The Courts for Urgent Matters: Legislation from the Bench

07-15-2014

Reversing a verdict which initially banned Mubarak-era officials from contesting presidential and parliamentary elections, the Cairo Appeals Court for Urgent Matters has decided that National Democratic Party (NDP) members can indeed run for office in upcoming elections. The verdict, issued on July 14, 2014, determined that the Court for Urgent Matters had not been acting within its jurisdiction when it issued its opinion on a matter that should have been litigated solely by an Administrative Court. Since the ousting of former President Muhammad Morsi, the judiciary has taken on an increasingly active voice in issuing verdicts that have far-reaching political and civil rights implications, raising serious concerns on the role of the Egyptian judiciary and the lack of checks on this state institution. Particularly, when the Cairo Court for Urgent Matters issued an injunction banning the Muslim Brotherhood in September 2013, many observers who had never heard of the Court for Urgent Matters began to wonder how a court as long-ignored as this one had made headlines for the first time in a country with a judicial history as rich as Egypt’s.

Historically, the Egyptian judiciary, made up of about 15,000 judges and prosecutors, has been one of the strongest, if not the strongest, state institution in the country. While the judiciary may have been the source of numerous calls for reform throughout the Mubarak regime, there is no doubt that the institution also housed a number of regime-affiliates who were rewarded for loyalty to the state throughout their tenure. Working with a disproportionately-authoritarian set of decrees and legislation, the judicial scheme often led to verdicts that empowered already-existing state institutions and gave increased leeway to government officials and state security bodies when contending with disputes. This became increasingly clear in many of the politicized verdicts issued since January 25, 2011, including the Port Said Massacre, the Mubarak and Adly corruption and protester trials, and issues of Constituent Assembly and Shura Council constitutionality. The decisions in these cases and others very rarely, if ever, found state-affiliated defendants at fault and have since created a bubble of protection for officials within the Ministry of Interior, Defense, and other entities.

Thus, politicized judicial decisions in the post-Morsi era should come as no surprise. However, what has been truly remarkable is the rise of the Court for Urgent Matters, a judicial body that has long flown underneath the radar and is little understood by most observers. The remarkably politicized role that this court has played in recent months, and continues to play even today, juxtaposed with its original role to litigate everyday urgent civil disputes between Egyptian citizens, makes for a state body that now demands greater attention.

Jurisdiction of the Court for Urgent Matters

Set up to litigate “urgent” civil matters that must be addressed immediately, the Court for Urgent Matters settles disputes that are no longer timely if litigated through the regular court system. According to most judicial scholars and interpretations of Egypt’s civil procedure laws, the Court for Urgent Matters has jurisdiction when (1) the case is urgent and there is a fear that procedures may take too long in the court that would regularly have jurisdiction, thus making the matter moot and (2) that an injunction issued in the case would serve as a temporary measure, rather than a ruling on the substance of the case or right involved.

Courts for Urgent Matters, which exist in every Egyptian city in which there is a Court of Grand Instance, only deal with urgent matters that take place in their respective cities. If there is no Court for Urgent Matters in the city in which an urgent matter is raised, the Court of Small Instance will have jurisdiction to deal with matter at hand. If an urgent matter is raised as an ancillary matter in a larger substantial case, the plaintiff has the choice of where to bring the case.

Injunctions issued by the Court for Urgent Matters are judicial actions granted provisional enforcement. These injunctions are meant to complement or pave the way for future verdicts that will be issued on the matter at stake through the regular court system. Injunctions are meant to be regarded as temporary in spirit, although they are binding during the time at which they are issued; when the matter is ultimately litigated through the regular court system, the verdict issued by the regular court system replaces the one issued by the Court for Urgent Matters.

To ensure ease and speediness of process, there is a lesser evidentiary standard for the litigation of urgent matters; evidence is looked at on a superficial basis to determine whether there could potentially be a right at stake, and not necessarily whether the right is actually being harmed.

Recent Activity by the Courts for Urgent Matters

In light of the Egyptian rules of civil procedure, the Courts for Urgent Matters have historically litigated basic disputes that involve civil matters of disagreement between everyday citizens on issues of land allocation, renting contracts, and other ownership claims. Cases in which there is fear of a remedy becoming impossible or a witness dying due to old age often make their way to these Courts and are settled in a manner that does not have long-term or broader implications for the rights at stake, but instead, provide immediate remedies through a shorter judicial process.

Despite their non-political history, the Courts’ recent decisions to take on controversial cases that are reactions to the political, social, and economic developments end up taking on the tone and jurisdiction that would normally only be granted to a Constitutional or Administrative Court. Verdicts issued by the Courts for Urgent Matters today are, instead of settling simple disputes, empowering the Egyptian state and its institutions at the expense of individual freedoms and leaving long-term implications for constitutionally-enshrined rights like the rights to assembly, political participation, and expression.

Starting in September of 2013, in response to heightened mass alienation of the Muslim Brotherhood and in the wake of the Rabaa and Nahda sit-in dispersals, the Cairo Court for Urgent Matters began a stream of politicized verdicts by banning the Muslim Brotherhood and freezing its funding, ultimately paving the way for the presidential decree which labeled the group as a terrorist organization shortly thereafter; the same Court would formally designate the group as a terrorist organization in February of the following year. Building on this momentum, the Alexandria Court for Urgent Matters also banned the Brotherhood from contesting both presidential and parliamentary elections in April 2014.

