Al-Ahram Weekly Online   31 August - 6 September 2006
Issue No. 810
Published in Cairo by AL-AHRAM established in 1875

Hisham El-Bastawisi

Hisham El-Bastawisi: Legal and legitimate

It is a tribute to Hisham El-Bastawisi's tenacity that he has a serious heart condition, but he considers himself a freedom fighter. Egypt is at a crossroads and the legal battleground is one of the most decisive arenas. "And, at this historical juncture, judges must be constantly aware of their role," the amiable and bespectacled judge stresses. "When we speak it's not always voce sotto", El-Bastawisi breaks into a smile revealing a measure of his political knowledge.
Interview by Gamal Nkrumah

Click to view caption
With Mekki following a victory for democracy

"The independence of the judiciary is paramount."

El-Bastawisi, living glory to the struggle for an independent judiciary, is optimistic about the future. Responding to his own and other judges' exasperation with the lack of transparency in the political sphere and especially when it comes to free and fair elections, he led the battle against what he considered fraudulent democratic process. He was determined to undertake the legal battle for the moral high ground in the country.

"Elections must be properly supervised and conducted transparently," El-Bastawisi explains. He is, after all, a ranking judge of tremendous consequence. His self is his work, and his work is to mete out justice.

Male-dominated and seemingly resistant to change, the judiciary in Egypt until very recently gave the impression that it was a deeply conservative institution. But there is a restlessness among the country's judges. Many are now insisting on independence. That is why the judiciary has become a battleground for politicians.

Today the judiciary has a brand new image as an institution where liberal values thrive -- thanks in large measure to the courage, determination and outspokenness of judges like El-Bastawisi. Indeed, it is no longer such an anomaly to speak of liberalism and the judiciary in the same breath.

The renewed assertiveness of the judiciary could scarcely have been imagined a decade ago when it was still in the throes of political tensions and the lack of political reform. Still, the judiciary is not a freak-show of rusty radicalism and mindless militancy.

The Judges Club, with a membership of some 8,000 judges, has now become a symbol of the struggle for democratic reform. El-Bastawisi, deputy of the chief justice of the Cessation Court, played a central part. He emerged as an outspoken critic of the manner in which the government conducted the electoral process. El-Bastawisi is one of the most vociferous pro-reform judges who spoke out against the fraud that marred last year's parliamentary polls and he deplored the intimidation of judges who do not toe the government line.

The Judges Club, the quasi-official professional association for members of the judiciary, refused to endorse parliamentary elections in November and December; 100 judges reported irregularities at polling stations. And, Mahmoud Mekki and El-Bastawisi are members of the Court of Cessation, Egypt's highest appellate court, came under intense pressure.

On 16 April Minister of Justice Mahmoud Abul-Leil ordered two judges, Mekki and El-Bastawisi, to appear before a disciplinary tribunal.

El-Bastawisi declared the disciplinary panel unconstitutional. He said that the defendants were not allowed to have lawyers as mandated by Article 67 of the Egyptian Constitution.

Many opposition parties and the Egyptian Movement for Change, Kifaya , supported El-Bastawisi. "Our case was not important," the self-effacing judge told Al-Ahram Weekly. "What is of vital importance is upholding the right of Egyptian people to have an independent judiciary, democracy and free elections".

This is not to say that there weren't fascinating and truly touching moments then. "The praise and appreciation was very motivating. People really cared," El-Bastawisi remembers. For a start, El-Bastawisi was far from a household name. For his struggle he has had huge acclaim. "When I was hospitalised people from all walks of life came to see me and offered kind words of encouragement," he says. "I was touched by some of the gestures of encouragement and support."

"I had no idea how that would be received". It turned out not so bad. Mostly they were kind and thoughtful, some of them were heartwarmingly demonstrative. University students, young girls sent flowers to the hospital. A mother came with her children and explained to them that I stood up for their rights as citizens. It was most touching."

El-Bastawisi believes that different political themes interact, setting up vibrations of principles and political moods. He strongly believes that his is a right cause. He also acknowledges that the battle is tough, but he has resolved to fight for democracy in Egypt.

