Attacks on the Judiciary: Judicial Independence - Reality or Fallacy?

Yearbook of Islamic and Middle Eastern Law

Volumn 6, Issue , 2001, Pages 3-21

  Sheriff, Adel Omar ^a  

^a The Supreme Constitutional Court   (Egypt)

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EID: 84929935669     PISSN: 13842935     EISSN: None     Source Type: Book Series    
DOI: None     Document Type: Article

References (67)

1. The attack may be personal affecting certain judge or judges. There are other cases, however, where the attacks generally affect the whole judicial institution in a given country during a certain period of time.
2. “for the Protection ofHuman Rights, MNP, 1993, p. 381.
3. fudge Henry Friendly noted that “as the independence of the decision-maker increases, the need for other procedural safeguards decreases”. Martin H. Redish and Lawrence C. Marshall, “Adjudicatory independence and the values of procedural due process”, The Tale Law Journal, January 1986, no. 91.
4. Adopted and proclaimed by the General Assembly of the United Nations, Resolution No. 217 A (III) of 10 December 1948.
5. Ratified in Rome on 4 November 1950, and entered into force on 3 September 1953.
6. Ratified on 17 September 1787, and became effective for the ratifying states on 21 June 1788, when New Hampshire ratified it.
7. Ratified on 28 September 1958.
8. A law was passed on 3 June 1958 to lay down terms of reference within which the drafters of the new Constitution were to work. The fourth principle of these terms indicated that “the judicial power must remain independent in order to insure the respect of basic liberties”.
9. Ratified on 11 September 1971, and amended on 22 May 1980.
10. Further discussion of judicial independence can be found in the author's previously published article entitled “Separation of powers and judicial independence in constitutional democracies: the Egyptian and American experiences”, in Eugene Cotran and Adel Omar Sherif (eds.), Democracy, the Rule ofLaw and Islam, Kluwer Law International, The Hague, 1999, p. 25.
11. Macdonald et al., The European Systemfor the Protection of Human Rights, p. 381.
12. Macdonald et al., The European Systemfor the Protection of Human Rights, p. 396.
13. Macdonald et al., The European Systemfor the Protection of Human Rights, p. 397.
14. The Federalist, no. 78, The Federalist: a Commentary on the Constitution of the United States of America, The Modern Library, New York, 1937, p. 504.
15. It is clear, from reviewing some of Hamilton's articles on the judicial power (The Federalist 78) that at the time of drafting the Federal Constitution judges were seen as the same as any other public officers, that is Art. II, s. 2, of the Constitution provides that judges, like Cabinet officers and ambassadors, for example, are to be appointed on nomination by the President and confirmation by the Senate. However, while discussing the judicial power Hamilton considered permanence in judicial office indispensable without remarking on the difference between judges and public officers in this respect.
16. This led to accusations that he was less than candid in his discussion of the courts. Walter Berns, “The least dangerous branch, but only if...”, in Leonard J. Theberge (ed.), TheJudiciary in a Democratic Society, Lexington Books, 1977, p. 3.
17. The radio speech delivered on February 1937 by Homer S. Cummings, AttorneyGeneral at the time, is an example of such attacks from the executive side. In this speech Cummings attacked the judiciary calling for new appointees as a method to infuse it. He said: “The judiciary is but a coordinate branch of Government. It is entitled to no higher position than either the legislative or the executive. If the Constitution is to remain a living document and the law is to serve the needs of a vital and growing nation, it is essential that new blood be infùsed into our judiciary.” Cornell W. Clayton, The Politics ofJustice, the Attorney General and the Making ofLegal Policy, Μ. E. Sharpe, 1992, p. 125.
18. An example that plainly shows an attack from the legislature side is the refùsal of the Congress in 1964 and again in 1965 to give the Chief Justice and his associates on the Supreme Court the same US$ 7, 500 pay increase granted all lower Federal Court judges. Instead, the members of the highest tribunal had to settle for only a US$ 4, 500 increase. Henry J. Abraham, The Judicial Process, Oxford University Press, 1975, p. 169.
19. Charles E. Rice, Judicial Supremacy and the Balance of Powers: a Blueprint for Judicial Reform, Free Congress Research and Education Foundation, 1981, p. 17.
20. In this case the Supreme Court ruled that: [Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country as a permanent and indispensable future of our constitutional system. It follows that the interpretation of the Fourteenth amendment enunciated by this Court in [Brown v. Board ofEducation, 349 US 294 (1954)]... is the supreme law of the land”:
21. Charles E. Rice, Judicial Supremacy and the Balance of Powers: a Blueprint for Judicial Reform, Free Congress Research and Education Foundation, 1981, p. 19. In fact, this claim, as noted by Rice, may lead to the conclusion that “the only remedy for those who disagree with the constitutional interpretation by the Court is a formal amendment to the Constitution”:
