A picture taken on June 21, 2016 shows the entrance of the State Council's building, Egypt's highest administrative court.(KHALED DESOUKI/AFP via Getty Images)

Her Honor Setting the Bar: Fighting for Equality in Egypt’s Judiciary

10/02/2020 . By Omnia Gadalla

From time to time, the media covers the appointment of Egyptian women judges, celebrating their promotions into the ranks of the judiciary and displaying it as a step towards female empowerment and development. Unfortunately, this is not reflective of reality, and such publicity is a card that many governmental and nongovernmental authorities play in order to make real discrimination hidden behind the curtains of anecdotes and single instances.

The issue is much deeper and tangled than is apparent. In fact, Egyptian women are still banned from applying to the judicial posts within the State Council and the Public Prosecution, which has been the case since their establishments in 1946 and 1881 respectively. As it currently stands, Egypt has 16,000 male judges and a grand total of 66 female ones, making up a mere 0.4 percent of the country’s judges. These women were not appointed normally as their male counterparts, but rather, selected from among the already-appointed members in the Administrative Prosecution Authority and Egyptian State Lawsuits Authority. Even this tiny percentage was appointed as cover to appease international standards and demands.

For that cause, Women Empowerment Strategy was issued by the National Council of Women in 2017, a year declared Year of the Egyptian Woman” by President Abdel Fattah El-Sisi. This strategy aims at having 25 percent of judges be women, increasing the total to 4,000. That would have required allocating all future presidential decrees for judicial appointments exclusively to female law graduates for the next ten years and still wouldnt be entirely feasible due to the illegality and unconstitutionality of such a discriminatory approach towards male law graduates. On top of this exists the impossible prospect of state entities willingly participating in such a strategy.

I am one of the Egyptian female law graduates who was prevented from applying to the judiciary due to my gender after my graduation in 2014. As an ambitious fresh graduate who wanted to enter the Egyptian judiciary, I applied, only to have officials refuse to accept my application, along with those submitted by all other female graduates. I suffered from gender discrimination many times but this time I refused to remain silent and established Her Honor Setting The Bar Initiative to combat this flagrant discriminatory ban, working to support other graduates who were banned from applying to the judiciary and suffered from discrimination, too. I filed two cases seven years ago and have pursued legal, judicial, and societal lobbying channels.

Her Honor Setting The Bar Initiative believes that competence, professionalism, and qualifications should be the requirements for those who really deserve to sit on the bar, regardless of their gender. Besides, it is unfair to deprive the judiciary from maximizing the benefits of choosing the most qualified applicants equally based on objective criteria and equal opportunities. Many believe that the issue will not be solved unless the president intervenes. However, due to many political and social factors, the issue has not been prioritized yet.

Obstacles in my legal battle

There were many obstacles along the way, most importantly the procedural and judicial ones. In my first case (No. 30105/2014), I challenged the administrative decision that prevented me from submitting my application documents for holding a judicial position. While litigating the first case, Presidential Decree No. 356 on September 9, 2015, by which my male colleagues were appointed to judicial positions, was issued. Therefore, I had to file a second case (No. 20222/January 2016) to challenge that decree, which excluded qualified female law graduates.

One of the first problems in such cases is that the State Council is the judicial body and defendant at the same time. I submitted my case at the State Council against the State Council (an unconstitutional situation), as I have no other entity to which I can resort. In fact, I was supposed to resort to the “Anti-Discrimination Commission,” whose powers are supposed to include the issuance of binding decisions and can even pursue prosecution of those who exercise such discrimination by virtue of Article 53 of the Constitution. The law creating the body was supposed to be issued in 2016 as one of the supplementary laws to the constitution, but it has not been promulgated until now.

Simultaneously, I was denied the ability to bring the case before primary and secondary degrees of the judiciary and my cases were immediately taken to the Supreme Administrative Court instead. Thus, an initial judgment in the first case would be binding, final, and couldnt be challenged.

Later, the Division Commission Department in the State Council issued reports (a consultative opinion to the court, usually adopted) on the two cases. These reports prioritized the discretionary power of the State Council over international conventions and the Constitution. It also repeated the same justification for what it deemed appropriate standards in rejecting the appointment of women judges. Moreover, the report denied my plea that the Council’s rejection of my application is an act of discrimination and recommended entirely dismissing the case, stating that “the State Council has the right to select the applicants it sees fit and the constitution did not specify any conditions it needs to abide by.”

Regarding the first case, in April 2017, a judgment was issued stating “…the call for applications to hold the judicial position is addressed to male law graduates exclusively…”. The judgment negated the right of female law graduates to apply to the judiciary. This is not the first judgment of its kind, and there is a long historic rejection of female law graduates by other judgments rendered in 1951, 1952, 1979, 2005, 2017, and most recently in 2020. The grounds of each judgment is different. However, the failure to appoint woman judges is persistent.

This is the approach towards female law graduates whenever they apply to the judiciary since it was established a century ago, regardless of international conventions or the Egyptian Constitution, which explicitly grants women all the rights to join all judicial entities.

