Egyptian MP Nadia Henry submitted on February 7 a draft law to the House of Representatives demanding gender equality in judicial positions. The proposal, which was referred by the parliament speaker to the Legislative and Constitutional Affairs Committee, states that all judiciary entities should be committed to appointing women in accordance with the same criteria based on which men are selected and that any laws to the contrary are to be revoked.
The draft law cites articles 9, 11, and 53, all of which stress equality between Egyptian citizens and article 14, which states that appointment in public positions is merit-based. She also refers to the law regulating appointments in the State Council, the judicial entity most known for its adamant objection to the appointment of women in addition to the General Prosecution Authority, and noted that nothing in this law justifies the council’s stance. Henry’s draft law reignited a debate that has hardly subsided over years as women seem more determined to defy what they see as a flagrant infringement upon their rights.
Omnia Gadallah case
Henry’s initiative was to a great extent driven by the case of Omnia Gadallah, a female lawyer whose application for the position of assistant delegate—and eventually judge—at the State Council was rejected despite meeting all the requirements. Gadallah’s appeal against the council’s decision was rejected by the Commissioners Authority of the Supreme Administrative Court in November 2017. The authority’s report denied Gadallah’s claim that the council’s rejection of her application is an act of discrimination and argued 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.”
The report also underlined the difference between constitutional rights in daily life and the specificity of particular jobs in which the nature of the work and the working environment needs to be taken into consideration. More than 120 rights organizations and public figures declared solidarity with Gadallah and issued a statement that accused the entire judiciary system, not only the State Council, of discriminating against women.
“Even though Egyptian women were ahead of their counterparts in Arab and even some European countries as far as political rights are concerned, this does not apply to the judiciary,” said the statement. “Out of a total of 16,000 judges only 66 are women.”
Professor of political science Nevine Mosaad noted that Egyptian women’s battle for the judiciary has been ongoing for 70 years, particularly since 1949 when then lawyer later professor of international law, first Egyptian female ambassador, and minister of social affairs Aisha Rateb applied for the position of assistant delegate at the State Council and was rejected. “A ruling was issued in 1953 to the effect that there are no legal, constitutional, or religious rules that hinder women’s work in the judiciary, but rather social considerations and factors pertaining to the job itself,” she wrote.
Fighting for rights
“Ever since, women have been fighting for their right to work in the judiciary.” Mosaad admits that progress has been made starting 2003 with the appointment of Tahani al-Geblai as vice president of the Supreme Constitutional Court, hence becoming the first Egyptian woman to occupy a judicial position, then in 2007 and 2008 as a number of women started working in civil, criminal, and family courts. “Yet, the State Council remained a restricted area for women even after adding article 11 in the 2014 constitution and which gives women the right to work in judiciary entities.” According to Mosaad, the constitution is in many cases being dealt with selectively so that articles that are not in line with long established norms are ignored. “What is also ignored is the contribution of women to the judiciary in different Arab countries starting with Morocco in 1961 through Lebanon, Sudan, Libya, Jordan, Oman, the UAE and most recently Mauritania in 2014.”
Mosaad scoffed at claims that female judges in the Arab world have proven a failure and cited the example of Lebanese judge Jocelyne Matta who sentenced three Muslim men charged with insulting Virgin Mary to memorizing a chapter from the Quran that glorifies the Virgin and Jesus. “This is a unique verdict that unravels the judge’s wisdom and it was praised by people and authorities alike.”
Incapability to perform
Judge Adel Farghali, former deputy director of the State Council, argued that while many women are qualified to become judges and have all the right to, the nature of their responsibilities would render them incapable of performing efficiently. “In order for a verdict to be issued, judges have to be present throughout hearing sessions, deliberations, and the ruling, but the developments in a woman’s life might not make this possible,” he said. “She will get married and have kids so she will be on leave for some time more than once, which means that another panel has to be formed and the cases she was on will be started from the beginning.”
Farghali added that a female judge can also decide to don a face veil, which will be a major obstacle. “Plaintiffs and defendants have the right to know the identity of the judges in charge of their lawsuits to ensure fairness and due process, hence the entire case becomes invalidated if the judge covers her face.” Another obstacle, Farghali said, would be if the judge is conservative and would not agree to be in a closed room with her fellow male judges during deliberations. “Even if she’s not conservative at the beginning, this can happen after she gets married.”
Journalist Mohamed Roshdi quoted a source from the State Council as saying that despite article 11 that allows women to occupy all position, the council has its own law that does not allow this. “In its last emergency meeting, the State Council General Assembly voted against the appointment of women,” the source said.
The source added that the assembly, which is comprised of all the council judges, is the highest body within the council and the only one capable of changing this decision and until then no women can be appointed. “It is also noteworthy that any article in the constitution requires a law that puts it into actionand there no is law that binds the State Council as far as appointing women is concerned.”