22. Charles E. Rice, Judicial Supremacy and the Balance of Powers: a Blueprint for Judicial Reform, Free Congress Research and Education Foundation, 1981, p. 20.
23. David Μ. O'Brien, Storm Center: the Supreme Court in American Politics, 3rd edn., New York and London, W. W. Norton, p. 62.
24. The edited transcript of one of a series of AEI fora (AEI Forum 26), held on 12 December 1978, An ImperialJudiciary: Fact or Myth? Comment by John Charles Daly, Public Policy Research, Washington DC, p. 2.
25. Eugene W. Hickok and Gray L. McDowell, Justice v. Law, The Free Press, New York, 1993, pp. 196 and 203. Furthermore, the authors noted that as an institution, the Congress of the United States of America is held in a very low esteem. Most citizens feel their government is distant, inefficient, uncaring and broke: ibid., p. 197.
26. In a presentation by Richard Schifter, Assistant Secretary of State for Human Rights and Humanitarian Affairs, to the international symposium of the Japan committee on the bicentennial of the French Revolution and the Asahi Shimbun which took place in Tokyo, Japan on 20 October 1989, he wrote: “In my present job as US Assistant Secretary of State for Human Rights and Humanitarian Affairs, I have become more fùlly aware than ever before of the importance of an independent judiciary to the cause of human rights”.
27. In an outline prepared by James G. Apple, Chief, Inter-Judicial Affairs Office at the Federal Judicial Center, he indicated eighteen elements as building blocks of an independent judiciary. These building blocks are as follows: (1) separation of powers; (2) equality of status of the judicial branch with other branches of government; (3) separation of the judicial branch from the Department (Ministry) of Justice; (4) judges appointed for life; (5) adequate remuneration for judges; (6) no reduction in judges' pay; (7) adequate staff for judges; (8) removal of judges only by impeachment; (9) the power of judicial review; (10) the disciplining of judges occurs only within the judicial branch; (11) judicial codes of conduct - prohibition against political and other kinds of public activity; (12) a conference of judges (the “Judicial Conference of the US”) controls judicial administration; (13) judges prepare and submit the budget for the judicial branch; (14) judges control rules of procedure for the courts; (15) judges control the day-to-day operation of the courts; (16) judges have control over judicial education; (17) judges have control over court space and facilities; (18) lawyers serve as officers of the court.
28. Kirk Victor, LegalAffairs, 25 May 1996, 'Judgment day”.
29. Report on the January 1996 Judicial Survey, Part 1, The United States Senate Judiciary Subcommittee on Administrative Oversight and the Courts, May 1996, p. i.
30. Times Union, Albany New York, 1 January 1996, “Rehnquist says study a threat to Federal judges”.
31. The editorial of Fort Worth Star-Telegram, 3 January 1996 “Separate and equal”; and the Washington Times, 1 January 1996, “Rehnquist lobbies for court fùnds”.
32. Legal Times, 5 February 1996, “Now the judges face the questions”.
33. Congressional Quarterly News, 15 May 1996, “Grassley says survey shows judicial costs can be cut”.
34. Report on the January 1996 Judicial Survey, Part 1, p. i.
35. Deborah Pines and Bill Alden, “District circuit judges use Senate survey to boast gripe”, New York LawJournal, vol. 215, no. 57, 25 March 1996.
36. Pins, Washington News Bureau, 18 February 1996, “Grassley's examination of the judiciary in füll swing”.
37. “Grassley says survey shows judicial costs can be cut”.
38. Kirk, LegalAffairs, “Judgment day”.
39. Louis H. Pollak, “Criticizing judges”, Judicature, TheJournal ofthe American Judicature Society, May/June 1996, vol. 79, no. 6, p. 299.
40. See also The Legal Times, 1 April 1996, “Judges: attacks on Baer go too far”, p. 12.
41. The editorial of Boston Globe on 6 April 1996, “Judge Baer sees the light”.
42. Seelye, “A get-tough message at California's death row”, New Tork Times, 24 March 1996, p. 29.
43. Mitchell, “Clinton pressing judge to relent”, New Tork Times, 22 March 1996, p. 1.
44. Greenhouse, “Judges as political issues”, New Tork Times, 23 March 1996, p. 11.
45. “Judges: attacks on Baer go too far”, p. 12.
46. See the author's previously published article, “Separation of power”, p. 25.
47. In an interview with the Chief Justice in Al Mosawar weekly magazine he declared that “what concerns the Court is clarifying the constitutional mandates; as to the issue of decisions' enforcement the Court has nothing to do with it”. Al Mosawnr, March 1996, p. 22.
48. The Egyptian Parliament, in accordance with the 1971 Constitution as amended in 1980, consists of two Councils: the People's Assembly which handles the bulk of legislative process (Art. 86), and the Shoum Council which is rather a more consultative body than a legislative one (Art. 194).
49. Dr Ibrahim Alam, El Wafd, 31 March 1996, p. 7.
50. Mohammed Helmy Mourad, El Shaab, 2 April 1996, p. 5.
51. Hassan Hafez, El Wafd, 23 March 1996, p. 7.
52. Abd El-Aziz Mohammed, El Wafd, 4 April 1996, p. 6.
53. Dr Mohammed Lameae El Mallah, El Wafd, 6 April 1996, p. 7.
54. Ahmmed Ragab, Al Akhbar, 23 March 1996, p. 1.