Furthermore, I did not have a chance to defend my case, submit memos to support my stance, or respond to any relevant inquiries. The judgment was issued in a hearing session without notifying the lawyer or myself with the date of the hearing, denying me the ability to partake in the process. In its judgment, the Supreme Administrative Court contradicted its own precedents, which established being qualified as the first criterion for sitting on the bar, adding that appointing the most qualified applicants is the direct way to reinforce justice. This criteria seems applicable for males only.

With regard to the second case, on February 24, 2018, I challenged the unconstitutionality of the 2015 decree, as well as some articles of the State Council Law No. 47/1972, and its internal regulations. I asked for my case to be transferred to the Supreme Constitutional Court to review and issue its judgment. This represented another obstacle, since the State Council had discretionary power to decide whether my transfer request is accepted or not.

It is noteworthy that 2020 is the 7th year—until now—of litigation in an unsuccessful trial yet to obtain constitutionally fundamental human rights, which are, unfortunately, violated and severely breached. It is a violation of the right to justice,[1] the right to an official appointment on objective criteria,[2] and the right to equal opportunity.[3]. It is a deterioration to the rule of law.

The impact of persistent discrimination

I am a teaching assistant in the Faculty of Law & Sharia’ at Al-Azhar University, where my students are all women. From time to time I receive questions that reflect their sense of being second citizens and not having a seat at the table, despite being qualified. Additionally, some of my students question the effectiveness of the law and its enforcement. What is the use of the law if it is not applied—let alone the Constitution itself?

Such discrimination generally and against women in the judiciary specifically has not only undermined justice and the judicial system and deteriorated the rule of law, but it has also affected current female law students and graduates, imposing barriers on their dreams and barring future generations from pursuing work for which they aspire.

It has also made me wonder, how many girls wanted to be judges and decided to give up studying law for that reason? What about the self-perception of young women who were raised being told—unfortunately sometimes by other women—that they are not capable of doing various jobs, including being a judge?

I remembered what Justice OConnor wrote in her book Majesty of the Law. She expressed what I strongly believe in “…my intuition and my experience persuade me that having women on the bench, and in other positions of prominence, is extremely important. The self-perception of women is informed by such examples, and by the belief of women that they too, can achieve professional success at the highest levels… Breaking free of these stereotypes required some good examples. Recent sociological literature strongly suggests that positive role models play a significant role in professional and other achievements… A paucity of women in positions of power creates a vicious cycle. When women are grossly underrepresented in government and the law and the corporate boardroom, other women are less likely to believe that they belong in positions of power.

Her Honor Setting The Bar Initiative encourages other women who seek judicial appointments to speak up and files cases on their behalf. However, there is another social stigma that affects females who are seeking and claiming their rights to serve as judges. They are labeled as less feminine,” “masculine,” and “not fit for the life of a spouse.” Others invoke religion, arguing that female judges are prohibited in Islam, even after the supreme religious authority (Dar Al-Iftaa El-Massriyah) stated different fatwas that Islam allows women to be judges.

In addition, many female applicants refused to proceed in the litigation process for different reasons, whether it be loss of hope, being busy with work, family commitments, fear of retribution, or hope in the potential of being appointed to alternative prestigious positions they may be eligible for at the Administrative Prosecution Authority or Egyptian State Lawsuits Authority. Personally, I face the same risks, but I have chosen to keep fighting.

Moreover, I received many inquiries from female law graduates who have wanted to file cases and claim their rights. In the end, most of them could not proceed in the litigation process without family approval to file such a case and financial support, factors not limited to those who are economically or socially disadvantaged. It extends to the privileged class, where concerns about family prestige or status may play a role in whether or not a case can be brought and where family approval might remain challenging. While I may be described as a the voice of the voiceless” for this reason, one voice isnt enough. Solidarity matters in such historic crucial cases and collective efforts are needed to reach such a goal. The issue is sprawling and interlaced with many political, historic, social aspects, and misconceptions that are deeply rooted in Egyptian society.

Despite all these societal dilemmas and legal obstacles, I still hope Egyptian women will come out victoriously, occupy judicial positions, and eventually put an end to more forms of discrimination. Reaching such a goal will not occur due to any individual step. Instead, our cumulative steps will make a positive difference towards it. The justice system must be gender-equal.

My next hearing session will be held on October 4, 2020. Will the State Council transfer the case in which it is a defendant and be neutral and impartial? Will the next judgment be different from the others that preceded it? Is Egypt honest in empowering women and applying its women empowerment strategy? Will Egyptian leadership commit to the UN SDGs, 2030 roadmap, and African Agenda? The coming days and judgments will be true answers to these questions and others.

 

Editor’s note: Omnia’s October 4 hearing was adjourned to October 31, when a judgement on her case is anticipated.

 

[1] The right to justice: Articles 92, 93, 94, 97, 99 of the Egyptian Constitution.

[2] The right of appointment on objective criteria: Article 14 of the Egyptian Constitution.

[3] The right to equal opportunity: Article 9 of the Egyptian Constitution.