How the justice system shuts women out

*This article is part of Mada Masr’s series on Gender and Labor

On May 22, the Official Gazette published two presidential decrees appointing judicial clerks to the State Council, Egypt’s judicial body for administrative matters, from graduates of the classes of 2014 and 2015. Among the 335 new appointees, all graduates of public law schools, there was not a single woman.

Since the decrees named only male students, they did not include Nada Gadalla, 26, a graduate of the English-language law program at Ain Shams University Law School. Nada graduated in 2015 with honors before completing a master’s degree in law at the same university in 2017. She has worked as a lawyer since her graduation. But to become a judge in the State Council, she must first serve as a judicial clerk.

“In 2016, I went to submit my application to the State Council,” Nada told Mada Masr — but she was not permitted to apply. “They refused to accept it and they refused to let me file a grievance. They told me those were the orders. But I was determined. I filed a grievance and then submitted it to the president of the State Council, then I went and filed an incident report.”

Nada is interested in administrative law, including investment law, which is the purview of the State Council. Strategically, she also thought a struggle to join the State Council would be easier for society to stomach than a woman investigating murders, for example, although she believes she has a constitutional right to occupy those positions as well. 

Although the Constitution contains multiple provisions extending equal protection for women in public office, the numbers tell a different story: there are just 66 women judges in Egypt, out of more than 12,000. Some of the country’s highest judicial bodies, including the State Council, the Supreme Constitutional Court and the Public Prosecution, have no women judges in their ranks. And no new women judges have been appointed since 2017 — the same year President Abdel Fattah al-Sisi pledged to raise the proportion of women judges to 25 percent by 2030. To meet this goal, Egypt would need to appoint more than 3,000 to the judiciary in the next 10 years — over the objections of the current members of all-male judicial bodies, such as the State Council.

In December 2017, Nada tried again. She submitted grievances with the president’s office, the Cabinet, the justice minister, and the president of the State Council. In order to file a lawsuit, she had to lodge a grievance with the State Council’s Conciliation Committee, which she did on December 11, 2018. It was denied on December 25. Nada then filed additional grievances with all the same bodies again. She says she plans to file a lawsuit against the State Council itself — which would serve as both defendant and judge in the case. 

In December 2019, the Public Prosecution began accepting applications from that year’s law class. Gharam Bassyouni, a 23-year-old law graduate of Zagazig University, traveled from Sharqiya to Cairo on January 9 to apply at the High Court in Downtown.

“There was no other girl in line, except girls submitting applications on behalf of their brothers,” Gharam told Mada Masr. “I stood in line until the employee called my name. When he asked me who I was applying for, I told him myself. He started to shout at me, saying no girls were allowed. I asked him for a rejection letter and he refused and kept shouting. In order to apply, I’m supposed to pay, then he is supposed to take my name and give me my filing papers along with an application and fingerprint form. He sent me to a different clerk, who told me to go see the public prosecutor. I went there and they told me he wasn’t there, and that they were prohibited from telling me when he would arrive. I went to judicial affairs where a clerk tried to convince me it was prohibited. He started telling me how the Constitution, state law, religious law, and sensibility all prohibited appointing women to the judiciary, even though there are many Islamic countries with women judges. The judicial affairs employee refused to give me a disqualification letter because there’s no official decree that prohibits women from applying. I spent three hours going from one clerk to the next. In the end, I hired a lawyer to file grievances with the public prosecutor, justice minister and president. We submitted them several times before they finally accepted them, after the lawyer filed incident reports for refusal to accept. In January, I filed suit with the Administrative Court just trying to make them accept my application.”

Gharam has always been detail oriented, she says, examining things from all possible angles. She wants a job with the Public Prosecution because she believes it would be about finding truth, and getting to the bottom of crimes. “When it comes to problem solving, I’ve always had a little detective inside me,” she says. She always hoped that joining the prosecution would put her in a position to champion the downtrodden. Her teachers made fun of her desire.

“There was one professor who would tell me, ‘How are you going to question suspects when your belly’s out to here?’” she says. “But you know, if my belly’s out to here, there’s this thing called maternity leave.”

Another presidential decree published in the Official Gazette, also on May 22 of this year, appointed 417 prosecutors from among the 2016 law graduates. Again, the decree appointed no female law graduates.

Gharam had hoped that the prosecutor’s office would open up to women by the time she graduated. They didn’t, but when the time came, she applied anyway, with her family’s encouragement. She didn’t want to regret not having at least tried. She has a right to want to work there, Gharam says, because “God put everyone on equal footing.”

