Women still marginalised from judiciary

“When I was appointed by the Constitutional Court in 2003, I felt Egypt had taken a very important step towards building a freer, more equal merit-based society,” said Tehany al-Gebaly, Egypt’s only female judge. “Three years on, I am saddened to see that the obstacles to women joining the judiciary remain firmly in place.” In Egypt’s approximately 6,000-strong judicial body, al-Gebaly is the only woman in an executive judicial role. She was appointed to the Constitutional Court in 2003 following a long-standing battle with the system to include women in the ranks of the judiciary, which essentially remained the only public position women were barred from well after they gained the rights to vote and run for political office in 1956. Key among the groups preventing the admission of women into the ranks of the judiciary is the government Higher Judicial Council, in charge of nominating judges, according to Nasser Amin, director of the Arab Centre for the Independence of Jurisprudence. There is no law or article in the Constitution preventing women from holding judicial positions. “On the contrary, Article 40 in the Constitution guarantees equal rights and duties for all Egyptians,” said director of the Egyptian Centre for Women’s Rights (ECWR) Nehad Abul Qumsan. “Ending age-old discrimination against women in the judiciary is, however, a barrier which the government does not seem willing to cross.” Disputing the right to pass judgement Observers agree that government reticence to push for greater gender equality in the judiciary is, in part, born of fear that religious opposition would be stirred. “The government is worried that it will stir the anger of Islamist opposition groups, including the Muslim Brotherhood,” said Nasser Amin, director of the Arab Centre for the Independence of Jurisprudence (ACIJ). He added that the government is careful not to upset the careful balance it maintains between the phenomenon of rising Islamisation in Egyptian society and an ongoing repression of political Islam, which partly comes in the form of continued arrest of Islamists. The controversy over whether women can hold judicial positions and pass judgement in individual cases goes back to often conflicting interpretations of Shari’a (Islamic law), on which part of the Egyptian code is based. “Some Muslim jurists say women can legitimately hold positions as judges,” said Amr Zaki Abdel-Motaal, legal expert and senior managing partner at Cairo-based Abdel- Motaal, Moharram and Hiza Law Firm. “Others, however, say they are forbidden from doing so.” Jurists supporting the inclusion of women in the judiciary cite numerous historical precedents dating back to the early days of Islam. “There is no reason why qualified women should not be able to perform as judges,” al-Gebaly said. For the Muslim Brotherhood, the most powerful religious-based party in Egypt today, the appointment of women to the judiciary is not a right. Imam Abu Hanifa, a seventh century Muslim scholar whose religious teachings the movement follow, forbade women from holding judicial positions, said leading Brotherhood member Essam al-Eryan. “In any case, there are much more urgent priorities facing Egyptian women today than their lack of representation in the judiciary, such as endemic poverty,” al-Eryan added. A right like any other Rights groups have campaigned over recent years to raise the quota of female participation in the judiciary. The main thrust of the campaigns has been the argument that this is the only public domain from which women are by default barred, and that that in itself constitutes gender discrimination against potentially qualified candidates. “The job of a judge is merely to know the law well and to implement it fairly,” said al-Gebaly. “The inclusion of women is a right owed to society as a whole.” The ACIJ has been particularly active in lobbying for greater female participation in the judiciary. “We launched a year-long campaign in January 2006, which includes in its programme a general bid to raise awareness among the public, and a training programme for female law school graduates to prepare them for their potential future as judges,” Amin said. Women’s rights and pro-reform groups were also in part responsible for pushing al-Gebaly’s candidacy. And despite the initial success, it remains unclear whether there will be further steps towards including more women in the judiciary. “I fear that there are no new strategies in place to secure further appointments for women in executive roles in the judiciary,” al-Gebaly said. While about 15,000 of Egypt’s approximately 200,000 lawyers are female, the only judicial body in which women have a substantive role is in the prosecution of the Administrative Court, which deals with cases brought against government employees. The head of this body up until two years ago, according to Abdel-Motaal, was in fact female. In addition, women often teach law and run legal faculties, even in the conservative Al-Azhar University. “Women practice widely as legal attorneys, consultants and professors to future generations of lawyers,” Abdel-Motaal said, adding that their absence from top posts in public courts is “a matter pertaining to the evolution of society.” For all the wrong reasons Despite al-Gebaly’s appointment in 2003, it seems unlikely that women will join the ranks of the normal, civil courts, of which the one with the highest authority is the Court of Cassation. “The appointment of al-Gebaly was significant, but not, in real terms, groundbreaking,” analyst Gamal Essam al-Din said. “Judges in the Constitutional Court do not pass judgement on individual cases, but rather carry out the role of monitoring the proper implementation of the law.” Essam al-Din added that her appointment was likely to have been carried out in a symbolic bid to calm pressure from the West to reform. “The United States in particular often blasts Arab countries for their treatment of women, and in Egypt the state of the judiciary was a particularly salient aspect of this,” he said. However, activists and analysts agree that, without a concerted effort to reform an ageing judiciary system, no improvements on the women’s rights front are likely. “The main problem with the judiciary is its systemically poor organisation,” Abdel-Motaal said. “The Judges Club has been fighting hard for a reorganisation of the judicial system and for a better separation of powers between the state and the judiciary.” The gender issue is merely a reflection of a profound, urgent managerial problem, he added, suggesting that greater judicial independence would by default lead to greater citizen involvement and to the formation of a better, more representative judicial system as a whole.