At a time of increased crackdown on Islamist and secular opposition forces alike, the Muslim Brotherhood has not been the only target of the verdicts issued by the Urgent Matters Courts; movements and parties that have been instrumental in street organizing, have held prominent roles of influence, and have been sources of potential upheaval have also been the subject of such injunctions. In March 2014, the Cairo Court for Urgent Matters ordered the banning and freezing of Hamas, considered by many to be an affiliate or off-shoot of the Muslim Brotherhood in Palestine. In April and May of 2014, the Court also banned the April 6 Movement and placed a ban on members of the Mubarak regime’s National Democratic Party from contesting future elections; the latter verdict was reversed in a decision by the Appeals branch of the Urgent Matters Court in July 2014.

Even more broadly, the Courts for Urgent Matters have taken a clear stance against all forms of opposition and issued injunctions that seriously impact the ability of individuals to protest. For example, December 2013 witnessed an injunction which banned demonstrations on university campuses without prior authorization from university presidents, furthering the impact of the controversial Protest Law. In April 2014, the same court also issued an injunction posting guards at the Teachers Union and severely impeding the ability of the body to properly organize. Finally, in May 2014, an injunction setting forth the Ministry of Interior as responsible for on-campus university security was issued.

The aforementioned cases afore the Courts for Urgent Matters represent a disproportionate amount of political content that would not normally fall within the hands of urgent courts. The cases have largely been brought by state-aligned lawyers ((For example, Mohammed Amr Mostafa, who brought the case in which an injunction banning university demonstrations was issued, is affiliated with regime-aligned television anchor Tawfiq Okasha.)) who seek to build on the nationwide sentiment against freedom of assembly and the opposition’s right to exist. While lawyers like these have always existed, what is new is the rise to prominence of three or four justices in the Courts for Urgent Matters who are willing to settle disputes that are significantly beyond their jurisdiction and issue injunctions that, rather than provide immediate temporary solutions for civil disputes, impact constitutionally-guaranteed rights in a lasting manner ((Mohammed Al-Sayyed was the head judge in the injunctions regarding the banning of the Muslim Brotherhood, the banning of demonstrations on university campuses, and the posting of guards at the Teachers’ Union. Tamer Riyad was the head judge in the injunctions designating the Muslim Brotherhood a terrorist organization and banning the April 6 Movement. Kareem Hazem Abdel-Hady was the head judge in the injunctions banning Hamas as an entity and the NDP from contesting elections and putting Ministry of Interior forces on university campuses. Finally, Maged Zakariya Abul-Suood was the head judge in the injunction banning the Muslim Brotherhood from contesting elections.)) . Before the ousting of Morsi, the issuing of politicized Urgent Matters verdicts would have been absolutely unheard of; today, it is a monthly occurrence and one with a reach that only continues to grow and reflect worrisome implications.

The decisions of justices to take on such politicized cases are problematic and reflect a willingness of the judiciary to empower state bodies at the expense of individual freedoms. Even aside from issues of judicial biases, it is important to realize that the structure of the Courts for Urgent Matters is not appropriate for the legislating of political issues. While the Court for Urgent Matters was set up to ensure that the time for justice does not pass, courts with such jurisdiction face the challenge of balancing speed with the right to a proper defense, determining which matters are urgent and which are not, and issuing injunctions that are temporary and do not compromise the essence of substantive rights. Thus it becomes easy for a court like this one to compromise the very principles it is meant to embody.

From a legal perspective, there is no doubt that the Courts for Urgent Matters have exceeded their jurisdiction. This became increasingly clear when the Appeals Court reversed the parliamentary ban issued against the NDP by the Cairo Court for Urgent Matters due to a lack of jurisdiction; the Appeals Court’s verdict confirms that matters like the NDP, April 6 Youth Movement, and Muslim Brotherhood bans should be investigated deeply and dealt with through the Administrative Courts that have the capacity, time, and resources investigate such politically-nuanced issues, rather than through a hasty process with lesser evidentiary requirements. While the decision by the Appeals Court is technically legally sound in that it seeks to constrain the broad jurisdiction inappropriately claimed by the Urgent Matters Courts, there is no doubt that it reflects a symbolic blow for the revolution and also raises questions on whether appeals regarding the Muslim Brotherhood and April 6 Youth Movement bans will be equally successful and granted the same consideration under the law.

In a system in which very few checks exist to keep the judiciary in check, having an urgent court that values speed and efficiency over justice is problematic in and of itself; however, it becomes exponentially more problematic when this court begins to settle disputes that are significantly beyond its jurisdiction and have long-term political implications that may take years to overcome. Determining whether a political organization should be banned, for example, is a matter to be settled by months of deliberation in a constitutional or administrative court, rather than an issue quickly decided through hasty sessions and after superficial review of evidence in a court meant to handle basic civil disputes. Although analysts have long turned a blind-eye to the activity of the Court for Urgent Matters, it is becoming painfully clear that, in the absence of a national parliament, the Court has begun to legislate from the bench in a manner that Egypt can no longer afford to ignore.

Mai El-Sadany

Mai El-Sadany

Mai El-Sadany is the Non-Resident Fellow for Legal and Judicial Analysis with TIMEP. She has previously worked at Robert F. Kennedy Human Rights; the American Civil Liberties Union; Human Rights First; Kohn, Kohn, and Colapinto LLP; and the Carnegie Endowment for International Peace. Ms. El-Sadany has been published on legal and constitutional issues in Egypt, sectarian violence in the Middle East, and the split between Sudan and South Sudan. She holds a J.D. and certificate in refugees and humanitarian emergencies from the Georgetown University Law Center and a B.A. in political science from Stanford University. You can follow her on Twitter: @maitelsadany.
Mai El-Sadany

@maitelsadany

Human Rights Law | MENA | @NABystander | @SyriaCalendar | Non-Resident Fellow for Legal/Judicial Analysis @TIMEPDC | @Stanford & @GeorgetownLaw Alumna
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