It is important to understand Mohamed Morsi’s background in order to understand how the draft constitution now being submitted to a referendum beginning December 15 is likely to be applied if adopted.
Fiorello Provera, “Egypt’s Monster in the Making,” Project Syndicate: A World of Ideas, December 12, 2012. (Fiorello Provera is Vice-chair of the Foreign Affairs Committee in the European Parliament.)
Eric Trager, “Why Won’t Morsi Back Down? Read His Resume,” The New Republic, November 30, 2012.
Eric Trager, “Shame on Anyone Who Ever Thought Mohammad Morsi Was a Moderate,”The New Republic, November 26, 2012.
Sometimes it is useful to zero in on one aspect of a complicated subject to fully understand what is involved and what is at stake.
The role of women as judges in Egypt under the new constitution sharply illuminates what is going on under the surface of the draft constitution’s articles.
Traditionally, women were barred from becoming judges in Egypt. One of the reforms led by Hosni Mubarak, who for all his sins also defended the secular nature of the Egyptian state, was the appointment of the first woman judge to the Constitutional Court in 2003. Subsequently, he appointed 31 female judges to the family courts, which had just been established.
Peter Kenyon, “Female Judges In Egypt Battle Against Old Ideas,” April 3, 2010.
Human Rights Watch (Beirut), “Egypt: Open All Judicial Positions to Women; Top Judicial Body Should Ensure Women’s Full Participation in the Judiciary,” Human Rights Watch, February 23, 2010.
Kenyon points out that Hosni Mubarak appointed Egypt’s first female judge in 2003. In 2010, there were only 42 women judges out of some 9,000 judges, according to Kenyon. In February, 2010, “the State Council for Administrative Judges voted overwhelmingly against admitting female judges.” However, “Egypt’s prime minister ordered a review of the decision, and the state’s Constitutional Court said there is no constitutional or legal restriction to women serving as judges.”
In February, 2010, Human Rights Watch reported,
In 2003, the only female judge in any court in Egypt was Tahani al-Gibali. She was appointed to the High Constitutional Court by presidential decree. In its 2005 report, “Divorced from Justice,” Human Rights Watch found that some judges and officials of the Justice Ministry were outspoken in their opposition to the inclusion of women on the bench.
In 2007, the Supreme Judicial Council selected 31 women to serve as judges in family courts, though some Muslim conservatives in Egypt criticized the decision. Mohamed El-Omda, a member of parliament, was quoted in a 2007 article in Al-Ahram daily as saying, “Women cannot succeed as judges because the burdens of the task are enormous.”
The first woman judge in Egypt was Tahani al-Gibali (el-Guébali), who as noted above was appointed to the Constitutional Court in 2003 by presidential decree.
See Hadeel al-Shalchi (AP), “Appointment of Female Judges in Egypt Stirs Up Debate About A Woman’s Role; Views about the traditional role of women run deep in Egypt,” CNSnews.com, April 6, 2010.
“El-Gebali has long been a leader for women in the justice system. She was the first woman appointed to Egypt’s Lawyers Syndicate leadership in 1989. She and 24 other female lawyers applied for judges positions in 1998 — the first women to do so, and it took her five years to finally gain a post.”
Now, under Morsi’s draft constitution, the first female judge in Egypt and a leader of the movement to appoint women judges to the courts will be removed from the Constitutional Court as a result of Article 233, which provides:
The first Supreme Constitutional Court, once this Constitution is applied, shall be formed of its current President and the 10 longest-serving judges among its members. The remaining members shall return to the posts they occupied before joining the court.
See The Trenchant Observer, “Morsi’s Putsch: Battle lines are drawn—Details in draft constitution reveal Muslim Brotherhood’s strategy to seize all power in Egypt, as democrats defend the rule of law,” December 2, 2012.
In an interview with Le Figaro (Paris), Justice Tahani El-Guébali (al Gibeli) described how her own job would end, and how Muslim Brotherhood thugs had made it impossible for the Constitutional Court to reach a decision on the constitutionality of the constitutent assembly elections. The intimidation included death threats she received on her mobile phone. She said,
Sunday, while the nineteen members of the High Court were to meet to discuss the legitimacy of the Constituent Assembly, which is accused of failing to represent the country, we were blocked by a barrage of bearded pro-Morsi supporters which prevented us from entering the building. Since then, hundreds of people are camping on site. Whenever I go there, I must turn back under a deluge of insults. I even received death threats on my mobile phone. Since its constitutional coup of November 22, which prohibits any legal proceedings against his decisions and against the Constituent Assembly, the new president has taken over full powers. He-reigns above the law. He imposes his dictatorship.
Q: Morsi’s supporters affirm that the decree is “temporary” and that it aims to accelerate reforms …
A: This is false. The Muslim Brotherhood is trying to kidnap the revolution. They seek to control all institutions, especially the Supreme Constitutional Court. The new Constitution, which they want to submit to a referendum on December 15, limits its powers and jurisdiction, and seeks to to remove eight of its members, including myself. Meanwhile, the Sunni institution al-Azhar is itself granted the authority of interpreting the sharia (Muslim law)…
–See Delphine Minou, “Égypte: « Morsi a accaparé les pleins pouvoirs » (Interview avec Tahani El-Guébali, Vice-presidente de la Haut Cour Constitutionelle d’Egypte), Le Figaro, 5 decembre 2012 (Mis à jour le 06/12/2012 à 11:19).
–See The Trenchant Observer, “Egypt’s coming showdown: Boycott of December 15 referendum, opposition demonstrations, and the reactions of the armed forces,” December 9, 2012.
Of particular significance is the opaque manner in which Morsi and the Muslim Brotherhood are seeking to remove the top woman judge in the country from the Constitutional Court. provisions such as Article 233, couched in seemingly neutral terms, amount to time bombs that could go off in the future under the government of Morsi and the Muslim Brotherhood.
Who knows how many similar, opaque provisions are embedded in Morsi’s draft constitution? There is hardly time before the referendum begins on December 15 to explore these issues, much less for the public to make an informed decision on the basis of any such analysis.
In any event, there are not likely to be many women judges in Egypt under Morsi’s draft constitution and the application of its provisions under a Muslim Brotherhood government.
Nonetheless, sexual discrimination against women judges in Egypt under the draft constitution may have significant consequences in Washington and the United States. President Obama may have to sign human rights waivers for Egypt under the Foreign Assistance Act of 1961 in order for the military to receive its $1.5 billion dollars a year in U.S. military aid. Such waivers could become hot political issues in the U.S. Congress. If, in effect, they give Morsi and the Brotherhood a green light for sexual discrimination against women in the judiciary, they are likely to exact a very high political price from Obama and the Democrats, particularly if the government of Mohamed Morsi icreasingly acquires the characteristics of an authoritarian or even totalitarian Islamic state.
It is appalling that the United States, and above all Hillary Clinton, should be tacitly supporting this move (and Morsi), failing to speak out forcefully–and with consequences–for a return to the rule of law in Egypt, including full and equal rights for all female citizens in that country.
The fact that Hillary Clinton, in particular, is supporting the current U.S. policy of silence on al-Gibali’s removal, and more generally on the rule of law in Egypt, is likely to come back to haunt her should she decide to run for the presidency in 2016. As for President Obama, as noted earlier, his silence is America’s shame.
See The Trenchant Observer, “Morsi’s coup in Egypt: Obama’s silence, America’s shame,” December 7, 2012
The Trenchant Observer