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The Egyptian Woman Judge: Setting the Bar for Gender Equality

August 25, 2019

 

“A right is never lost, as long as someone strives to claim it” (author unknown)

 

 

It doesn’t sound rationale to envisage having Egyptian women attending law school, joining the Parliament/Legislative Authority, teaching law, yet are prevented from being judges/sitting on the bench. Becoming a woman judge is a dream of many Egyptian female law graduates. Allowing women to be judges is an essential democratic value of equality, a predictor of the rule of law, and a reflection of the impartiality and independence of the judiciary. Further, it is a step towards equality and full citizenship rights for women, and a fight to prove that women are not second-class citizens or less capable of handling judgeships.

In the recent Global Gender Gap report[1], Egypt ranked 135th  out of  149 countries, a very disappointing, unsatisfactory reflection of its civilization, which does not meet the aspirations of its women after having the first female lawyer in 1933[2] and despite women obtaining their rights in political participation prior to other African, Arab, and even some European countries. Even though about a century has passed, very little has changed in terms of opening up for women’s equal participation in decision-making institutions such as the judiciary.

 

The Case of Women in Egypt’s Judiciary

One of the gender discrimination issues in Egypt is banning women from becoming judges. Female law graduates –including myself- are prevented from applying to judicial positions as their male counterparts despite the fact that women are included in the top 10 graduating students in all Egyptian law schools. This persistent discrimination continues to be the case, despite many international conventions that grant females the right to sit on the bench, inter alia, UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979) and African Charter on Human and People’s Rights (1981). The 2014 Constitution of Egypt is replete with articles that explicitly grant women the right to be appointed in all the Judicial Authorities.  For example, Article 11 stressing the state’s responsibility to “guarantee women’s right of holding public and senior management offices in the State and their appointment in judicial bodies and authorities without discrimination.” Article(53), criminalizes discrimination, stressing the state’s responsibility to “take necessary measures for eliminating all forms of discrimination, and the Law shall regulate creating an anti-discrimination independent commission[3] for this purpose” Article (9), states the right of equal opportunities and equality along with Article (14) that  affirms that appointment in public positions is merit-based .

 

The “Image” Beyond Banning Women From Being Judges

The reasons behind women judges’ absence from sitting on the bar find its roots in male’s perception of women’s roles in the society­–a woman's place is the home, underestimating women’s capabilities, religious misconceptions that Islam prohibits appointing women judges and unfortunately distorted self-perception of some women in a male dominated community. All these factors are at play despite the fact that the highest religious authority published Fatwas that permits having women judges. Surprisingly, the most fervent oppositions were, and are still coming from the judiciary itself, despite no explicit prohibition in the laws governing the judiciary.

Genuinely, law graduates can apply to the State Council – administrative courts – Public Prosecution, Military Prosecution, the Administrative Prosecution (APA) and the Egyptian State Lawsuits Authority (ESLA) [4]. The latter two are the only entities that female law graduates can apply to. 

 

 

The historical prevention of women from becoming judges is reflected in the very low percentage of Egyptian women judges, currently accounting for only 0.5%.  Egyptian women judges are only 66 amongst 16,000 male judges for a population of 104 Million.[5]  These women judges were not appointed by the same process as their male counterparts; rather, they were selected to work in the Ordinary Judiciary only from the already appointed members of APA and ESLA. Such a cesarean appointment is not the normal process for sitting on the bench, since the Public Prosecution is the normal path for the ordinary courts.

 

Even though the Judicial Authority law includes an article which stipulates appointing lawyers who meet certain conditions to be judges, such an article was applied once decades ago and never repeated except for Tahany El-Gebaly’s cesarean appointment, who was the first woman judge appointed in 2003 at the Supreme Constitutional Court. At the time of her appointment, El-Gebaly was a lawyer and never served as a judge throughout her professional career. By then, Egyptian women thought such a top-down appointment would signal an end to the gender exclusion, and considered it the right step towards equality. But in fact, it was not, as the female law graduates kept being rejected whenever they applied to the judiciary till the date. The underrepresentation of Egyptian women on the bench has an impact on how justice is served and gives a hint about the numerous societal, cultural, traditional, religious misconceptions that Egyptian women still have to break.

 

My Experience

In January 2014, I was deprived along with others from applying to the judiciary. I filed two lawsuits claiming women’s rights to be appointed as judges, but woefully, I lost the first case on the grounds that “I am a woman”, and this decision was made in 2017- the “Women’s Year” as declared by the Egyptian President Abdelfattah El-Sisi.

The judgment cited in the reasoning that the grounds of rejecting women’s application were based on the discretionary power of the authority to decide the eligibility of women to occupy such positions and surprisingly negated considering this as a discrimination based on gender. The absence of any valid reasons for rejecting other women’s applications decades ago were more or less the same as in this present law suit. However, the decision admitted the principle of equality between men and women and the announcement for the judicial positions was for male law graduates only.

