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Egyptian Islamists and the rule of law

Published in Ahram Online on December 29, 2012

The public prosecutors who protested against the manner in which the president dealt with the prosecutor-general stand in the tradition of a courageous Cairo Police Commissioner of a century and a half ago

The National Archives of Egypt holds a remarkable collection of documents which were produced by 19th-century legal institutions and which attracted the attention of only a handful of historians.

The most significant of these institutions is Maglis al-Ahkam, a legal body that was founded in the early 1840s and which was the highest court in the land until it was abolished in the 1880s. Among the thousands of criminal cases that were adjudicated by this lofty institution is the following case which I found myself re-reading in light of recent developments we have been witnessing over the past few weeks.

The case goes back to 1858. It took place in what was known as al-Haswa desert, and which is now occupied by al-Abbasiya district in north-eastern Cairo. More specifically, the case in question took place in an estate belonging to Ilhami Pasha, who was the grand-nephew of Said pasha, Egypt’s ruler at that time.

When a slave called Sultan disappeared from the estate without permission, the overseer of the estate stables, a man called Omar Bey Wasfy, decided to teach him a lesson upon his return. He ordered him lashed 1,500 lashes, something that led to Sultan’s death.

Despite the many interesting details that the record of this case contains, specifically, the vivid description of what happened to Sultan’s body as a result of the beating, what really attracted my attention when I first read it in the National Archives more than ten years ago was the reaction of Sultan’s fellow slaves to the manner of his death.

Immediately after Sultan’s death, twenty six slaves escaped the estate and marched through the desert heading for Cairo proper, and specifically to the headquarters of the Cairo Police, located in Azbakiya. There, they officially presented a deposition accusing Omar Bey Wasfy of murder. As further evidence of their bravery and their awareness of their rights, they insisted that they would not return back to the estate except if accompanied by the chief forensic coroner who, they demanded, should perform a post-mortem examination on Sultan’s body to ascertain the cause of death.

Equally remarkable was the position of the undertakers of the nearby Demerdash Mosque who refused to go to the estate to bury Sultan as they did not want to help the overseers of the estate in tampering with any forensic evidence.

***

Two days ago I went back to my notes on this intriguing police case. This time I found myself thinking neither of the courageous stand that the slaves took, nor of the principled position that the undertakers took, nor of the honourable position that the forensic doctor took when he stated clearly in his report what he had seen on Sultan’s body.

Rather, what I found most compelling was the pioneering and professional position taken by the Cairo Police Commissioner who investigated the case himself. After he had dispatched two of his assistants to the estate to arrest Omar Bey and to fetch him to the police headquarters for interrogation, and after these two assistants had failed in their mission when the guards at the estate gates prevented them from even entering the estate and effectively told them that the police jurisdiction stopped at the gates, the Cairo Police Commissioner went to the estate himself. After some dramatic carriage chase in the middle of the desert, he managed to arraign Omar Bey and to escort him to the police station.

Despite Omar Bey’s elevated social standing and despite the huge social gap that separated him from his victim who was a mere slave, the Cairo Police Commissioner handled the interrogation with diligence and professionalism. He ended up penning an eloquent report which he submitted to Said Pasha.

I consider this report a landmark in modern Egyptian legal history, for in it the Cairo Police Commissioner urged Said Pasha to inflict the severest penalty on Omar Bey. In one of the strongest sentences in that report, and indeed in anything that I read over twenty years of research in the Egyptian National Archives, the Cairo Police Commissioner said that Omar Bey needs to be punished “for he dared to violate the sanctity of the state.”

***

I consider this case to mark an important turning point in the history of the rule of law in Egypt, for the Cairo Police Commissioner was practically saying that murder cases were indeed a violation of the sovereignty of the state and that they should not go unpunished even if the perpetrator was a bey and the victim a black slave.

Effectively, what the Commissioner was telling Said Pasha was the following, “If you really want to be a governor of a sovereign country whose government has sanctity, then you have to avenge this slain slave, even if this means giving up the protection that a bey working for one of your princes used to enjoy.”

These words had had their effect, for soon Said Pasha issued orders to exile Omar Bey from Egypt altogether, which was the harshest penalty that could be meted out to a member of the Turkish aristocracy.

***

This case came to my mind in light of the serious damage that had been lately inflicted upon the judiciary by President Morsi, the Muslim Brotherhood and the salafists. For the president issued his constitutional declaration that prevented his decrees from any judicial oversight; he turned a blind eye to the serious problems inherent in the way the constituent assembly was formed; he did nothing to lift the siege around the High Constitutional Court; he completely ignored the protest staged by the judges in protest of this siege; and, finally, he dismissed the prosecutor-general and replaced him with another in blatant violation of the independence of the judiciary.

On its part, the Muslim Brotherhood stood firmly behind the president’s decrees which have caused such havoc to the entire legal system. Moreover, on 18 December, they issued a statement ridiculing the public prosecutors and accusing them of “being anti-revolutionaries and standing against the people” because they dared to protest against the manner in which the president dismissed the prosecutor-general.

And as if the positions of both the president and the Brotherhood were not enough, we were stunned by the recent video showing Yasser Borhami, the salafist leader, speaking in a language that leaves no doubt about the low level of esteem with which he views both the law and the constitution. For in that video that recorded a closed session of some salafist leaders discussing the draft constitution, Borhami went out of his way to reassure them that the new constitution seriously curtails basic freedoms and made no secret of the fact that salafists intend to use it to violate the rights of minorities.

***

Confronted with these serious challenges to the rule of law, one can only respect the dignified stance adopted by the prosecutors who protested against the manner in which the president dealt with the prosecutor-general. Theirs was a principled stance, not defending any particular individual; rather, it was a protest against the illegitimate manner with which the prosecutor-general was appointed and, more basically, a protest against the wanton disregard of law, and the serious undermining of the independence of the judiciary.

This position of the prosecutors, like the position of the Cairo Police Commissioner a century and a half ago, will occupy an honourable position in history books, for it is a courageous and honourable position by people who take their professions seriously, and who are willing to go to extreme lengths to defend the integrity and independence of that lofty profession.

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