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Why Egypt's conservative judiciary doesn't always do Sisi's bidding

Jailing Islamists and sentencing them to die, Egypt's judiciary often seems to be an arm of the authoritarian regime. But the giant bureaucracy acts in its own interest, sometimes at odds with Sisi's.

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    Supporters of the Muslim Brotherhood and other Islamists gesture from the defendants cage as they receive sentences ranging from death by hanging for one, life in prison for 13 and 8-15 years for the others after they were convicted of murder, rioting, and violence in a mass trial in Alexandria, Egypt, May 19, 2014.
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An independent judiciary is often seen as indispensable for the healthy functioning of a democracy.

So it may come as a surprise to the casual observer that in Egypt, where the judiciary has appeared to do the bidding of authoritarian President Abdel Fatah al-Sisi – suppressing dissent, jailing thousands, sentencing Islamists to die by the hundreds – the massive bureaucracy does have some independence. But it is better understood to be acting in its own self interest and that of its members.

Since the overthrow of Islamist President Mohamed Morsi in July 2013, more than 40,000 people have been arrested. Egypt’s prisons are choked with inmates, and mass trials have become the norm.

In June last year, the most infamous “hanging” judge of all –  Mohamed Nagy Shehata – jailed three Al Jazeera journalists on charges that many decried as deeply flawed. More recently, he has handed down hundreds of death sentences against supporters of the banned Muslim Brotherhood, the movement that had carried Mr. Morsi to power.

But legal experts caution against interpretations that dismiss these decisions as a product of pressure from the top – they say Egypt’s judges are following their own interests, in line with a culture that prioritizes stability and security. In some instances, political analysts say, the courts’ actions are even costly to the regime.

“It doesn’t seem the jail sentences are costing the authorities internally – their political capital seems unaffected,” said H.A. Hellyer, a nonresident fellow at the Brookings Centre for Middle East Policy and Royal United Services Institute. “On the international stage, that’s a different matter entirely.”

Dr. Hellyer points to the fact that media outlets and human rights groups continue to publicize the judiciary's harsher sentences, with a knock-on impact on Egypt's international image “that’s not going to stop anytime soon,” he says.

“Co-opted and independent” is how Sahar F. Aziz, an associate professor of law Texas A&M University, described the relationship between the judiciary and presidency in a recent paper.

Historically, the judiciary has been both a friend and a foe of Egypt’s presidents. Like the Interior Ministry that controls the police, it is a giant bureaucracy that owes its size and power to an era of socialist-style nation-building under Gamal Abdel Nasser. Although judges have rubber-stamped policies and power grabs of successive dictators, they have also reacted fiercely when their power has been challenged

Morsi spent his final months in power at loggerheads with the judiciary, after they pushed back against his attempt to push thousands of Mubarak-era judges into retirement by lowering the maximum age for judges.

Many judges are former police

The tumult of Egypt’s 2011 revolution threatened to do just that, subjecting the judiciary’s nepotism and lucrative bonuses to scrutiny, Ms. Aziz argues. In the years that have followed, the institution has thrown its weight behind those powers that will help them maintain these practices. For now, that is the Sisi regime.

In March, a judge in the Nile Delta city of Zagazig underscored this message with a flourish. Before acquitting eight senior police officials accused of killing protesters, he began with a heartfelt speech to the accused. “You have to know that you are not defendants, you are heroes,” he said.

The judiciary’s mentality is determined by a host of structural factors, relating to who the judges are, and where they hear their cases. The judges are often former policemen.

Some lawyers say their families received background checks from state security before they were assigned to their first job. 

Defense attorneys say this bias often makes cases difficult to argue successfully.

Trials held in prisons, police stations

“A person who has served the state for that long, can't suddenly switch sides and move to serve justice,” says one lawyer, Ahmed Ramadan. “He rules with the eyes of the state and the mindset of an officer."

For many of these former security officials, trials are now taking place on home turf. As Egypt’s judicial system has struggled to cope with the sheer volume of prisoners being tried everyday, sensitive cases are frequently held within sprawling prison complexes, and even police stations.

“You can't raise a case against your neighbor and then have the trial at his place,” says Mr. Ramadan.

There is evidence to suggest that Sisi’s office has sometimes exerted pressure of its own. Last December, a leaked recording appeared to capture Abbas Kamel, Sisi’s chief of staff, and Mamdouh Shahin, an Army general and the military’s chief legal adviser, discussing a controversial case. “I’ll speak to the judge,” Shahin promises. “Don’t worry."

But more often, experts say, such pressure is unnecessary.

“The law itself is often authoritarian in content and it leaves tremendous discretion in security matters to security officials and the prosecutor general,” says Nathan Brown, a political science professor at George Washington University, adding that more subtle ways to influence the system include choosing which judge takes the cases, and how evidence is handled.

'The judiciary is a family'

In Egypt’s legal system, judges play an inquisitorial role, supervising the collection of evidence and directly questioning suspects in court.

“We thought this whole system would change [after the revolution], but it can’t be changed from the inside,” says Hayam al Ganayny, a lawyer working on a campaign to increase female representation within the profession. “The judiciary is a family. Who will change it among them?”

But there are still flashes of hope for the thousands of prisoners passing through Egypt’s court system. According to Professor Brown, Egypt’s long and complex appeals system offers numerous opportunities for sentences to be reduced or dropped altogether.

“As they work their way through the system, there will be opportunities for more professional and level-headed judges to have their say,” says Brown.

But until that point – if it ever comes – attorneys say the best defense is not a keen study of the evidence.

“A good lawyer knows law,” Ramadan says. “A better one knows a judge.”

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