Prospects and Obstacles of Strategic Human Rights Litigation Globally: A Spotlight on Egypt – Harvard Law School

At a current dialogue hosted by the Program on legislation and Society within the Muslim World and the Human Rights Program at Harvard Legislation Faculty, Nader Andrawos, Egyptian authorized historian and Residential Fellow on the HLS Institute for World Legislation and Coverage, dove into the expertise of human rights litigation in Egyptian courts, illuminating the discourses that legal professionals make use of to vindicate human rights inside a extremely circumscribed and unstable political context.

The dialog, moderated by Omar Abdel-Ghaffar, JD ’25, started by contemplating the structural traits of Egypt’s authorized system. From an American perspective, Egypt’s inquisitorial, civil legislation system presents distinctive obstacles to human rights litigation. Whereas human rights norms within the U.S. adversarial system develop in courtroom clashes towards the state, an inquisitorial system, the place judges become involved in investigating the details, includes the state in producing civil rights. But Andrawos notes that Egypt’s system could also be extra advanced than this distinction suggests. Below the Conseil d’État system modelled on French courts, Egypt’s administrative courts present a platform the place the events and the judiciary contest, query, and negotiate “the boundaries of state-ness and statehood.”

The indeterminacies and contradictions inside Egypt’s human rights ecosystem additionally come to the fore when arguments from worldwide legislation become involved. Article 93 of the Egyptian Structure enshrines a dedication to worldwide agreements. However as Andrawos emphasizes, worldwide norms are inflected by an area lens, so they’re not often decisive in adjudicating circumstances. For Andrawos, efforts to deploy worldwide authorized argumentation are helpful exactly as a result of the Egyptian system fails to translate them to the native context. Such failures assist legal professionals by illuminating deficiencies throughout the system.

Such a system emanates from Egypt’s constitutional custom starting with the nation’s 1923 structure, which Andrawos emphasizes nonetheless exerts affect on modern discourse, regardless of not being legally in impact. Though constitutional suspensions and rewritings punctuate Egyptian historical past, (the latest type being the 2014 structure), Egypt however retains a constitutional “reminiscence” relationship again to this early interval, a reminiscence that idealizes a liberal democratic constitutional order. Andrawos nonetheless refrains from characterizing the Egyptian expertise as “constitutionalism” given the prevalence of intolerant parts similar to army courts and emergency legal guidelines.

This constitutional reminiscence drives a proceduralist strategy to human rights litigation. Although utilizing numerous methods and towards differing ends, Egyptian human rights legal professionals converge upon proceduralist values such because the rule of legislation. For instance, in torture litigation, claims often handle the procedural constancy of sufferer testimony or the worth of confessions obtained by torture. Such a deep religion in process and rule of legislation could strike some as weird given Egypt’s fractured political context, the place energy usually prevails over common rules.

To Andrawos, such proceduralist invocations can have a number of explanations. Maybe they’re a bid by legal professionals to maintain their very own relevance and legitimacy. In response to an viewers query on how legal professionals relate to political actions, Andrawos factors to their intuition towards the development of secure identities and socialization. Though the choice to observe legislation can embody a lawyer’s particular person political commitments (secularism, socialism, Islamism, and so on.), once they seem earlier than the state they have interaction in a shared “vocational efficiency” by portraying themselves as upholders of a protracted constitutional custom. Harkening again to the historic position of legal professionals, notably by organizations such because the Legal professionals Syndicate, in crafting this custom      helps legitimize their advocacy earlier than the courts. These proceduralist appeals may also overcome ideological divides—at the same time as leftists and Islamists disagree on substantive outcomes, they might however agree that an efficient course of is required to reach at these outcomes.

Much less cynically, maybe legal professionals see the “rule of legislation” as inherently fascinating no matter political context. Though authorized academia would resist the equation of “rule of legislation” with justice, the phrase however is a handy, colloquial shorthand for what non-lawyers grasp as “justice.” Certainly, within the post-revolution context succeeding the Arab Spring, proceduralism has an aspirational dimension, alluding to “a future that’s but to come back.”

But political realities usually frustrate these aspirations. Andrawos notes how, whereas judges could sympathize with the legal professionals’ ethical campaign, courts are anxious to protect their good points and subsequently keep away from extreme confrontation with the chief department. One instance is how litigation towards the Emergency Legal guidelines, which droop civil rights for safety functions and punt disputes to an opaque emergency court docket system, has failed as a result of judges are cognizant of their precarious place vis-à-vis different branches of the state.

Proceduralism is only one means by which the aversion to substantive norms manifests in human rights litigation. Andrawos refers to a current case that contested the Egyptian authorities’s choice to switch sovereignty over two islands on the Purple Sea (Sanafir and Tiran) to Saudi Arabia. Whereas activists mobilized within the streets round a discourse of human rights, the precise litigation boiled all the way down to extremely technical language about maps and cartography, regardless of being spearheaded by a distinguished human rights lawyer. Andrawos makes use of this instance to indicate how even leftist legal professionals are drawn to technical authorized methods somewhat than those who invoke substantive human rights norms—and the place substantive norms are mentioned in judgments, they often revolve round top-down conceptions of sovereignty and honor.

The dialogue subsequently illustrated the extremely circumscribed nature of human rights lawyering in Egypt. On condition that the boundaries of statehood and judicial authority are undetermined, human rights legal professionals deploy proceduralism as a typical discourse to maintain their very own legitimacy, discover frequent floor, and in the end search stability in a fluctuating judicial ecosystem.

Written by Ariq Hatibie, JD ’24.