in sentencing, as well as proficiency, professionalism and its law.
What are the most important historical stages in the history of the Egyptian judiciary, its emergence and development?
The concept of modern judiciary in Egypt emerged with the establishment of the modern state at Mohamed Ali era. The judiciary authority represented an essential and important part in the Egyptian state; as it is a national institution in the first place. At all time, it proved its patriotism and ability to defend the capabilities of our homeland as well as rights and liberties. It is also an institution historically known for its competence and independence. It is most characterized with the human element represented in the Egyptian judge whose faith is formed from the love of justice, homeland and defending it. Thus, the Egyptian judiciary had always had a main role in guarding the homeland and establishing its basic renaissance. When the English occupation occurred in Egypt in 1882, and the foreign occupation started a trial of subjugating the Egyptian institutions to serving the occupier, the Egyptian judiciary adopted a firm situation against penetration.
Did the occupation yield to the firm situation of the Egyptian judiciary or it found other tricks to penetrate it?
The occupation continued for decades trying to penetrate the judiciary and subjugating it to the manipulation of the Egyptian people and standing against their interests. For achieving that, the occupier used many procedures, however, it failed, the matter that coerced the English occupation to the trick of establishing another twofold judiciary course, so called “mixed judiciary”. Strangely enough, at the time of occupation, Egypt was famous of a legal renaissance was not known for many countries including European countries. The sons of Egypt excelled in law making and legal regulations. Legal and judiciary culture was always used as anti-occupation culture. While the occupation made endeavors to expand its legal Anglo-Saxon culture according to the legal theory famous at Britain, which it succeeded to impose on many of the countries it occupied, foremost, the United States of America which is still going according to this theory so far, no one can deny the cultural influences of occupation. Law is a very important domineering part of the cultural component of each nation and people. The countries occupied by Britain whether in the two Americas or in Africa and Asia were always controlled by the English character, this also happened with France at the North of Africa.
How did the judiciary institution manage to resist occupation and prevent the invasion of the English culture?
Resistance was adopted by all of the Egyptian institutions, foremost, the judiciary and legal institution. Its resistance was impressive, although that part did not receive its right from history to find out how the Egyptians used law and how the judiciary institution fortified itself with its culture and patriotism so as not to become an easy prey for the colonizer. While the colonizer imposed its law on the state, the legal Egyptian culture turned to the Latin legal culture which follows the French school. Judiciary represents deep legal studies because judge is the one who learn law continuing to read it and transforming it from legal texts into provisions then into culture then life. Thus, judiciary institution was an essential part of the law system which resisted the occupier who could not manage to subject the independent Egyptian courts to its desire, and at the same time was not ready to let it take legal action against without its interference, the matter which made it resort to a parallel path and establish the mixed court and enter a foreign element into the court to facilitate its desires. However, the strange thing is that these mixed courts, according to its thirty years old history, recently started to be influenced with the Egyptian courts. Therefore, the Egyptian judiciary remained a protector of the national sovereignty and the existence of the Egyptian state as it is one of the main authorities. Therefore, it was and still a target for all those who set their sights on the Egyptian nation and state and want it fragmented.
How do you interpret the secret of this constant targeting of judiciary specifically throughout history?
This is because they realize that being the Egyptian judiciary authority united increases the state strength and prestige, therefore, they are targeting it in an attempt to break up the state. There is a scene passed the minds of many unnoticed, whereas it is difficult to men of law like us to pass without examination. After January 25 in Sinai, there were extremist groups flying their Daesh flags and showing off their strength in queues display to show the extent of their control over North Sinai. This concurred with seeking the establishment of martial courts in Sinai. Worse still, in the year of MB rule, there were talks about martial councils to resolve the disputes in Sinai and Upper Egypt for which they prepared a law project which was in everybody mouth at Shura Council and Hisham Qandil government, but thanks to Allah it was aborted. If a state is careless about a part of its judiciary authorities or sovereignty through allowing a group of people to settle disputes customarily, it is parallely carless about the unity and solidarity of its sovereignty. This was a very serious problem and MB tirelessly thought, during their rule, to fragment the Egyptian state through atomizing its authorities and most importantly the judiciary authority.
How was the project of this law aborted although they owned the legislative authority that year?
The terrorists and extremists problem is that they think they understand the structure of this state, but Egypt is an ancient state that has a constant fixed structure. Therefore, all the boyish extremist moves which they made to split this state will never succeed because they did not realize the nature of the Egyptian people. They deludedly believed that their manipulation of religion, collection of zakat and charities of the Egyptians and reemploying political issues would enable them to engulf the Egyptian state, which is impossible to happen because Egypt is not up for grabs. If we look at all the corners of the Arab world, we will not find except Egypt with its institutions, army and people who has the ability to withstand hardships. In order to know the abilities of this people, we should first study the Egyptian history well. Egypt is the rock against which all the thoughts of breaking up the Arab World were shattered. Egypt managed to face up and shatter the Tartar army "which ran over the Arab Orient and East Asia" on its threshold at a time when it had neither army nor government nor governor to run its affairs, not to mention us now when we own a strong patriotic united army.