El-Bastawisi is convinced that the independence of the judiciary is the hallmark of a viable democracy. This is why he spearheaded the fight for the independence of the judiciary. For this struggle follows years in which the judiciary in Egypt was a mere rubber-stamp, enforcing the executive's directives.

However, there was a precedent. El-Bastawisi recalled the 1967 putsch in which the judges were forced to join the then ruling one-party Arab Socialist Union (ASU).

But, he insists on broaching broader issues such as stare decisis -- the principle that courts should under normal circumstances leave past precedents undisturbed.

El-Bastawisi also voices a question that is increasingly heard among the country's judges: "Why cannot the judiciary be truly independent?"

El-Bastawisi is an avowed critic of the new Ministry of Justice law regulating the judiciary.

The struggle was being played out not only in courtrooms, but in the media. El-Bastawisi argues that public perceptions of fraud in the November and December parliamentary elections of last year were well-founded. These elections were a golden opportunity to dispel doubts about the fairness of the electoral process in Egypt today. However, he concludes that there was an attempt by the executive to co-opt the judiciary. "We cannot ignore the legal process," El-Bastawisi asserts. Indeed, he acknowledges that the march to democracy is a lengthy and laborious process.

He argues that the fraudulent elections broke international conventions. The best thing about the battle El-Bastawisi is fighting is that you never have to pitch a story to the minutea of details on the causes he takes up. His focus is always on the larger picture.

The biggest obstacle to democratic reform is the legal process. The judges have the right to denounce outright theft of elections. "The judiciary ought to be independent of the ruling National Democratic Party (NDP) and the state," El-Bastawisi insists. "We as independent-minded judges have the right to dispute the manner in which the NDP won more than 70 per cent of the seats in the parliamentary elections".

El-Bastawisi warns that vote tampering is wrong, and that it seriously compromises the democratic process in the country. According to him, the government has displayed a worrying propensity to interfere with the vote. Not only was there intimidation, thuggery and fraud, but there was the perpetual pretence that Egypt was a thriving democracy.

He strongly objected to the results of the three-round parliamentary elections that took place last year. There were reports detailing gross violations and irregularities of the electoral process.

All this made any decision by the electoral authorities much more difficult. In El-Bastawisi's view, a full recount offered the best way forward. He is a pillar of Egypt's legal establishment. However, he gives the impression of someone floating on the edges of the judiciary, but also of someone with the self-formed intelligence to bypass legal convention.

But not all judges agree with El-Bastawisi. So how does one account for such double standards? "Some judges have a vested interest in the system".

The parliamentary election results and the way in which the elections themselves were conducted ran the risk of damaging faith in the country's nascent democracy. The judges were considered an integral part of the electoral authorities. Egypt's judges have resumed the fight against fraudulent elections. El-Bastawisi has been in the forefront of the battle for free and fair elections under the supervision of an independent judiciary.

The Supreme Judicial Council (SJC), the 15-seat body that nominates, promotes and assigns judges in Egypt, is traditionally considered a bastion of conservatism. The executive directly appoints eight of the council's seats and appoints the attorney-general, the minister of state for justice and the head of the Court of Cessation.

The SJC promptly stripped four judges of their judicial immunity: El-Bastawisi, Mekki and his brother Ahmed, and Mahmoud El-Khodeiri -- president of the Alexandria Judges Club. The four judges were charged with "defaming the state". The tensions were overwhelming and he was hospitalised soon after, but he adamantly refused to legitimise the fraudulent election results.

The government determines the composition of the SJC, El-Bastawisi notes. He sees this as "unfair and unjust". He acknowledges that political reform and democratisation are an ongoing process. Oddly enough, El-Bastawisi concedes that Egyptian democracy has made impressive strides in recent years.

El-Bastawisi, however, decried the manner in which the government deliberately tried to intimidate judges. "Article 103 of the draft," he explains, "states that judges referred to disciplinary courts could have their salaries stopped until exonerated of any charges. That is a clear form of intimidation," he said.

"Still, I feel we've achieved that to some degree."

photo: Mohamed Wassim

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