Al-Ahram Weekly Online   18 - 24 October 2012
Issue No. 1119
Published in Cairo by AL-AHRAM established in 1875

The prosecutor-general affair

The fault is not so much with the prosecutor, concludes Amr Al-Shobaki

The curtain has closed on the affair of the prosecutor-general who defied a presidential decree to usher him out of his post by appointing him as ambassador to the Vatican. However, the incident remains worthy of consideration. If, to some, it appeared as though this were a battle between a revolutionary demand to oust a "remnant" of the old regime and that official's determination to stay put, in fact it was nothing of the sort.

Without a doubt a broad segment of Egyptians share a justifiable desire to see substantial change at the top. With a new system of government it is only natural to see many new faces, not just in the executive but also in the judiciary. This is what takes place in the course of the peaceful rotation of authority in democratic nations. When a new ruling party takes over, it changes most, if not all, the occupants of the key posts in the administration. If this is the case in normal circumstance, surely it should apply even more so following a popular revolution which, virtually by definition, is expected to sweep out the old, and not just the figureheads of the former regime but also the ways of operation in those institutions that produced and sustained the old leaderships.

However, the crucial factor in both cases is that change must occur through the legal machinery that governs society and the political system, regardless of whether the machinery is old or new.

If some new blood has to be injected into the Egyptian judiciary, by changing the prosecutor-general, for example, this should be done in accordance with the appropriate legal channels, not in accordance with the whims of a president, the "street" or the Muslim Brotherhood.

The president's decision to dismiss the prosecutor-general had no legal foundation. This is all the more so in view of the fact that Morsi did not come to power by means of a revolutionary coup, be it red or green in hue, or by a revolution that aimed to dismantle all the institutions of the state, in the Bolshevik manner. Rather, Morsi came to power through an established electoral process and with considerable credit due to the judges who, in spite of the insults hurled at them, displayed the highest levels of probity in ensuring the integrity of the polls.

True, the previous century brought three major experiences -- the Russian, Chinese and Iranian revolutions -- that, like the French revolution of the 18th century, ushered in revolutionary orders that ruled by the thumb of revolutionary legitimacy. None of them brought their people democracy. They brought an assortment of "revolutionary" laws and courts that began by executing and imprisoning the men of the old regime and that soon turned their sights on erstwhile comrades and fellow fighters in the revolutionary field. It is not difficult to imagine that if the Muslim Brothers, today, ruled by revolutionary legitimacy, as some of the secularist coalitions had demanded, they would have readily justified actions considerably more violent than the assaults against the demonstrators in Tahrir last Friday on the grounds that such actions were necessary to protect the revolution from "aggression," "saboteurs," "counter-revolutionary forces," and other such beasts from the lexicon of revolutionary legitimacy.

The problem with revolutionary legitimacy is that it lays the foundations of a governing system based on extraordinary courts and measures that can be brought to bear to dismiss a prosecutor-general through extralegal means. With revolutionary legitimacy, the "revolution" is above the law, above the state and, sometimes, above the people. It is a very dangerous instrument, because it flings open the door to a policy of systematic vengeance and retribution that may start by targeting the "remnants" of the old regime but inevitably turns its wrath against revolutionary fellow-travellers who may rival a dominant group's claim to revolutionary legitimacy. As mentioned above, no experience in the establishment of revolutionary legitimacy created a democratic order, but they have created bloodbaths.

Nevertheless, it looks like some are determined to reinvent the wheel, starting from where Afghanistan and Sudan began their failed experiences beneath the guise of a religious version of revolutionary legitimacy, while others are more inclined to begin in the mode of Stalin, Saddam, Qaddafi and Al-Assad, who built up their tyrannies on the pretext of other versions of revolutionary legitimacy.

Morsi's stab at removing the prosecutor-general on the grounds that it was a revolutionary demand marks a dangerous precedent for Egypt and one that is all the more tragic in view of the fact that the president came to power through the electoral process and in accordance with the rule of law. It is not that the idea of changing the public prosecutor-general is necessarily wrong. But if such a change is to occur, it should be done in accordance with a new law for the judiciary, approved by the judiciary and the parliament and allowing for such a change in accordance with clearly defined rules, procedures and legal grounds that are unrelated to the whims of the executive authority.

