Tahrir Squared: “Dispute Over Egypt’s Prosecutor Pits Morsi Against Judiciary, Again”

A new front in the ongoing power struggle between Egypt’s judiciary and the executive branch opened on March 27, when an appeals overturned President Morsi’s dismissal of public prosecutor Abdel Meguid Mahmoud and ordered his reinstatement. Amid reports that Morsi’s government plans to appeal the decision, protesters demanding the implementation of the ruling and respect for judicial independence attempted to block the entrance to the prosecutor’s office and marched from Tahrir Square to the High Court building on March 29.

Morsi had forced out Mahmoud with a controversial executive decree issued last November, which imposed a four-year term limit on a post that Mahmoud had held since 2006, in addition to immunizing presidential decisions from judicial review. Morsi swiftly replaced Mahmoud with a new prosecutor, Talaat Abdallah, a career judge rumored to be at least sympathetic to and possibly a member of the Muslim Brotherhood. Under Egypt’s new constitution, the president appoints the prosecutor “based on the selection of the Supreme Judicial Council from among the Deputies to the President of the Court of Cassation, the Presidents of the Court of Appeals and Assistant Prosecutor Generals,” but proponents of judicial independence have long advocated for full judicial control over prosecutorial appointments.

Although Mahmoud was considered a holdover from the Mubarak regime and his removal had been a longstanding demand of revolutionary groups, the opposition was alarmed by Morsi’s use of a unilateral executive decree to circumvent a provision in the Law on Judicial Authority that normally shields the prosecutor from removal by presidential order. Over the past few months, a series of politically charged investigations of activists and journalists initiated by the public prosecutor have raised concerns that the office has lost all semblance of neutrality and is being used as a political weapon by the executive branch to intimidate and silence its opponents.

The March 27 ruling comes at a time when the public prosecutor’s office is facing intense scrutiny for its role in ordering the arrest and interrogation of five anti-Islamist political activists on charges of using social media to incite violence against the Muslim Brotherhood.

Opposition activists have accused the prosecutor of applying a double standard – cracking down on anti-Islamists for using violence against their opponents while turning a blind eye to similar abuses by Morsi supporters. For example, Ahmed Douma, one of the activists charged with inciting violence, was himself assaulted (on video) by Brotherhood supporters outside of the group’s headquarters last week.  Lashing out at the prosecutor for ignoring evidence that violence outside of the Brotherhood headquarters was perpetrated by both sides, Douma suggested that Prosecutor Talaat Abdallah must either be “literally blind” or “complicit.”

Several of the summoned activists initially refused to appear in court, calling the politically motivated trial “a farce” conducted by a politicized judicial body that has lost its legitimacy. Such statements reflect a total loss of public confidence in a prosecutor who is viewed as prioritizing the interests of the president above the law.

To be fair to Morsi, executive oversight and intervention in the public prosecutor’s office has been a problem since 1875, when Egypt became the first Arab country to incorporate the office of public prosecutor into its legal framework with the establishment of the mixed courts system.  In well-functioning democracies, independent prosecutors play an essential role in investigating corruption and holding public officials accountable for abuses of power and rights violations.  But in Egypt, the independence of the office has been severely undermined by the president’s control over prosecutorial appointments.  The public prosecutor’s office has always functioned more as an extension of the executive branch than as an independent judicial body, and Morsi’s appointment of a known Brotherhood Sympathizer, Talaat Abdallah — to whom Egyptians cynically refer as “the private prosecutor” or even the president’s “personal lawyer” — confirmed fears that any separation of powers between the presidency and prosecution collapsed long ago.

Proponents of judicial independence believe that reforming the public prosecutor’s office is essential to enforcing a more democratic balance of power between the executive and judicial branches. Constitutional amendments passed in 2006 took some steps, on paper, toward strengthening the autonomy of the prosecutor’s office by reducing the Justice Ministry’s oversight of its activities, but the reforms failed to address the single greatest obstacle to prosecutorial independence: direct presidential appointment of the public prosecutor, which has now been enshrined in the new constitution.

The practical effects of the March 27 court ruling are still unclear. Former public prosecutor Mahmoud has reported receiving “a barrage of telephone calls” congratulating him on his reinstatement. However, sources close to the Muslim Brotherhood and its Freedom and Justice Party insist that the court-ordered reinstatement of Mahmoud is “not going to happen.” The ruling can – and almost certainly will — be appealed, and in the meantime, the current public prosecutor, Talaat Abdallah, has no intention of resigning his post. According to one of Abdallah’s aides, Hassan Yassin, the March 27 verdict is “full of loopholes” and is unlikely to survive an appeal. Although the original presidential decree removing Mahmoud was lifted, the four-year term limit it imposed on the prosecutor was preserved in Article 173 of the new constitution, and defenders of Talaat Abdallah insist that his appointment is constitutionally protected and therefore irrevocable.

But while Abdallah remains in office, some legal experts believe that the decision has stripped him of his powers to issue arrest warrants or refer cases to court. If this is true, then Egypt’s prosecutorial system could be brought to a standstill until Abdel Meguid Mahmoud is reinstated. Constitutional scholar Mohamed Nour Farahat has stated that any decision made by Talaat Ibrahim will be considered legally “void.”

The March 27 ruling is only the latest in a string of judicial decisions that Morsi’s government has either questioned or flat-out refused to implement. The judiciary is fast losing patience with this pattern of executive resistance to court rulings, and it is possible that the judges will retaliate by suspending court proceedings or threatening to boycott their obligation to monitor the upcoming parliamentary elections, as they have done in past confrontations with the presidency.

At the core of the current dispute is a disagreement between the presidency and the judiciary over which takes precedence: court rulings or executive decrees, which Morsi is using even more frequently – and less transparently – than his predecessor, Mubarak, according to a new study of presidential decision-making. High-level officials, including Justice Minister Ahmed Mekki, have publicly acknowledged that the current disagreement over the public prosecutor “is first and foremost a political crisis, and not a legal or judicial one.”

Although the president and Muslim Brotherhood have repeatedly asserted their commitment to rule of law and judicial independence in recent weeks, these assurances are now ominously qualified by the caveat that current conditions necessitate the imposition of “exceptional measures to restore domestic order,” raising concerns that the president may be on the verge of declaring a state of emergency — one of the most hated weapons of the Mubarak regime, and one that Morsi did not hesitate to utilize during anti-government protests in January.

Morsi and the Muslim Brotherhood are promoting a warped version of rule of law in which unilateral executive decisions can override the country’s highest courts.  A great paradox of Morsi’s presidency has been his failure to recognize that repeated assaults on judicial independence have undermined, not strengthened, the legitimacy of the executive branch.

Mara Revkin is a student at Yale Law School and former Assistant Director of the Atlantic Council’s Rafik Hariri Center for the Middle East. She can be reached at mara.revkin@yale.edu and on Twitter @MaraRevkin. This article originally appeared on Tahrir Squared.

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