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Al-Ahram Weekly 10 - 16 August 2000 Issue No. 494 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 10 - 16 August 2000 Issue No. 494
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Books Travel Living Sports Profile People Time Out Chronicles Cartoons Who's to judge
By Gamal Essam El-Din
Several constitutional law professors are pressing the government to introduce additional measures and guarantees to ensure that the judicial supervision of November's parliamentary elections is complete and effective. "Last month's legislative amendments, made in response to the Constitutional Court's ruling of 8 July are by no means sufficient. We demand additional measures. And without a quick response, integrity will never be the hallmark of the next elections," said Yehia El-Rifaie, a prominent professor of constitutional law and former chairman of the Judges Club.
Expressing the same opinion, Mohamed Selim El-Awwa, another constitutional law professor, commented that "complete judicial supervision over elections is "a guarantee that should be augmented by other guarantees." To drive the point home, these professors along with some of their colleagues published their demands in an open letter to President Hosni Mubarak.
The demands centre around two basic questions: what kind of judges should be empowered to supervise the elections and what should be done to free the judiciary from the hegemony of the Ministry of Justice?
Regarding the first issue, the professors demanded that judges entrusted with monitoring the next elections belong to ordinary courts or the State Council which comprises administrative courts, to the exclusion of other types of courts. El-Rifaie said, "The ordinary courts are the Supreme Constitutional Court, the Appeals Court, the Criminal Court and the Supreme State Security Court. Judges in these courts are entrusted with handing down verdicts in legal disputes and this requires that they be extremely impartial and independent. The same is true of members of the State Council. They are also involved in settling legal disputes and handing down rulings on public legal issues. For this reason, they are also supposed to be impartial and possess integrity."
In the words of Ibrahim Darwish, a Cairo University constitutional law professor, members of ordinary courts and the State Council are the ones who are entitled to be called "judges." "In this context, members of the State Lawsuits Department, the Administrative Prosecution and the Justice Ministry's Judicial Inspection Department can have no claim to the title of judge. In fact, they are government employees. They are employed by the Justice Ministry and do not have the authority to settle legal disputes," Darwish said.
President Hosni Mubarak chairs a meeting of his top aides in Alexandria on Monday to review preparations for the November parliamentary elections
(photo: Borham El-Bagouri)
Ahmed Mekki, deputy chairman of the Court of Cassation, shared the same opinion, but explained that judges of his court will be excluded because "they are empowered by the constitution to decide on the appeals filed against the results of elections. It is not logical that they participate in supervising elections and also in judging electoral appeals," said Mekki.
The law professors argued that while the People's Assembly was debating the legislative amendments last month, high-level officials did not make clear the distinctions among different kinds of judges. "They simply affirmed in general terms that members of the judicial authority will monitor elections," said El-Rifaie.
In the open letter to President Mubarak, Darwish and his colleagues argued that the legislative amendment passed by the People's Assembly on 17 July in response to the Constitutional Court's ruling fell short of this demand. Darwish said, "The amendment states that the judiciary will choose from among its members those to be assigned to supervise primary and auxiliary polling stations. A list of their names will be submitted to the Justice Minister for coordination purposes. This means that the Justice Minister, under the pretext of coordination, will have the power to decide which judges will be chairmen of primary or auxiliary polling stations and even choose the stations which they will supervise. There is also the fear that the supervising judges may be given instructions by the Justice or Interior Ministries. The amendments denied judges any control over the lists of voters and made it the prerogative of the Interior Ministry. All of this is constitutionally unwarranted."
In the words of Atef El-Banna, another Cairo University constitutional law professor, the Constitutional Court's ruling means that elections should be supervised from start to finish by an independent judicial authority. This authority should be composed of judges attached to the Supreme Justice Council, the State Council and the Supreme Constitutional Court. This means that all the resources of the Justice and Interior Ministries would be harnessed to serve the task of this authority. "The legislative amendment goes against this. It leaves the work of the judges subject to the intervention of the Justice and Interior Ministries," Darwish said.
The second demand is closely related to the first. Constitutional law professors, along with a number of judges, argue that for judicial supervision over elections to be successful, the independence of the judiciary has to be affirmed by an amendment of the law that governs its powers. Zakaria Abdel-Aziz, chairman of the Court of Appeals said, "The performance of the judiciary is regulated by the 1972 Judicial Authority Law. This law, in budgetary and regulatory matters, places the judicial authority under the control of the Justice Ministry. In one way or another, this will surely affect judicial supervision of elections. Besides, it goes against the separation of powers. This law should be amended to free the judiciary from the hegemony of the Justice Ministry and provide it with the independence required by the constitution's Articles 65, 165 and 166."
Asked about these demands, Ahmed Abu Zeid, majority leader in the outgoing People's Assembly, told Al-Ahram Weekly that he approved them fully. "These demands are fair and justifiable. I believe that the Ministries of Justice and Interior will do their best to ensure that judges do not face any interference in their work and that supervision of elections will be their main responsibility from beginning to end," Abu Zeid said.
