One year after the January 25th 2011 revolution, there continues to be much discussion regarding the multitude of “unmet” demands and priorities of the revolution. Calling into question not only the basic achievements of the transition but also equally, and if not more importantly, whether the gains that have been and will be achieved, will be sustained and permanent, or eventually rolled back.
The illusion also exists that across a fragmented and disparate set of interest groups, people can coalesce and agree on the set of priorities or demands that will lead to the “achievement” of the revolution. That is impossible. In fact, in working under this illusion, the collective strength of the revolution is frittered away as each group focuses on its own set of priorities – making it simple to divide groups and demands - ultimately leading to no change, and thereby failure to achieve the goals of the revolution.
Therefore, we should all first focus on achieving the one demand that can garner the widest possible support among all the groups, that if realized, will have the most impact and will be the catalyst that will ensure, or at least materially increase, the chances that all other demands will be achieved.
This priority, this focal point of our energy and our unified front, must be to ensure the absolute independence of the Judiciary and the Investigative Authority (Public Prosecutors Office), and to guarantee that both have the ability to pursue, render and enforce judgments, unconstrained not only by influence of the Executive Branch, but that of any interested third party.
Why should this be the absolute priority? Because achieving this demand – ensuring that each complaint, regardless of the societal status of the complainant, will be adjudicated fairly, independently, expeditiously, and devoid of any outside influence - will not only have accomplished the goal of securing “equal justice for all” and consistent adherence to the “rule of law” (which are the only bases for building a sustainably institutionalized democracy), but it will establish the solid foundation upon which the achievement of all other demands can be based.
How? Let’s imagine this has been achieved. Martyrs and torture victims seeking justice, laborers being subjugated, election fraud, willfully biased media, getting our money back from Mubarak and his coterie of corrupt minions, investigating the gas deals with Israel, investigating the crimes committed in places like Maspero and Mohammed Mahmoud - each case or complaint would be fairly and independently pursued, and the courts would render just verdicts devoid of any political influence. The basis of all demands will then have the strength and legitimacy of being in strict compliance with the rule of law and justice, thus making it extremely difficult for any authority or power in the country to reject the implementation and enforcement of those demands.
Clearly we are not advocating that we become a litigious society that clogs the judicial system with frivolous lawsuits. However, if citizens see that true accountability and truly impartial justice are the norm – regardless of the case or the social status of the litigants - inevitably they will begin, over time, to self-regulate their behavior. A new culture is created: one of accountability, of an absence of impunity, of no one assuming they are above the law.
Therefore, only a few contentious cases need to be tried fairly, and the message will be broadcast across the nation that “your rights are, and always will be, protected.”
If you ensure that people know that their rights are always protected – both transgressor and victim behave very differently. The victim is confident that the rule of law will prevail. The transgressor will pause - and think - “not only will I be caught and fairly investigated and tried, but I will be punished.” Once that pause happens, the revolution has happened.
The demand for the absolute independence of the Investigative Authority and the Judiciary is one we can all agree on, and one that ultimately benefits us all. One way to “measure” this is to take the following into consideration:
However, if you reverse each of these and begin with justice, it provides the guarantee that the ability and tools to seek out and “fix” any wrong-doing, or to achieve equitable redress, are not subject to the arbitrary whims or discretion of anybody, regardless of position or power. The demand to “fix,” or the demand for redress – in fact all legitimate demands – become materially bolstered because they are based on the legitimacy of justice and will therefore be very difficult to resist or to refuse their enactment.
Even those who may ostensibly feel threatened by such true justice will find that such an equitable system will, in fact, ultimately work in their favour. Take for example the Ministry of Interior (MOI). While the arbitrary and subjective nature of justice strongly benefitted them in the past, the pendulum has now swung completely against them. As a new government is formed, there will be an extremely strong urge and significant pressure to embark on a brutal witch-hunt against the MOI (something we should all stand against). The only way the MOI can ensure that they are not the subject of politically motivated judgments and unfair sentences, is if the thousands of absolutely decent and good people at the MOI, who were not involved in the injustices committed by the former regime, support this demand too. It is their only protection against that same arbitrary and politically motivated justice that existed in the past now being wielded against them. This same logic applies to the vast majority of the other institutions of the state which will inevitably be the subject of special investigations and inquiries.
