المنظمة العربية للقانون الدستوري

منبر للخبراء و الباحثيين الدستوريين للخوض في السياسات العامة بالمنطقة العربية

المنظمة العربية للقانون الدستوري

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The Arab Association of Constitutional Law’s Judiciary Working Group has been engaging in a debate on the recent changes to the judicial sector in Egypt.  The substance of that discussion has been summarized and translated below.   The main entries in the debate that are translated below were submitted by Tarek Abdel Aal (Advocate before the Court of Cassation) and by Ahmed Sisi (Counsellor at the Majles al-Dawla, or State Council). 

 

Introduction

On 26 April 2017, the House of Representatives approved through a standing vote, with a two-thirds majority of members, amendments to the Judicial Authority Law, without debating the observations made earlier by the State Council on the bill.  The Parliament’s approval came in a general session, when MPs were suddenly asked to include the bill in the session’s agenda to vote on it, a few hours after the Legislative Committee referred the law to the general session without any prior debate on the observations made earlier by the State Council on the bill. Likewise, MPs did not debate during their session why the Legislative Department of the State Council had rejected the bill on the grounds of unconstitutionality.  The parliament is under no obligation to take into consideration the State Council’s opinion on the issue. 

The law was promulgated the day after, on 27 April 2017.  Law No. 13 of 2017 introduced a number of amendments to provisions in the laws of the judicial bodies (the Administrative Prosecution Authority, the State Lawsuits Authority, the Court of Cassation and the State Council).  The amendments are considered by many to be a flagrant violation and intervention in justice affairs by the executive authority, largely undermining the independence of the judiciary and the separation of powers.  The amendments are viewed by some as a punishment for Judge Dakroury who gave the verdict confirming Egyptian sovereignty over Tiran and Sanafir islands, depriving him of the State Council Chairmanship.

 

 

The amendments

The new law makes the following changes:

  • The law includes amendments to Article 35 of the Administrative Prosecution Authority Law, whereby the President would have the right to choose the next chairman of the Administrative Prosecution Authority from among three nominees, whose names are chosen by the supreme council of the Administrative Prosecution Authority from among its seven most senior deputy chairmen, for a single 4-year term or the time remaining to retirement age.

According to the new law, the President shall be informed of the candidates’ names at least 60 days before the end of the chairman’s term. In the event no candidates are nominated before the end of the aforementioned period, fewer than three are nominated, or the nominated members do not meet the conditions stipulated in the first paragraph, the President appoints the chairman of the Administrative Prosecution Authority from among the seven most senior deputy chairmen.

  • According to the second amendment, which was made to the second paragraph of Article 16 of the State Lawsuits Authority Law, the chairman shall be appointed by the President from among three deputy chairmen, who names are chosen by the supreme council of the AdministrativeProsecution Authority from among its seven most senior deputy chairmen, for a single 4-year term or the time remaining to retirement age. The President shall be informed of the candidates’ names at least 60 days before the end of the chairman’s term.

In the event that no candidates are nominated before the end of the aforementioned period, fewer than three are nominated, or the nominated members do not meet the conditions stipulated in the second paragraph, the President shall appoint the chairman of the Administrative Prosecution Authority from among the seven most senior deputy chairmen.

  • According to the third amendment, which was made to the second paragraph of Article 44 of the AdministrativeProsecution Authority Law, the President of the Court of Cassation shall be appointed by the President from among three deputy chairmen nominated by the Supreme Judiciary Council from among the seven most senior Vice-Presidents of the Court of Cassation, for a single 4-year term or the time remaining to retirement age. The President shall be informed of the candidates’ names at least 60 days before the end of the term of the President of the Court of  In the event that no candidates are nominated before the end of the aforementioned period, fewer than three are nominated, or the nominated members do not meet the conditions stipulated in the second paragraph, the President shall appoint the President of the Court of Cassation from among the seven most senior Vice-Presidents of the Court of Cassation.

 

  • According to the fourth amendment, which was made to the first paragraph of Article 83 of the State Council Law, the chairmanof the State Council shall be appointed by the President from among three deputy chairmen nominated by the general assembly of the State Council from among the seven most senior deputy chairmen of the State Council, for a single 4-year term or the time remaining to retirement age. The President shall be informed of the candidates’ names at least 60 days before the end of the term of the President of the chairman of the State Council. In the event that no candidates are nominated before the end of the aforementioned period, fewer than three are nominated, or the nominated members do not meet the conditions stipulated in the first paragraph, the President shall appoint the chairman of the State Council from among the seven most senior Vice-Presidents of the Republic. According to the fifth amendment, the law shall be published in the Official Gazette and enter into force on the day following its publication, thereby overriding any contradicting provision.

 

The State Council’s opinion

Prior to voting on the law, the House of Representatives referred it to the State Council seeking its advisory opinion under Article 190 of the Egyptian constitution of 2014. In response, the State Council rejected the then draft in its report, which provided as follows:

 “With reference to the Letter of your Excellency No. 273 dated 19 April 2017 on the State Council’s opinion on the draft law proposed by MP Ahmed Hilmi al-Sharif, regarding the amendment of certain provisions of the State Council Law No. 47 of 1972, the Judicial Authority Law, the State Lawsuits Authority Law and the Administrative Prosecution Authority Law. The draft law was unanimously approved by the House of Representatives in its session held on 27 March. With regards to the State Council ruling on the aforementioned draft law, kindly be informed that the draft law was submitted to the State Council in its session held on 22 April. The State Council reviewed the conclusions of its Legislative Department to the effect that the draft law is unconstitutional given the discretionary power granted to the President when it comes to the appointment of the chairman of the State Council from among the seven most senior deputy chairmen of the State Council, thereby subjecting the judicial authority to the executive authority and violating the principles of separation of powers and the independence of the judiciary.”