At no point did Egypt need revolutionary trials. On the contrary, it needed just and comprehensive system of transitional justice. Such a system begins with the creation of a national commission of independent judges and investigators whose task is to gather and corroborate evidence needed to bring anyone, from the old regime or the new, to justice for having committed crimes against the people. Transitional justice is founded on the principles of fairness and national reconciliation. South Africa established a brilliant model and similar successful experiences were conducted in Morocco and many Eastern European and South American countries. There is extensive literature on the subject, describing its various rules, procedures and mechanism, but unfortunately we have not taken advantage of it.

I agree that the Egyptian judiciary needs reform. There should be new criteria for the selection of its members and considerable effort is needed to develop its professional capacities, to bolster its autonomy and to enhance its ability to deliver justice to the greatest possible extent. However, there is no denying that our judiciary is an honourable one with a long and venerable legacy.

This makes it all the more regrettable that some should unleash this assault against Egyptian judges for having issued rulings that went against the wishes of, albeit, a considerable segment of the Egyptian public opinion. The ruling issued by the court on the so-called "Battle of the camel" case came as a great shock to many, as did similar previous rulings that acquitted defendants charged with the murder of revolutionaries. Even so, people should bear in mind that a judge who rules "against the tide" merits our full respect for his independence and integrity. There is no Hosni Mubarak or SCAF that we could point to and say that it pressured the judge into issuing these rulings. Moreover, it should have diminished our respect for him if, instead, he passed a harsh sentence against the accused merely to cater to the mob, or to flatter the president who called for justice for the martyrs on several occasions, or to curry favour with the ruling party and political arm of the Muslim Brotherhood which also cried for punishment while seizing every available opportunity to hurl vicious attacks against judiciary.

A judge who rules against the prevailing mood of public opinion and against the desires of the ruling party is a judge who rules in accordance with the dictates of his professional conscious, rather than the dictates of certain political whims or inclinations. Much of the evidence that was submitted to the courts in many of the recent cases after the revolution was deficient or false. No respectable and impartial judge can issue a verdict except on the basis of evidence that has been brought before him and that was substantiated.

Nor should the public forget the credit due to our judiciary for having acquitted or freed Muslim Brotherhood members, themselves, in cases concocted against them by the former regime, forcing Mubarak to hand the defendants over to military tribunals which issued the summary judgements he wanted, as occurred with Khairat Al-Shater and his companions in 2007.

This civil judiciary is also the same judiciary that supervised the legislative elections in 2005. Thanks to the vigilance of those judges who supervised the polls, those were the first halfway fair elections held under the old regime. Some of these judges were rewarded for their efforts by the insults and thugs in the pay of that regime and Justices Hisham Al-Bastawisi and Ahmed Mekki were subjected to a judicial investigation for having publicly protested the flagrant electoral fraud the regime committed in the third phase of those elections. In 2005, the Muslim Brotherhood candidates won 88 seats in parliament and other opposition candidates won 30 more. Thanks to judicial supervision, it was the largest parliamentary opposition bloc ever under the old order.

Without a doubt, the judiciary's assertion of its autonomy in the 2005 elections prompted Mubarak to cancel judicial supervision of the polls in 2010. The result was the worst electoral farce in Egypt's contemporary history which, in turn, became one of the causes of the 25 January Revolution. Little wonder that after the revolution there was a universal consensus that the sole guarantee for free and fair parliamentary and presidential elections was complete judicial supervision of the polls.

We should acknowledge that the judiciary in Egypt is semi-autonomous and that it needs reform. But we must simultaneously realise that the road to reform of this and other institutions of the state is a long and difficult one and that it should not be influenced by settling scores, trading in the currency of revolutionary legitimacy, or narrow political interests.

In the same spirit, there is nothing wrong with the idea of dismissing the prosecutor-general. What counts is that any such dismissal must occur in accordance with the law and under the auspices of the judicial authority, or in accordance with a new law that gives parliament and the judiciary the right to conduct hearings against the prosecutor-general, again in accordance with established rules and procedures. But since such a law has yet to be passed and since under the current law the president does not have the right to dismiss the prosecutor-general, it is impossible to accept any executive decree to this effect whatever the justifications.

The writer is an expert at Al-Ahram Centre for Political and Strategic Studies and a former MP.

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