In order for this demand of impartial justice to be realized, two components of the justice system must be reformed and completely separated from the Executive Branch of government - the Investigative Authority (Public Prosecutors Office) and the Judiciary.
The Investigative Authority:
It has always been puzzling, and in fact seemed akin to asking the wolf to guard the hen house, how, over the past 12 months, we have seemed completely comfortable referring all of the injustices that have been uncovered to the existing Public Prosecutors office. All the while, we have been unrealistically hoping that somehow the same individuals that functioned as the vanguard of ensuring politically motivated judicial outcomes under the former regime, and indeed were appointed by the former regime, would suddenly do an about-face and become the strong and motivated advocates of uncovering and pursuing all the injustice committed by the deposed regime. Wishful Thinking and Hope Against Hope.
Therefore, the senior leadership, and only the senior leadership, of the Investigative Authority (IA) should immediately be replaced in its entirety. The appointment process of new Investigative Authority leaders should then be divided into three completely separate steps – Nomination, Confirmation, and Oversight – and each step has to be entrusted to a separate body. While the Executive Branch could function as the Nominating body, it absolutely must not have any role in either the Confirmation or the Oversight process. The latter two steps must be carried out by the Parliament and the Supreme Judiciary Council (SJC); ideally with the Parliament, through its judiciary committee, playing the Confirmation role and the SJC playing the Oversight role. Again, these changes should only go as deep as the senior leadership of the IA, as countless studies and practical experience have demonstrated that to effect change in any organization, in the vast majority of cases it is sufficient to replace the senior leadership, and then the rest of the organization quickly adapts to and adopts the new culture, dictates, directives, etc. introduced by the new leadership.
The “Judges Club” (Nadee el Quda2) has issued a set of recommendations that, if followed, will go a long way to achieving the independence of the judiciary. These steps must be implemented immediately, and the highlights are as follows:
Effectively, the MOJ should have no influence on the lives or careers of judges and should have no involvement in any aspect of cases and jurisprudence. His or her role should be focused on representing and reflecting the needs and concerns of the judiciary and the judicial bureaucracy in front of Parliament.
The SJC should have the primary responsibility for the career progression of judges, with a limited oversight function to be exercised by the Parliament to ensure there is accountability – but no influence – on SJC.
No one should have any involvement in the allocation of cases among judges, it should be a non-discretionary process. And finally, the SCJ should be the party responsible for the allocation of the “temporary assignments.”
Of course there are far more details to the proposed recommendations. However, these summarize the absolute basic steps that must be implemented immediately in order to ensure the effectiveness, integrity, and independence of the Judicial Branch of government.
Certainly these recommendations are not a panacea to solve all the complex issues we are currently facing, and even if the existing laws of the country are imperfect, the just, independent, and impartial application of those laws will significantly enhance and strengthen the ability to improve the laws of the land.
So yes, let us debate and discuss the priorities of a new Egypt. And let us form a national consensus about the society we want to build; but let us do so with the first and most fundamental step being to deliver to every citizen, regardless of status, gender, background, religion, creed, or race, the absolute guarantee and assurance that they have the complete and unconditional protection of their rights, and regardless of who the transgressor may be, they will be able to seek and achieve true justice. Justice is the only and final guarantor that we are never again in a situation where the battles fought and the achievements made to construct an equitable and fair country, where each and every one of us can live in dignity and with self-respect, are subject to the arbitrary whim of any individual or institution and will be sustained far into the future.
Without enshrined justice, we will always be at risk of losing any gains made along our journey to establishing the new Egypt. The very foundation of any society is justice – this is not simply a demand of the January 25th, 2011 revolution, this needs to be the first demand of new Egypt.