As a starting point, Nizar Saghiyeh and Samir Ghamroun, respectively a lawyer and a researcher in the sociology of law, as well as editors of Legal Agenda, a monthly publication that discusses legal and judicial topics, expressed how following the 2011 revolutions in Egypt and Tunisia, a window of research opportunity opened up, noting how obtaining access to research in the judicial field had been difficult under the former regimes of Mubarak and Ben Ali.
The purpose of the research was not to draw comparisons between the judiciary in Egypt and in Tunisia, particularly since a number of judges found themselves facing difficult legal predicaments. Ghamroun pointed out that many Tunisians and Egyptians believe the judiciary is part of the regime and that, for the most part, studies have excluded the judiciary, focusing instead on authoritarian regimes. To date, how judges make use of regimes remains unclear, while studies abound on how regimes make use of the judiciary. Fifty official interviews were thus conducted in Egypt and dozens more unofficially. Ghamroun explored the judicial opposition to the Ben Ali regime in Tunisia, noting that interviews were conducted with dissident judges as well as judges who did not dissent. The two researchers worked to develop the interviews and touched upon the problems faced by judges who opposed dictatorship. As for the judges who did not stand up to dictatorship, no mention was made, which posed something of an ethical problem for the research. The researchers used the terms “accommodating” and “not accommodating” to classify judges in Tunisia—those who obey instructions are accommodating, and, consequently, do not represent a source of anxiety for the regime. In these categories are also judges who agree to provide services and carry out instructions, others who have no objections, and some who outright refuse. Some judges, continued Ghamroun, were even tortured under the Ben Ali regime. Judges that confronted the authority were the exception.
Ghamroun noted how the judicial upheavals that occurred in Tunisia in 2005-2006 were exceptional in Tunisia’s history as the courts had previously maintained a truce with the political authority. Under late President Bourguiba, judges were dismissed at one point. Ben Ali, however, worked to normalize relations with them over the years without resorting to direct repression. The concept of judicial independence was simply left to gather dust.
Egypt’s judiciary, on the other hand was divided between the government’s judges, who supported Mubarak, and those who made accommodations for him; in doing so, they preserved the traditional fabric of the judiciary in terms of independence, respect for the internal judicial hierarchy, and wariness towards the media. Lastly, also portrayed were the judges who clashed with the Mubarak regime in 2005, who worked to develop judicial principles such as taking to the street in defense of judicial independence, holding sit-ins, demonstrating and clashing with the police.
In his conclusive remarks, Ghamroun suggested moving beyond the idea of distinguishing between the dissident judge and the cooperative judge, and expressed the need to defend the judiciary as a profession and to study the relationship between the legal system and politics.
The Post-Revolution Phase
Nizar Saghiyeh talked about the post-revolution period in Egypt and Tunisia, noting that change had indeed taken place in the judiciary of both countries on many levels. In Tunisia, there were calls to purge the judiciary. The Judge’s Association had defended the legitimacy of the revolution against the pro-regime Bar Association, which led to strident debates between the two parties, ending with dialogue coming to a halt. Competition between them also played out in the media and public sphere.
Saghiyeh praised the recent creation of a Judicial Commission in Tunisia which has rejected the Minister of Justice’s decisions; the Commission’s work is also supported by the Judge’s Association. With regards to Egypt, Saghiyeh said that the common factor between pro- and anti-Mubarak judges was the refusal to allow interference in judicial affairs, with disputes being settled within the Judges’ Club, characterized by a strong defense of independence. He noted how in 2005-2006 there were many disagreements over judicial traditions. In 2011, the judiciary turned to the media and judges set up Facebook pages. The increased use of Facebook among judges has had a ripple effect in Morocco.
Saghiyeh questioned whether judges were part of the regime, and thus fell with it, or whether the situation was different after the revolution. He also considered whether a purge should take place before the judges were granted powers or whether the judiciary should purge itself from the inside. He concluded by pointing to judicial issues, such as the rejection of exceptional courts, the rejection of military trials for civilians, and the Attorney General’s independence from the political authorities.
|Specialists, academics, researchers, university professors, judges, and lawyers attended the event
Dr. Sari Hanafi, professor of sociology as the American University of Beirut, pointed to what he termed the “filtering” process traditionally applied to those aspiring to enter the judiciary in Arab countries, meaning prior security approval and the consequent exclusion of specific groups, such as the Left and Brotherhood Islamists, from the judiciary. Hanafi asked how this problem should be handled when some judicial decisions after the revolution remain unchanged.
Dr. Mona Fayyad, professor of psychology at the Lebanese University, made some observations and asked about the concepts of accommodation and impartiality among the Egyptian and Tunisian judiciary. She gave an explanation of accommodation from a psychological perspective, saying it meant a conformist personality, that is one who obeys and implements. Dr. Tony Attalla, law professor at the Lebanese University, suggested that the term authoritarian be used rather than tyrannical so that the researcher could maintain his neutrality. He added that the word accommodation was a euphemism for compliance, and hoped that efforts would be made to publish good legal rulings. Member of the Constitutional Assembly and sociology professor Anton Masarra remarked that the word accommodation is essentially equivalent to compliance. He also noted that the requirement for judicial reticence [on public affairs] was a passive requirement and that justice was a problem of society.
Adnan Labban, a student at Al-Hikmah University questioned the extent to which the judiciary could be independent under dictatorial regimes. Yassir Mustafa, a Lebanese judge, said that the system in Lebanon was not dictatorial and blamed the judges themselves for the problem in Lebanon. He rejected the idea that the judiciary was bad or a failure because of the individual actions of some judges, and asserted the need to lay down rules and criteria for the work of the judiciary, among them the requirement for reticence. Dr. Khaled Suleiman, professor of law at the Lebanese University and an Appeal Court judge in North Lebanon, emphasized that judicial reticence is fundamental to the operation of the bench, and considered that every new authority brings its own judiciary. He hinted that there had been little change in Egypt or Tunisia and that dealing with the judiciary in both of them is a process that will require at least another 30 years.
Dr. Nahawand al-Qadiri , professor in the media department at the Lebanese University, spoke of the need to research the judicial heritage to make a useful analysis. Dr. Masoud Yunis, professor of the sociology of law, considered the political system in Tunisia to differ from that in Egypt. Tunisia was more of an intelligence-agency state, whereas Egypt was primarily institutional. He pointed to the system of sectarian and family group-loyalty prevalent in Iraq and Syria which had made the judiciary a hollow body.
Dr. Ezzat Suleiman considered the discussion panel to be outside the discipline of legal studies. She asked about the criteria for purging the judiciary, which she stressed should mean getting rid of corruption rather than the followers of one president or another. She distinguished between the administrative judiciary, the justice system to defend the people, and the constitutional courts that defend the state. She pointed out that the constitutional judges in Egypt had been able to defend the state.
Judge Yahya Ghabour expressed his pleasure that one-third of the Lebanese people had confidence in the judiciary, while stressing that Arabs are living in settings where the regime is a collection of tribes where the state is absent. Dr. Rafif Sidawi expressed the hope that the research on the judiciary can probe beyond the question of the relationship between dictatorship and the judiciary.