What is the role which judiciary can play in establishing modern state?
Modern patriotic state is based on two main axes. One is based on aspects of sovereignty in establishing the states which are represented in the state monopoly of military force to apply justice among citizens through judiciary authority, Armed Forces and police. In case of breaking those aspects, the state is not existent. Neither political parties nor individual institutions can either generate a state or keep it. The best evidence of this is the scenes we follow up in Libya, Iraq and Syria where there is neither judiciary, nor army, nor police. Therefore, the state prestige and structure fell for neither being able to establish its judiciary, nor army to protect it from outside, nor police to protect it from inside, which are the aspects of the existence of sovereignty of state. The collapse of any of these parts leads to the breakdown of state. This is the secret of the hostility of MB and extremist groups to the main axes of state, aiming at smashing the prestige, power and authority of army and judiciary which are the main two pillars of state, being responsible for protecting and defensing all the institutions of the state and its people.
What is the role played by judiciary in maintaining general and individual liberties of the state?
We should remember the sentences of the Egyptian judiciary in facing election fraud and the decrees that were issued to confiscate rights and liberties. Council of State has also played a serious role in this issue, as well as the sentences of The Supreme Constitutional Court which is more protective of rights and liberties provisions than The Supreme Constitutional Court of The United States. This is demonstrated by doctorate studies at Faculty of Law through which the sentences of The Supreme Constitutional Court were analyzed in comparison to the judiciary of constitutional courts in different countries. The role of the Egyptian judiciary in protecting rights and liberties is lauded because even though we are in exceptional condition and are exposed to exceptional crimes, all the trials are conducted in accordance with law and normal procedures.
Was any executive authority or governor able to interfere in the affairs of the Egyptian Judiciary or influence its independence throughout its history?
Attempts of penetrating judiciary authority ended in failure because of the power of the Egyptian judiciary which competently fought a pitched battle for its independence. Council of State emerged in 1946 proving at the first moment a very great dignity in protecting rights and liberties and adjusting the framework of authority which needs a powerful independent judiciary which is not only a pillar of the state but also a determiner of the state right track. This is because the last solution for a citizen is to recourse to the courts, and that recourse should be immune to injustice. The Egyptian judiciary became a whole of two wings, one is normal and the other is administrative, as well as the military judiciary of military trials. The three dimensional judiciary became a representative of the judiciary power which stood up with full force against any attempt to intervene in its affairs or undermine its independence. For example, after the 23rd of July Revolution, 1952, the Leader Gamal Abdul-Nasser wanted to change the Egyptian reality as he held the presidency of the state while it was suffering from many social problems which he wanted to change. However, he did not realize that he must change the framework of the law and the judiciary, the matter which resulted in a collision between him and the judiciary institution. Abdul-Nasser could not subdue the judiciary or twist it in spite of his popularity and sweeping social reforms which were popularly supported. The judiciary remained a firm resistant for the benefit of the Egyptian state rejecting to be a branch in the government, as it is a part of the state not a part of the political system. Judiciary is an independent authority, unlike the executive and legislative authorities which are intertwined, whereas judiciary is distinct from them. Therefore, Abdul-Nasser started to change his mind in order to come out of this situation.
So you see that the Egyptian judiciary was not subject to any governor throughout its history and since its emergence?!
The judiciary authority was never subject to any one, and this can be deduced from reading the history of ancient and modern judiciary. We mentioned earlier its successful confrontations with the occupation and Abdul-Nasser who was followed by Al-Sadat. Al-Sadat was intelligent and he learned from Abdul-Nasser problem as he was convinced that being in clash with judiciary authority can never be successful. Therefore, he established parallel courts to refer some issues to it. He expanded special courts, such as Socialist Prosecutor Courts, the courts affiliated to it, and Emergency Supreme State Security Court (ESSSC). All of this was out of his desire to avoid collision with the judiciary institution, and since this time the Egyptian judiciary remained grand in its provisions. Mubarak followed Al-Sadat footsteps and excluded the concept of being in clash with the judiciary authority because it is not feasible. He worked according to the strategy of the existence of exceptional judiciary instead of expanding reference to military court to face exceptional cases according to considerations that may arise in many countries, as The United States itself did not confront terrorism with the American law and established Guantanamo jail where it detained the convicted treating them inhumanely. After Mubarak departure, we comes to the year of MB rule which needs critical consideration to know where we stand, whom we fight and who support them. We should also know that the concept of MB interest in elections and devolution of power via ballot boxes is a lie, and that what happens in Egypt now would have happened if Morsy was not announced a president of the state as their leaders have threatened to do so before the announcement of the result of the presidential election. MB and those who support them have anticipated announcing that Morsy won the elections. At the beginning of the year of their rule, MB started with a strategy that many people did not pay attention to until now and which we need to examine. When MB took up the reins of government, they were not occupied with the method of the Egyptian state management, but were thinking instead of rearranging the Egyptian state and preparing it for a rule which would continue until the Day of Resurrection. This thought was based on the containment of centers of power including judiciary and army or their penetration. Therefore, it was obvious since June until November that their task was focused on the concept of containment and they failed, then they tried to penetrate the army and its systems as well as the judiciary and they also failed. Another stage started to occur in parallel; which is establishing a parallel judiciary inside the same institution so as to be exploded from within as well as a parallel army to face the Egyptian one. There are two incidents which should be recalled and remembered by the Egyptian people. The first incident is when Mahdy Akef permit was issued by MB Guidance Office saying that the retirement age of judges would be lowered for judges to bring out 4500 elderly judges being more than the third of judges, as a first stage to facilitate the entry of equal number of MB. There was in parallel a trial of penetrating judges appointments and changing their places. The actions taken by El-Gheriany, in the year in which he took over the Supreme Judicial Council, need to be re-examined and reviewed thoroughly to find out the recycling process which he made in the judiciary institution; the entry of some names into certain courts and excluding others being the chairman of the Supreme Judicial Council. The second incident which should be recalled and remembered by the Egyptian people is Morsy 6th of October celebration which was noticeably absurd. Members of terrorist groups, whom we fight now in Sinai, sat in the first rows. The scene which was directed by Morsy on October 6, 2013, conveyed the message that he is in no need for the army and that his power is enough and this was merely considered launching a power in parallel to the Egyptian army.
