Sunday,19 May, 2019
Current issue | Issue 1327, (12 - 18 January 2017)
Sunday,19 May, 2019
Issue 1327, (12 - 18 January 2017)

Ahram Weekly

Threats to judicial independence?

A draft law amending the way the heads of the judicial authorities are appointed has stirred heated debate in legal circles, writes Mona El-Nahhas

Threats to judicial independence?
Threats to judicial independence?

During a meeting at the Judges Club in Cairo on 25 December, Egypt’s judges announced their strong opposition to a new draft law that they said would threaten their independence.

“The proposed draft undermines well-established judicial principles and violates the constitution,” said a statement issued following the meeting. Several judicial authorities threatened to take escalatory measures against the proposed legislation as a result.

The law at issue, which amends the way judicial authority heads are appointed, was presented to the House of Representatives last month by Deputy Chairman of the Legislative Committee Ahmed Helmi Al-Sherif and 60 other MPs.

The drafters of the amendments insisted that as the legislative authority the parliament had the right to issue all the laws that regulate the work of the state, adding that they were ready to consult representatives of the four judicial authorities before endorsing the law.

Article 185 of the constitution obliges the parliament to take the opinions of the judicial bodies into account when drafting laws regulating their affairs.

The proposed draft includes amendments to Article 44 of the Judiciary Law, Article 83 of the State Council Law, Article 35 of the Administrative Prosecution Authority Law and Article 16 of the State Litigation Authority law.

House of Representatives Speaker Ali Abdel-Aal referred the proposed draft to the legislative committee for discussion. Following the first hearing on 25 December, the committee decided to send copies of the draft to the judicial bodies concerned in order to hear their opinions.

The proposed amendments replace the principle of seniority in appointing judicial authority heads by different criteria. According to the previous laws regulating the affairs of the judicial bodies, each authority presents the name of its oldest deputy chairman to the president, who then endorses the appointment to chairman.

Under the proposed amendments, the president would have the right to choose the next head of the judicial authorities from three nominees, the names of whom would be given by the authority concerned.

Defending the draft, Al-Sherif said the amendments did not constitute a threat to the independence of the judiciary. “The aim is to guarantee that the most efficient judge and not just the oldest will chair the judicial bodies,” Al-Sherif said.

The explanatory memorandum attached to the proposed law says that relying on the principle of seniority in some cases could result in the appointment of chairmen not capable of doing their job probably because of old age or poor health.

However, the judges have replied that if it is time to replace seniority with efficiency in appointing the heads of the judicial bodies, then this should be the task of the general assembly of each body, rather than the president.

“The president by himself cannot decide on this point unless he relies on security reports as well,” Judge Adel Farghali, a former deputy chairman of the State Council, said.

Farghali warned that the draft law would have serious repercussions if it was endorsed. “First, it will allow the security apparatus to interfere in judicial appointments. Second, some judges will feel pressure to please the executive when making judgements,” he said.

 “The independence of the judiciary means that the choice of the heads of the judicial bodies should be determined by the judges without the least interference from the executive authority.”

Opponents of the draft law argue that it threatens the independence of the judicial authorities, especially the State Council, the body assigned to hear lawsuits filed by citizens contesting executive decrees.

If he is appointed by the head of the executive, the chairman of the State Council may not be neutral when making rulings in such lawsuits, the judges said.

Sources close to judicial circles claim the reason for issuing this draft law now is to ban Judge Yehia Dakrouri from becoming chair of the State Council. Last June, Dakrouri made a ruling saying that Egypt had a historical right to the Tiran and Sanafir Islands.

As the oldest deputy chairman of the State Council, Dakrouri is the sole nominee for the chairman’s seat, due to be vacant next June following the retirement of the council’s current chairman Mohamed Massoud.

Hamed Al-Gamal, a former chairman of the State Council, was quoted as saying that “the draft law constitutes a flagrant violation of the constitution’s principles, which stress the separation of powers. As the draft makes the judiciary subject to the executive, the draft is unconstitutional.”

Nasser Amin, chairman of the Arab Centre for the Independence of the Judiciary and the Legal Profession, an NGO, said the proposed draft was an attack on the independence of the judiciary.

“It will negatively affect the  credibility and neutrality of the judiciary and damage its reputation with the international community,” he said.

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