55. In this question, Dr Moustafa Abu Zeid Fahmy, who previously had held ministerial posts during the late President Sadat's regime, asked his student to prove how the Supreme Constitutional Court breached the Constitution by determining effects to its decisions other than those specified by the Constitution and the law. In a directive manner the question went on to ask whether judicial review should be based on whim or legal grounds. And in light of the influence of the United States constitutional jurisprudence on the Court's ruling, the question farther quizzed the students on which was the reference in exploring the constitutionality of legislation, the United States Constitution or the Egyptian Constitution. Al Araby, 17 June 1996, p. 1.
56. Furthermore, “in an article published in Al-Ahram on 17 June, he persisted in his hostile position towards the court. He cited the example of a court ruling issued in 1990, declaring a 1986 parliamentary electoral law unconstitutional. The court also ruled that, from the moment its judgment is published in the official journal all subsequent acts of the People's Assembly would become legally null and void. President Hosni Mubarak responded by issuing a presidential decree dissolving the People's Assembly, elected in 1987. In this way, Abu Zeid argued in the article, the court gave a retroactive effect to its ruling. He pointed out that according to the law and the constitution, such ruling should have taken an immediate effect. In other words, the ruling should not have been applied to the standing Assembly but to the election of future assemblies. Abu Zeid concluded that the court had violated the constitution it is supposed to safeguard.” Al Ahram, 17 July 1996, p. 1.
57. Moustafa Saleem, Fl Sbaab, 21 June 1996. Also, Mohammed El Sadafy, Al Abaly, 19 June 1996.
58. Al Abram Weekly, 11 July 1996, p. 1.
59. Mohammed El Sadafy, Al Abaly, 19 June 1996.
60. Also, Mohammed Saleem El Awa, El Wafd, 25 and 31 July 1996.
61. “Legal sources attribute Abu Zeid's attack on the court to personal motivations. In 1988, Abu Zeid filed a lawsuit against Kamal Khaled, a former independent member of the People's Assembly, claiming that Khaled had made allegations which damaged his reputation in his book Nasseres and Sadat's Men. Abu Zeid claimed E£ 500, 000 compensation. Khaled failed to submit evidence proving the accuracy of the facts in his book within the statutory five days. According to the provisions of Article 123 of the Criminal Procedures Law, Khaled thereby lost his right to present evidence. Khaled then contested the constitutionality of Article 123, and in 1993 the Constitutional Court ruled that the article in question was unconstitutional. It is since this date, the sources say, Abu Zeid began to attack the Constitutional Court after years of praise, describing its rulings as: 'judicial treasure'. Khaled linked Abu Zeid's latest attack on the Constitutional Court to the current parliamentary campaign which is attempting to undermine its role.” Al Abram Weekly, 11 July 1996, p. 1.
62. Deya El Deen Dawod, Al Araby, 8 July 1996. Also, Dr Nabil Ahmmed Helmy, Al Abram, 13 July 1996.
63. The request was filled by Dr Shawky El-Sayed, lawyer and member of the Sboara Council, Al Abaly, 19 June 1996.
64. El-Sayed informed the Prosecutor-General of the “crime Abu Zeid has committed against the court”. Prosecution investigations into the case began earlier that week. In reaction, Abu Zeid filed a lawsuit against El-Sayed, accusing him of libel and demanding E£ 500, 000 compensation. El-Sayed then filed a E£ 1 million counter lawsuit against Abu Zeid assuring that “Academic criticism has nothing to do with the usage of vulgar and indecent expressions.” Al Abram Weekly, 11 July 1996, p. 1.
65. ElAkbbar, 20 June 1996, p. 15.
66. Nevertheless, “Merghani Khairi, professor of constitutional law at Ain Shams University backed Abu Zeid in his right to express his opinion. However, he had reservations about his approach. 'Everyone has the right to adopt whatever opinion he likes, ' he said. 'But the problem is that Abu Zeid attempted to impose his opinion, using an aggressive style and improper words to defend his views.' According to Khairi, legal texts are flexible, and should not be interpreted word for word. 'The law said that rulings of the Supreme Constitutional Court should take “immediate effect”. However, jurists agreed that the non-application of unconstitutional laws should begin from the moment those laws are issued, ' said Khairi. 'In 1984, the Supreme Administrative Court decided that rulings of the Constitutional Court should be applied retroactively. These rulings, the court said, were not limited to cases that fell under the criminal law. The explanatory note attached to the law covering the Supreme Constitutional Court was of the same opinion.' Khairi believes that dissolving the People's Assembly was a logical step in view of the fact that it had been elected by means of an unconstitutional law. The Court, Khairi added, had only ruled that the parliamentary election law was unconstitutional, and the decision to dissolve the Assembly was implemented by presidential decree. The Court sustained the validity of all the laws which were passed by the People's Assembly until the date of its dissolution, and this is a point in its favor.” Al Ahram Weekly, 11 July 1996, p. 1.
67. This decree law is published in the Official Gazette No. 28 Mokarrar on 11 July 1998. An explanatory memo of this decree law, as well as a correction of part of its wording, was published the following day in the Official Gazette No. 28 Mokarrar B on 12 July 1998.