How do you perceive the United States and some Western countries stance towards terrorism in Egypt, and what is your attitude towards their criticism of the judiciary provisions against terrorists?
The main problem is that we are subject to double-dealing and this is maintained by our failure to defend our sound position. When America fought terrorism and decided to counteract terrorist attacks that occur far from it at other countries so as to fortify its borders and stand up to terrorism at Guantanamo jail which no term in the language can describe. It is simply a place that symbolizes being The United States stripped of all the principles it advocates, at the time when it denies Egypt the right to fight terrorism with laws and normal courts although it is subject to guarantees and procedures which are very difficult in suing and it takes years to achieve them which does not suit the terrorists potentials in using weapons. We do not know on what basis The United States criticizes the judgments handed down by the Egyptian judiciary at a time when the judgments at The United States are rendered whether of guilt or innocence by a group of unprofessional jurors who have no connection with law or judiciary. The whole trial is based on placing facts of the case before those jurors who are decision makers about the accused. What is strange is that The United States succeeds in marketing its judiciary as a fair one, whereas Egypt cannot market its judiciary with all its mechanisms and independence as a fair one. We would like to say to those who echoed the argument that the judiciary is politicized that this statement is a sheer lie and slander, and the evidence is what happens in trials since if the judge rules in accordance with power, so why should there be a need to continue in considering the case for many years and waiting for the attorneys answers to the courts in a session after another amid a tangled web of complex procedures. To reach true justice, it is necessary to issue the procedural law of terrorism referred to by the Constitution to maintain speed with justice. We should have the courage to face terrorism which targets all institutions of the state. Our problem with exceptional terrorist crimes is not in penalty but in the ineffective procedural system.
Do you have a view of how to market our judiciary with its real image and refute false claims about it?
Those who attack the Egyptian judiciary can be lacking in awareness of the history of the Egyptian judiciary and need to realize how the system work. Could those imagine that The Court of Cassation is sentencing now with judicial principles approved since more than a hundred years? Therefore, when it comes to sentence MB or others it is done according to principles settled since more than 120 years. Those who see sentences will make sure that it work according to judicial principles. I challenge anyone who says that the Court of Cassation passed a sentence at odds with the principles applied since fifty years, unless all members of the Court of Cassation held a meeting to deliberately change a principle. If this mechanism is neglected and a sentence is passed at odds with those principles, only then we can say it is a politicized judiciary. To refute false claims about the Egyptian judiciary, I call on the intellectuals to form a committee to defend the independence of the judiciary abroad through which the sentences passed by Assizes Courts will be translated into several languages in order for the Western media to realize facts on the Egyptian judiciary as well as the conditions that the state passes through. We need a mechanism to sensitize the West about the mechanisms of litigation in Egypt.
The term of cleansing the judiciary was echoed after January 25 Revolution. So what is your impression? And do you see that the judiciary institution has gravely been affected by corruption like other state institutions?
First, it must be obvious that the judicial body is highly strong and sensitive, and it is the largest institution that cleanses itself. MB falsely talked about cleansing the judiciary which is untrue because the Egyptian judiciary institution has a very effective system to face faults transparently so as to confront the corrupt, deviants and those who belong to extremist groups through judiciary. Every society has a rate of corruption and the problem is not in the existence of this rate but in the way of facing it. As I previously mentioned, the judiciary institution has reasons for confrontation which are not existent in any other system in Egypt. The judges who get out of the judiciary power as a result of their political biases are excluded in the framework of this system. Therefore, those who raised the slogan of cleansing the judiciary are either ignorant about the judiciary institution or tendentious, wanting to destroy, penetrate and replace its members with battalions of MB which was and still is an inaccessible illusion.
May Allah protect the Egyptian judiciary and Egypt.
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