Under Article 11 of the Constitution, the state is responsible for guaranteeing “women’s right to occupy public positions and senior state administrative positions, and to be appointed to judicial bodies and agencies without discrimination.” This is consistent with Article 53 of the Constitution, which states, “Citizens are equal before the law and are equal in civil rights, liberties, and duties without discrimination on the basis of religion, faith, sex, origin, ethnicity, color, language, disability, social status, political or geographic affiliation, or any other basis.”

Article 14 states, “Public office is the right of all citizens on the basis of merit without preference or favoritism,” while Article 9 obligates the state “to ensure equal opportunities for all citizens without discrimination.

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Nada’s older sister, Omnia Gadalla, graduated with honors from the Sharia law department at Al-Azhar University in 2013, ranking second in her class. Like her classmates, Omnia applied for a position in the State Council, but when she tried to submit her application, the clerks refused to accept it. They told her, “What are you doing here?” and “You’re blocking the way” and “Don’t waste your time,” Omnia told Mada Masr.

To claim her right to be considered on equal ground to her male peers, Omnia filed suit in 2014 with the Administrative Court, which is part of the State Council, against the bylaws of the State Council itself. She contested the refusal to accept her application for a position. The court referred the case to the Supreme Administrative Court, which ruled against her in April 2017, on the grounds that the State Council is not required to appoint women.

This was the same year that President Sisi had designated “Year of the Woman.” On Mother’s Day of that year, Sisi inaugurated the celebration in a speech addressed to Egyptian women: “To the mother, the wife, the sister, and the daughter who gave the son, the husband, the brother, and the martyr so that we, and our nation, might endure always and forever.” In the same speech, he announced the Strategy for Women’s Empowerment 2030, a document that laid out a plan for the efforts of government and official institutions in the coming years.

Before the judgment in Omnia’s suit in September 2015, Sisi issued a decree appointing 243 male graduates of the class of 2013 — Omnia’s classmates — as judicial clerks to the State Council. Although he had signed off on the appointment of 26 female judges from the Administrative Prosecution and the State Cases Authority to first-instance courts that same year, this appointment decree included no female graduates from that year. 

Twice, Omnia filed suit against the 2015 decree with the Administrative Court, asking that it be referred to the Supreme Constitutional Court (SCC), to avoid the State Council acting as both party and judge to the suit. Both requests were denied. In August 2019, Omnia again filed grievances with the president and justice minister.

In June of this year, the State Commissioners’ Body, an advisory body within the State Council, issued a report recommending that the plaintiff in a case currently before the court — Omina’s suit contesting Presidential Decree 356/2015 — lacked standing, reasoning that the State Council may decide whether to appoint women at its discretion. Omnia saw the ruling as “putting the court’s discretionary authority above the Constitution” and therefore in violation of the Constitution, law, and international conventions.

In a section on political empowerment and leadership roles for women, the 70-page Strategy for Women’s Empowerment, available on the National Council for Women’s website, states that no women served as judges until 2003, and that the total number of women judges peaked at 80, noting that no women serve as judges in the State Council or Public Prosecution. Currently, there are 66 women serving as judges, or about 0.5 percent of all judges, a number the national strategy aims to increase to 25 percent by 2030.

But in a 2019 working paper on women in judicial positions, the Center for Egyptian Women’s Legal Assistance questioned how the Strategy for Women’s Empowerment announced by Sisi could be implemented: How could women’s representation in the judiciary increase from 0.5 percent to 25 percent in a decade? Sherif Gamal, the executive director of participation programs at the center, told Mada Masr that to reach this target, judicial institutions would need to appoint nearly 4,000 women to judgeships. Gamal added that since 2017, not one woman has been made a judge.

***

Officially, justice ministers have long welcomed equality between men and women in leadership positions. In 2015, after several women judges from the Administrative Prosecution Authority and the State Cases Authority were appointed to serve in courts, Justice Minister Ahmed al-Zind announced “A female judge is exactly like a male judge, and there should be no discrimination between them. Women judges must be given the right to work and the right of equality with men judges in all specialties.”

Statements from the current justice minister strike a similar note. In 2017, during a celebration with 66 female judges to mark 10 years since women entered the judiciary, Hossam Abd al-Rahim said that he was looking forward to appointing the fourth group of women judges. But speaking about the State Council last year, he said that his ministry has no authority over judicial bodies and that the State Council bylaws do not permit the appointment of female judges.

Under Article 186 of the State Council bylaws, the council is bound by the decisions of the general assembly of its members. Its refusal to appoint women to its ranks rests on a general assembly decision first issued in February 2010 and reaffirmed in March that same year by 318 of the 319 judges who attended the general assembly meeting.

