Counselor Zakariya Abdul Aziz sent, the Judges" Club president. Sent on Saturday a research memo, prepared by counselor Ahmed Miki, the deputy chief justice of the Court of Cassation and chairman of the committee for activating decisions of the Club"s General, around the bill of amending the military law number 25 of the year 1966, to Dr. Ahmed Fathi Sorour, the People"s Assembly speaker .
The following is the text of the memo:
Starting to be aware of the concept of a modern country specifically in mid 19th Century, the Egyptians realized that the judiciary must be unified to provide a real protection for the rights and freedoms; so, Nobar Basha started to exert efforts to cancel multiple judiciaries which were numerous due to domestic grounds or because of foreign franchises; this is because if is permissible to have two presidents, two prime ministers or two parliaments in the same country, it is permissible to have two judiciaries; this is totally rejected for the following reasons :
1- It deprives the citizen of his right to appear before his competent judge, right prescribed by article 68 of the constitution or it may at least causes confusion and put citizens" rights at the stake.
2- It leads also to undermining the power of justice in front of citizens, because what is divided loses weight and size and can be controlled, something that contradicts with the principle of a balance between authorities which the regime claimed to have lodged the last constitutional amendments to keep.
3-Violating the principle of citizenship that the regime has gone too far in talking about it; this is because the core of this principle is that citizens are equal in front of law; creating multiple judiciaries leads necessarily to multiple criteria and standards. Every case is weighed according to whims of the judiciary to which it is referred, undermining equality before law.
Why Are Civilians Tried In Front of Military Justice?
President Gamal Abd An-Nasir made it clear when he was explaining the reasons of the so called "justice massacre" in 1969; he said in the first meeting of the general committee of "citizens for the sake of the battle" that the Revolutionary Command Council has taken a decision after it was established of not intervening in lawsuits and leaving the competent justice exercise its job without any influence; he said exactly according to the session report dated 11-4-1970:" What we have approved is that if there is a political case, we make a political case and we make judges of ourselves, and get the judiciary away from it and do not intervene in justice"; and he established the People"s Court, and members of the Revolutionary Command Council were the judges.
"This made people grasp that this case is political and we want to introduce our view in it and get the judiciary away from it and we bear the responsibility"; this was pointed out by the explanatory memo of the military law no. 25 of the year 1966 stating that:" the Armed Forces have become a part of the country; they are affected by what affects the country, they have even become responsible for the state security and protection in all fields".
What concerns the government is its disagreement with domestic political opponents, even if their charge is only money laundry, and because the competent justice released them, and their cases are the only ones referred to the military justice, excluding espionage cases and the case of drowning a ferry that carries aboard it thousands in front of Egyptian coasts.
Core of Judicial Independence
When Egyptian national justice emerged in 1883, the judge had no guarantee, except one: that he isn"t under any presidential control; the work administration was carried out by the General Assembly of the court, and the rulings of the district sourts were issued after a deliberation that starts with the latest; Ismail Yousri pasha, the first chief justice of the Egyptian Court of Appeals, pointed out that this is consultation, the source of all virtues and on which is based uprightness of work from its beginning to its end; this was echoed by Sheikh Mohamed Abdou, a counselor in national courts, who said:" The fair governments have agreed that the rest of a judge is only provided by his colleagues".
This was also echoed by nowadays scholars, including Dr. Ahmed Fathi Sorour, who confirms that the idea of administrative subordination eradicates the independence of any judge because subordination requires defeat, submission and lack of will, and mocks at the claim that the prosecutor may plead on any thing other than the directions the attorney general according to the famous proverb:" if the pen is bound, the tongue is a heat".
And he says that this is just illusion and deception; the freedom of speech can"t exceed functional restriction " see Al-Wasat in code of criminal procedure Judges" Club"s edition-year 1980; he says in the same book page 869:" there shall be no administrative subordination whatsoever among the judges regardless of their degrees; all of them are independent judges who shan"t follow each other; the administrative submission of the judicial societies shall be in courts or their higher councils, as prescribed by law ".
The first article of the bill states that the military justice has become an independent justice authority affiliated to the Ministry of Defense; how are independence and subordination combined; the second and third articles state that this authority as a chief; as we are in a military system, a number of members must be both officers and judges; then this bill claims that these employees are independent and are under the control of law only; the bill concludes its texts with stating that the Defense Minister will issue the decisions necessary for applying rulings this law.
This alleged judiciary is only a body which is affiliated to the Defense Minister who chooses its chief and members and promote and reward them, forms the court districts, and specifies its powers; consequently, the bill proves only that the military justice but is a part and parcel of the Defense Ministry, and is concerned with carrying out employer"s powers over his employees; this bill should be concerned only with trying soldiers alone, for disciplinary crimes alone and rules disciplinary sanctions within framework of the military atmosphere; to say that the military justice has become independent like the competent civilian justice is just a playing of words like talking about a fair tyrant, an honorable thief, organized chaos, and merciful cruelty.
Armed Forces Mission Is To Be A Steel Shield
The law no. 25 of the year 1966 was issued at a time of sedition; the military criminal investigations were storming into Egyptian villages, liquidating the so called feudalism, agents of backwardness, enemies of the revolution and getting involved in domestic issues, and got concerned with them till 1967 defeat took place making them be aware of their actual job.
After huge efforts, October War restored to the Egyptian military its pride; when the military got involved in performing its real duty, it refused to be an instrument to rig elections, after Armed Forces booths were the favorite means for rigging.