While the second case was still being reviewed by the Supreme Administrative Court–at the apex of the State Council, I submitted a request to get it transferred to the Supreme Constitutional Court on February 2018. The case has been adjourned many times for long periods until it reached its sixth year so far. Thereby lending credence to the fact that “justice delayed is justice denied”.

 

 

Activism for Women’s Right to Judicial Positions

As part of my activism to change the current situation of banning women from taking judicial positions, I established “Her Honor Setting The Barالمنصة حقها ” Initiative in 2014.This initiative believes in the importance of having women judges sitting on the bar and its impact in promoting judicial legitimacy, transparency, access to justice, human rights and development generally. It also guides and supports fresh female law graduates about the legal steps they shall go through starting from applying, complaining and filing lawsuits, and providing them with the legal documents to be submitted and techniques on advocacy.

 

The initiative campaigns for the case of banning women from the bench to be brought to the attention of Egyptian society and the world at large. Contacting members of parliament led to addressing questions to the Minister of Justice and to the head of the Parliament in addition to submitting a bill in December 2017, which has not yet been issued. The initiative also contacts journalists, so that females’ voices can be heard and their stories can be supported, but in recent times, the press could not get approval to publish the issue as it did previously.

 

The initiative contacts and meets public figures, and sends many complaints to the Egyptian President, the First Lady, the Prime Minister, the Minister of Justice, the Parliament’s President, the Head of the Supreme Council of Judiciary, the Head of the State Council, the Head of the Human Rights Committee in the Parliament, the Head of the National Council of Human Rights and the Head of the National Council of Women “NCW” and UN Women Egypt, all  to no avail.

 

The initiative also builds a strong and wide network nationally and internationally and sends its updates regularly. It also cooperates with most feminist and human rights institutions in Egypt to work together campaigning for the right of women to be judges. As a result, the initiative participated in more than 25 conferences and symposiums in Cairo, Alexandria and Tanta. In the meantime, there is no Egyptian Association of Women Judges. However, the Initiative contacted many of Egyptian women judges and still need and expect support from them, but no one wants to take risks losing their positions by publicly opposing the current practices from the judiciary.

 

Needless to say, that we encountered very strong social and judicial opposition. Recently, the State Council officials refused to register any complaint by the 2017 female law graduates (the complaints are essential to file a case), so we had to send it by mail. Even the police officer at the police station refused to file a police report to prove the refusal of the State Council’s officials to register female’s complaints. Personally, I was deprived the right of defense and degrees of judiciary in my first case. The common dilemma is that the State Council is our judiciary and opponent at the same time, that means we file the cases at the State Council suing the State council!The constant sad fact is that many female applicants refused to proceed in the litigation process for many reasons (family refusal, losing hope and interest, being busy in work, getting married and have kids, being afraid of the consequences of opposing the judiciary and government and losing the potential of getting appointed in prestigious positions at the APA or ESLA –personally I am at the same risk, but I have chosen to keep fighting.

 

Conclusions

Many women around the world are serving in domestic judiciaries[6] and within international courts and tribunals, the numbers are remarkable[7]. Consequently, these developments trigger endless questions regarding the Egyptian women situation. What do Egyptian women lack to sit on the bench? How long will it take for this milestone to be reached? Is our democracy any stronger by excluding women from participating in their country’s development process? How could Egypt envisage achieving sustainable development goals and applying the 2030 roadmap it adopted whilst excluding women from the judiciary till now? How could NCW apply its women empowerment strategy 2017 which includes having 25% women judges by 2030 while women are still prevented from applying?

 

These are legitimate questions under illegitimate practices. Answers are needed, and until those answers are affirmative in granting women their constitutional rights to equality, the battle for women’s access to the bench in Egypt remains an ongoing battle. For Egyptian women, joining the judiciary is not a matter of fighting for prestigious employment with privileges; it is a matter of constitutional rights and human dignity, which are violated by such flagrant discrimination against half of the population. Change must come—#HerHonorSettingTheBar is one such initiative and we hope you will join us in the fight for women’s equal access to the bench in Egypt.

 

 

** Omnia Taher Gadalla is the Founder of " المنصة حقها Her Honor Setting The Bar" Initiative.

 

[1] Gender Gap Report 2018 https://www.weforum.org/reports/the-global-gender-gap-report-2018

 

[2] http://weekly.ahram.org.eg/Archive/2004/672/chrncls.htm

 

[3] Which is not established till date.

 

[4] Both don’t perform judicial functions but considered judicial entities by the constitution. “APA” members investigate the work duty violations, financial and administrative irregularities involving government entities and their personnel and to prepare the disciplinary actions before the State Council. “ESLA” members represent the State before national and international courts and arbitral tribunals as well as pleading on behalf of the State.

 

[5] “Top Judicial Positions Include 16 Egyptian Female Judges”, accessed Nov 24, 2018, https://egyptianstreets.com/2018/08/09/top-judicial-positions-include-16-egyptian-female-judges/

 

[6] Gretchen Bauer and Josephine Dawuni. 2016. Gender and the judiciary in Africa: From obscurity to parity?

 

[7] Josephine Dawuni and Akua Kuenyehia. 2018. International Courts and the African woman judge.

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