It was expected that three new laws on the judiciary would be issued in keeping with the constitutional amendments of April 2019. In June Parliament did discuss and approve two laws related to the selection of the heads of judicial bodies and agencies, but the third law, which would establish the Supreme Council of Judicial Bodies, was stalled, according to a previous report by Mada Masr. Under the bill, the council would be headed by the president and would include the heads of other judicial bodies (the SCC, the Court of Cassation, the State Council, and the military judiciary) and judicial agencies (the Administrative Prosecution and the State Cases Authority), as well as the public prosecutor and the president of the Cairo Appellate Court. The council would determine conditions for appointment in the ordinary courts, the State Council, the Administrative Prosecution and the State Cases Authority and would set the rules for secondment and promotions in each judicial body. It would also issue opinions on draft laws related to the judiciary.

Gamal says that the penal code prescribes penalties for public servants who discriminate against women, but “women are afraid to lodge a complaint about the president of the State Council, and if they do complain, there’s no judge who would suspend his immunity and let himself be prosecuted.”

Prominent judges on the State Council have long publicly opposed the appointment of women to judicial positions, including some who are thought to be more independently minded judges, such as Yehya al-Dakroury. In 2010, when Dakroury assumed the presidency of the State Council Judges Club, he said “A woman working as a judge would mean she would have to be behind closed doors with two or more male judges during deliberations. This is the kind of seclusion prohibited by Islamic law, which under Article 2 of the Constitution is the principal source of legislation.”

Describing the State Council’s responses to the issue of women judges, Gamal says, “Since the 1940s, they’ve been saying it’s because the State Council isn’t equipped, or because of custom and tradition.” But a high-level judicial source in the State Council told Mada Masr that although he could not comment on a pending case, the State Council is not the only judicial body that does not appoint women. “There’s a misconception,” the source said. “The military judiciary, the Public Prosecution — none have women, and there are no women on the Supreme Constitutional Court since Tehani al-Gebali’s resignation.”

The judicial source says that while the refusal to appoint women to the State Council is based on the general assembly resolution of 2010, “The resolution did not reject the appointment of women. It was a resolution to postpone these appointments because they require certain administrative, financial and other preparations.” The source concluded, “Now it’s a simple matter regardless of the history of the issue. The Supreme Council of Judicial Bodies will settle it. Under the draft law, the council will set the rules for appointment to judicial bodies, and its decisions are binding. If it says to appoint women and men, we’ll all abide by its decision.”

Addressing the opinion that Islamic law prohibits female judges, the source said, “If we treat a judicial post as a job, then no, there is no prohibition. But if we treat it as a kind of guardianship under Islamic law, then it’s another matter, one to be decided by those specialized in Sharia. But I don’t think Dar al-Ifta has prohibited the appointment of women as judges.”

In 2002, Sheikh al-Azhar Mohammed Sayyed Tantawi, Chief Mufti Ahmed al-Tayyeb, and Endowments Minister Mahmoud Hamdi Zazouq issued a fatwa in response to then-Culture Minister Farouq Hosni stating, “There is no explicit, unequivocal text in the Quran or the Sunna that prohibits women from assuming the position of judge.”

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In 2014, Omnia launched a campaign, Her Honor Setting the Bar, to support female law graduates pursuing legal and judicial avenues to win their legitimate right to occupy the bench, striving for an equal-opportunity society for all individuals without discrimination. The campaign also tries to change a culture that works to empower women slowly or not at all. The campaign sees women’s empowerment as a constitutional and human entitlement: “It believes in the importance of elevating women to the bench and the significant degree to which this will be reflected in judicial institutions specifically and in society and development more generally. It believes this is important to strengthen the rule of law and cement judicial neutrality, independence, and the judiciary’s commitment to the text of the Constitution and law, which its members swore to respect and uphold above all else.”

During the campaign, Omnia contacted members of Parliament in order to make the necessary changes to legislation. This resulted in a draft law on the appointment of women judges sponsored by MP Nadia Henry. The bill has not yet been debated, though it was referred to the assembly’s constitutional and legislative committee in January 2018. Omnia also reached out to several feminist and rights organizations, but found that “many had been closed down,” and she tried to spotlight influential female judges around the world. She contacted officials and discussed the issue at local and international conferences, along with her younger sister Nada.

Omnia received international recognition for her efforts. “I was nominated in 2019 for the Future Leader prize from the French Foreign Ministry and was invited to attend activities with the Judicial Integrity Network, which came out of the UN,” she says. But her own lawsuit remained before the courts for seven years.

During the campaign, Omnia also reached out to the NCW, “which never cooperated with the campaign,” she says.

Gamal says that the NCW supported neither Omnia’s case nor MP Henry’s bill, even though Egypt has a responsibility to the UN Economic and Social Council, which recommended, among other things, that the country increase the representation of women in the judiciary.

The council did publish a post on its Facebook page featuring Omnia in July, introducing her and the campaign. But it remains unclear what the council is doing to support women’s access to employment within the judiciary. Mada Masr contacted the NCW via email to inquire about the institution’s role in supporting Omnia and other female law graduates and improving women’s representation in the judiciary more generally, but received no response.