When January the incidents of January 1977 took place, and the security forces failed in restoring order and the Armed Forces were forced to take to the streets, they declared that their task is restricted to guarding government and civil facilities, and stopped short of confronting demonstrators because the military isn"t related to politics or political rows.
These are the manners of a knight who raises his sword to defend his fellow compatriots; he isn"t a jailer who is raising a whip or bully with a knife to shed the blood of his fellow citizens; Egypt is badly in need for this steel shield, mentioned in the explanatory memo of the law, to protect the Arab security and the Arab hope from imminent dangers across the borders.
Back to Dr. Fathi Sorour
The Egyptian justice had, when it was first founded, any guarantees except what we mentioned: lacking any administrative subordination among its members. The judges started, through their deliberations in courts societies, dictating to the government the guarantees that they see as necessary for their job and the government was responding to the judges" demands; this was clearly mentioned in the explanatory memo of the first law for the independence of judges no 66 of the year 1943; it stated that:" the best guarantees for the judge are the ones emerging from his inner self deep; the best fortress from which you should seek protection is conscience; therefore, before you searches for the judge"s guarantees, search for the state order; this order will not make a judge out of him unless he contains inside him the pride, dignity and anger of the judge for his power, independence and personal immunity; this psychological infallibility is the basis of the judicial independence; this basis isn"t created by texts or laws; it is a weapon in the hands of the honest and strong to protect his independence and his job".
Experience proved that the independence of the Egyptian judiciary increases and decreases according to the well being of the judges community; if this community weakened, texts will be useless for them; also, I do not think that the army systems allow the emergence of bodies which are equivalent to the Judges" Club which is a condition from the judicial independence according to international covenants.
I want only to quote what Dr. Fathi Sorour wrote is in his previous book page 35; he says:" History has proved that whenever rulers tyrannized and raised weapon against right and freedom, the courts become one of their machines to kill and destroy; the courts have a judicial force which can be used in justice and injustice as well; the can be used by fair government for reaching truth and justice, and can be used by unfair government to take revenge and injustice and fight truth and reform; history narrated to us that courtrooms were stages of atrocity and injustice after battlefields; while innocent blood was shed in the battlefield, innocent persons were tied in courts that executed, crucified, killed and threw these innocent persons behind bars".
Dr. Fathi Sorour, Finally
The bill included introducing a new article no 43 bis of establishing Supreme Military Court of Cassation to hear appeals against rulings issued the general law crimes; this appeals are under rules and measures related to appealing in the penal articles; the explanatory memo of the law states that:" Due to the dire need for unifying the legal principles of the military justice, to guarantee a true application and interpretation of law, there is a need for establishing the Supreme Military Court of Cassation to be a parallel to the Court of Cassation in its job. It is concerned with hearing the appeals filed against the rulings issued by the military tribunals in crimes of the general law, to observe a good application and interpretation of law to provide the best guarantees for those referred to the military justice in a way that allows a fair trial and confirmations of the independence and impartiality of the military judiciary as prescribed by constitutional laws and judiciary laws".
The cases that can be challenged are related to crimes of the general law, to observe a good application and interpretation of law to provide the best guarantees.
The job of the Court of Cassation is to monitor applying law and to unify understanding law among all judges according to the intentions of the legislator, because a multiple diligence in understanding texts violates the principle of equality among citizens before law; the appeal filed in the Court of Cassation doesn"t aim at rehearing the conflict between the opponents, because this court isn"t a third class of litigation, and it shouldn"t issue a ruling on the conflict; all it should do when it overturns a ruling is to order a retrial and return it to the court that issued it to hear it with another judiciary..
The unity of understanding of the legal rule means a unity of text, and means equality before law; thus, all the world agreed unanimously that for this end to be achieved, there should be only one Court of Cassation; Dr. Fathi Sorour allocates in his previous book, part three part page 23 a topic entitled "Unity of the Court of Cassation"
He says in it under another subtitle "Unity of the Court of Cassation as a guarantee for doing its job",:" There should be only one Court of Cassation in the country to do this job; this because guaranteeing a good application of law and guaranteeing the unity of justice can"t be achieved unless there only one single court to do this job.
If there are more than one Court of Cassation, every one of them will have its one justice, and thus providing various legal solutions for the same single case, and eliminating the unity of justice.
Dr Sorour details the effect of establishing multiple Courts of Cassation, and ways of tackling the possible difference in their diligence, to guarantee a good application of law and to guarantee its unity.
In the civilized countries all over the world, the military tribunals are concerned with hearing only disciplinary crimes, and are under supervision of the Court of Cassation including France, according to writings of Dr. Fathi Sorour, there is no country in the world that has two courts of cassation: a civil one and a military one to interpret the same text.
If we were obliged, for local reasons, to give a blind eye to giving the military courts the competence of hearing crimes of general law, and give a deaf ear to trying civilians in front of these military courts, to give their rulings whenever they want and whatever they want, how can we, while speaking about the best guarantees and about the constitution and the judiciary law, we establish a second Court of Cassation; isn"t it better that the rulings of the military court regarding crimes of general law be under supervision of the Court of Cassation and move more steps towards reform and give a glimpse of hope to citizens.
Legislation is a duty which is as heavy as the duty of issuing rulings among people; I quoted books of Dr. Fathi Sorour because I know his weight; to sum up, I want to tell Dr Sorour and other legal experts:" are you inventing a justice other than the well-known and accepted justice".