In its report to the Parliament, the State Council added the following: “The State Council unanimously rejected the proposed draft law based on the conclusions of its Legislative Department, which were presented in order to prevent any repetition.” The State Council had already rejected the draft law in its session held on 16 January 2017 before amending a number of its provisions. The State Council’s General Assembly had also unanimously rejected the draft law in its session held on 3 April 2017, in the presence of around 600 State Council judges, representatives and members.

 

Judicial independence under the 2014 constitution

Egypt’s successive constitutions (particularly the constitutions of 1971 and 2014) did not address the appointment of the heads of judicial bodies in detail, but left the matter to the law. Therefore, the laws of the judicial bodies authorized the general assembly and the supreme council of each judicial body to choose the head of the body according to seniority. The name of the person chosen by the general assembly or the supreme council was sent to the President in order to issue the appointment decision. Thus, a President’s decree to appoint the head of a judicial body was legally considered merely to be declaratory rather than constitutive in nature.

Nevertheless, many commentators consider that the new law is not in conformity with Article 94 of the Constitution, which states the following: “The independence, immunity and impartiality of the judiciary are essential guarantees for the protection of rights and freedoms.”

The law also appears to violate Article 184, which states that the judiciary is independent and interference in judicial affairs or in proceedings is a crime to which no statute of limitations may be applied, as well as Article 185, according to which: “All judicial bodies administer their own affairs and their opinion is consulted on the draft laws governing their affairs.”

The judges confirmed that the amendments were not submitted to the judicial bodies for consideration, in violation of Article 185 of the Constitution, which stipulates that the judicial bodies must be consulted on draft laws governing their affairs. According to the Supreme Constitutional Court, the examination of the formalities of legislative texts precedes the examination of their substantive defects since the formalities are an essential component of legislative texts.

 

The differing constitutional framework

The legal framework regulating the powers of the branches of government under under the 2014 Constitution differed radically from that of the 1971 Constitution. The 2014 Constitution withdrew many powers from the President, thereby restricting his role to head of the executive authority instead of an arbitrator among the branches of government as was the case in the 1971 Constitution. This was clearly stipulated in Article 139 of the 2014 Constitution, which states the following: “The President of the Republic is the head of state and head of the executive authority. He defends the interests of the people, safeguards the independence, territorial integrity and safety of the nation, and abides by the provisions of the Constitution and carries out his responsibilities in the manner prescribed therein.” This contradicts Article 73 of the 1971 Constitution, which states the following: “The Head of State is the President of the Republic. He shall assert the sovereignty of the people, ensure respect for the Constitution and the rule of law, safeguard national unity and social justice and keep the authorities within the limits of their respective powers in order to make sure that each performs its role in the interest of the Nation.” Accordingly, the powers of the President under the 2014 Constitution have been restricted to the governance of the executive authority and this governance is now conditioned on the Parliament’s approval of the appointment (Article 146) and dismissal (Article 147) of the Prime Minister.

Based on the above, the President’s powers can by no means be interpreted more broadly, as the President’s role as an arbitrator and guarantor of the separation of powers was revoked and his role is now subject to the restrictions stipulated by the Constitution. The silence of the constitution drafter towards a certain issue may not be interpreted as granting the President further powers, especially should such powers encroach on those of other branches such as the Parliament or the judicial authority. For example, the President may not intervene in the appointment of the head of the judicial authority in the same way that he may not intervene in the appointment of the Speaker of the House of Representatives (even if this non-authorization is explicitly stipulated by the Constitution in the first case and implicitly stipulated in the second case); the President’s intervention in both cases is deemed an encroachment on the powers of the judicial and legislative authorities, as the President may no longer intervene in the affairs of both authorities whether as an arbitrator or a guarantor. To interpret the Constitution otherwise would gravely undermine the constitutional framework regulating the powers of the branches of government.

 

A conflict of interest

Second, a clear conflict of interests arises from the appointment of the president of the Supreme Judiciary Council by the President, as the president of the Supreme Judiciary Council presides over the special court established to prosecute the President were he to commit crimes stipulated in Article 159 of the Constitution, which states the following: “A charge of violating the provisions of the Constitution, high treason or any other felony against the President of the Republic is to be based on a motion signed by at least a majority of the members of the House of Representatives… The President of the Republic is tried before a special court headed by the president of the Supreme Judicial Council, and with the membership of the most senior deputy of the president of the Supreme Constitutional Court, the most senior deputy of the president of the State Council, and the two most senior presidents of the Court of Appeals…” This issue was not discussed in the House of Representatives nor mentioned in the State Council Legislative Department’s report.  An obvious question imposes itself: is it permissible for someone to appoint their own prosecutor?

Another conflict of interests arises, albeit indirectly, from the appointment of the chairman of the State Council by the President, since the former presides over the Supreme Administrative Court that shall rule on appeals related to the nullification of the President’s decisions and decisions concerning the establishment and dissolution of political parties, which might serve the President’s interests.

“An edited version of this article was published on the Blog of the International Journal of Constitutional Law and is available here”. 

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