To mark International Women’s Day this past March, the Law and Society Research Unit at the American University in Cairo organized a panel discussion to highlight women’s representation in the judiciary. The discussion featured Judge Tehani al-Gebali, the first woman appointed to a judgeship in Egypt’s modern history — she served on the SCC from her appointment in 2003 until her departure in 2013—as well as Judge Mohammed Samir, the vice president of the Administrative Prosecution Authority.

Gebali pointed out the first female judge in Egypt and human history was Maat, considered the goddess of justice in ancient Egypt. She was followed in the Roman period by the Palestinian judge Deborah. In 1952, Aisha Rateb became the first Egyptian woman to file a lawsuit to win women’s right to serve as judges. At the time of Rateb’s lawsuit, Gebali said, “The Egyptian judiciary said that the principle of fitness had not been met. They didn’t say that it was forbidden by law or Sharia because since the establishment of the Egyptian judiciary, the law has never specified the gender of judges, male or female. Instead it refers to social suitability, which is an expansive term that can sometimes act as an obstacle to progress.”

 Samir explained that women make up 28 percent of personnel in the State Cases Authority and 43 percent in the administrative prosecution, and that several women judges had served as the president of the Administrative Prosecution Authority. Nevertheless, women constitute only 0.5 percent of judges serving on the bench.

“Fifteen years since we’ve been on the bench, after the reality of women judges and the acceptance of the Egyptian people, it’s disgraceful to still speak about whether the right exists, to go back to saying, well, there’s a jurist who says no, or women can’t properly judge, they’re too emotional,” Gebali said. “That kind of talk is obsolete. Article 11 of the present Constitution resolved the matter, and the constitutional obligation is binding for authorities and individuals. Women have the right to be in every judicial institution. It’s still a source of pain that there are no Egyptian women in the Public Prosecution of the State Council even now. I don’t think there’s any room to talk about fitness. That concern was made obsolete by my appointment and the appointment of women after me.”

Samir added, “To come here today, in 2020, and sit here and talk about how women have equal right to public positions — this is extremely disheartening. We want to reclaim for women what they had before the whole world. Egyptian women were judges, and people are still talking about whether it will work or not.” 

Omnia summed up the inequitable situation: “Any male law graduate has the right to apply for a position in the State Council, the State Cases Authority, the Administrative Prosecution Authority, the Public Prosecution, and the Military Prosecution, as an entry path to the ordinary and military courts. They let women work in judicial professions that do not issue rulings, like the State Cases Authority and the Administrative Prosecution Authority, but they are not permitted to work in the State Council or the Public Prosecution. In other words, they let women study law, teach law, pass laws in Parliament, but they aren’t allowed to apply the law? It’s a huge contradiction.” 

At the panel discussion, Gebali urged the president, as the arbiter among authorities, to comply with the constitutional text: “I asked and continue to ask that he not sign any appointments to the Public Prosecution or the State Council when our top-ranked women  still get no response to their wish to join the Public Prosecution and State Council. I want merit to be the sole standard for appointment to the judiciary.” 

Omnia adds that the issue “requires presidential intervention. Tehani al-Gebali was appointed because of a UN report that severely embarrassed Egypt.” 

*** 

Omnia has taught at the university since her graduation seven years ago, but she has still not completed her doctoral thesis because of the time she has devoted to her campaign and legal action. “Seven years of grinding away. People younger than me have already gotten their doctorates,” she says.

“How can I teach girls the law, the application of the law, and citizenship, how can I talk about effort and competence, and then have the female students turn around and say, ‘You were the first in your class and you weren’t appointed to the judiciary.’” 

Omnia now wants to file a brief arguing that the refusal to accept the case in the Supreme Constitutional Court is unconstitutional. “If the SCC rules it is unconstitutional to deny women appointments, the ruling will be binding on all individuals and agencies because it’s the highest court in Egypt,” she says. “That ruling would be an affirmation or enactment of the constitutional provisions guaranteeing women’s appointment to judicial positions.”

On May 30, the court denied Gharam’s suit on the grounds that it does not have jurisdiction and referred the case from the State Council to the Cairo Appellate Court, which has not yet set a date for the hearing.

 “I’ll keep going, even if it takes years,” Gharam says. “I’ll go to the SCC because of the unconstitutionality of the ban. Thank God my family supports me, but some people criticized me when I wrote a post about it on social media. They said things like, ‘So if you do this, will we be the ones sitting at home and raising the kids?’”

As for Nada, she says, “I simply cannot accept that we have a Constitution that explicitly permits the appointment of women to the judiciary and has provisions against discrimination and yet I can’t be appointed.”

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