Mohamed Morsi, as depicted by a graffiti artist. thierry ehrmann under a Creative Commons Licence

On 16 May, a Cairo court found over 100 defendants – including former president Mohamed Morsi – guilty of a mass prison break in 2011.

The judge presiding over the case recommended death penalties for each of the defendants, and is referring them to the Grand Mufti, the highest religious authority in the country. While the court is obliged to refer all death penalty cases, the Mufti’s decision is not legally binding. The judge can still hand down the sentence he sees fit. The final verdict is set for 2 June.

Morsi, who led Egypt for little over a year for the Muslim Brotherhood before being ousted by the military in July 2013, is currently facing four other trials. In late April he was found guilty of involvement in the 2012 killing of protesters outside the Presidential palace, and charged with 20 years’ imprisonment.

Meanwhile, in November 2014, former president Hosni Mubarak – whose refusal to step down as leader sparked the 2011 Egyptian uprising – was cleared of conspiring to kill hundreds of protesters in Tahrir Square.

The Brotherhood vs the judiciary

Hostility between the Muslim Brotherhood and the Egyptian judiciary runs deep. In June 2012, the courts dissolved the Islamist-dominated parliament.

Morsi later proposed reforms to the judiciary that would reduce the retirement age from 70 to 60 years old, in an effort to purge it of Mubarak appointees and loyalists.

‘This would have removed 25-30 per cent of the judges, including the most senior judges,’ explains Sahar Aziz, an associate professor at the Texas A&M University School of Law, ‘so the judges took this as a direct threat.’

Morsi planned to replace the forced retirees with practising lawyers, rather than the customary hiring of new judges fresh out of law school. ‘This caused further suspicion that the former president was trying to stack the judiciary with lawyers he knew would be loyal to his government, just as Mubarak had,’ Aziz adds.

In November 2012, Morsi announced a presidential decree granting himself extensive powers, and made himself immune from external review by alternative authorities.

The decree prevented the courts from challenging any law or decree Morsi would pass. This reinforced the judiciary’s mistrust of the then-president and exacerbated the already gaping rift between the judges and the Muslim Brotherhood.

Following the military-led ousting of Morsi, there was a massive crackdown on his supporters and the Muslim Brotherhood.

Nearly a thousand of Morsi’s supporters were killed during demonstrations in Raba’a and media channels associated with the Brotherhood were shut down.

The regime declared it was fighting a ‘war against terrorists’, and began targeting opposition at large, with the Brotherhood as its bullseye. In December 2013, the Muslim Brotherhood was banned and declared a terrorist organization by the Cairo Administrative Court.

Following a series of trials in 2014, the courts issued mass death sentences to hundreds of defendants, the majority of whom were members of the Islamist group.

‘The judiciary has been sending a clear message that they are angry with Morsi and the Muslim Brotherhood. They are seeking revenge,’ says Aziz.

The politicization of the judiciary

Alongside obvious contempt for the Brotherhood, the courts have also showed their alignment with the new regime’s commitment to quash dissent and scale back civil liberties. They have upheld charges in relation to the terrorism law and the protest law, charging Islamists and liberal activists alike.

The April 6 Movement, a youth-led activist group, and the Ultras, a soccer fan group, who were both at the forefront of the 2011 demonstrations, have been banned. The Ultras have been given the added distinction of being deemed a ‘terrorist organization’ by the Cairo Court for Urgent Matters – on the same day as Morsi’s trial.

While the judiciary does have a certain degree of autonomy from the executive branch, it is steadfast in its support for the Egyptian state itself, and in guarding its laws and social order.

However, ‘the legislation itself is flawed,’ says Aziz. According to Nathan Brown, a senior associate at the Carnegie Endowment for International Peace, this is because ‘the laws are vaguely written and allow judges and the public prosecution enormous discretion’.

The recent verdicts issued by the courts signal their continued support for Egypt’s security state and authoritarian laws. ‘A vast amount of normal political activity in Egypt is potentially illegal. And the judiciary seems fairly deferential to the security apparatus as well as defensive of its own interests, which are tied to the state itself,’ adds Brown.

While this isn’t necessarily a case of ‘telephone justice’ – direct instructions coming from the executive to judges – the chief prosecutor, the head of the Court of Cassation (the exclusive body atop Egypt’s judicial hierarchy), and the head of the appeals court are all appointed positions. Moreover, the executive has been known to give out incentives for co-operation, and penalties for those who oppose their wishes. According to Aziz, there is pressure on judges, knowing that they could be denied secondments or that their sons and relatives (in institutions where nepotism runs high) will suffer for their present actions.

Is this justice?

The highly polarized political climate has kept Egyptians divided on Morsi’s verdict and the integrity of both the government and the judicial system. For some, Morsi and the Brotherhood brought Egypt to ruin, and their sentences are deserved.

‘This trial is justice. The country is in this situation because of the Brotherhood. So it’s fair that Morsi pays for what they did. They killed protesters, they took money from abroad – they were selling the country,’ says Moattam, a carpenter from central Cairo.

Ahmed Samir agrees that Morsi deserves the death penalty and adds that the verdicts on the two deposed presidents were legitimate and fair. ‘The difference between Mubarak and Morsi is that Mubarak ruled for 30 years and didn’t make many problems. Morsi ruled for one year and created a mess – he gave information to Egypt’s enemies,’ he claims.

Others, however, see the courts’ decisions as biased, and in favour of rejuvenating the old regime.

‘Mubarak took lots of money, he killed protesters that were calling him out on his corruption. And yet, he is still here. Morsi had a lot of problems, but these were amassed on top of the country’s previous problems, so he is the one that became the scapegoat,’ says Mohamed, a tailor from Cairo.

‘Morsi did bad things, but he doesn’t deserve the death penalty.’

More worryingly, Mohamed sees Morsi’s trial as a symbol of the judiciary reinforcing the state’s larger push to extinguish any opposition.

‘Anyone here could be taken and thrown into jail, and have the same fate as Morsi. Where is the justice in that?’ Mohamed asks.

Similarly, Abdel-Rahmn, a student, comments: ‘The state says it is protecting the country, the Brotherhood is the enemy, and anyone else who has other ideas is a terrorist.’ While the trials over the past two years highlight the continued politicization of the judiciary, they also raise the question of where justice now stands in the country.

‘People have confidence in justice when there is justice, but now there is none. We are right back where we were five years ago,’ says Alaa, a shop owner. ‘There is no justice.’

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