Tuesday,23 April, 2019
Current issue | Issue 1331, (9 - 15 February 2017)
Tuesday,23 April, 2019
Issue 1331, (9 - 15 February 2017)

Ahram Weekly

Future undetermined

what the chances are of a draft law by judicial bodies being endorsed after judges strongly objected

On 31 January the State Council submitted an official letter to parliament rejecting a would-be draft law amending the way in which heads of judicial bodies are appointed.

The State Council, one of the four judicial bodies addressed in the draft, stressed that the suggested amendments threaten the independence of judicial authorities and violate the State Council law and its executive statutes.

The State Council’s reply came in the wake of extensive meetings held by its special council, the highest administrative body and which includes veteran judges.

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 and Article 16 of the State Litigation Authority. The amendments replace the principle of seniority in appointing heads of judicial authorities using completely different criteria.

According to the law, each judicial authority usually presents the name of its oldest deputy chairman to the head of state who normally endorses his appointment to the chair. Under the proposed amendments, the president would be given the right to choose the future head of the judicial authority from three nominees whose names are defined by the judicial authority.

The draft law at issue was presented to parliament by Deputy Chairman of the Parliament Legislative Committee Ahmed Helmi Al-Sherif and 60 other MPs. Drafters of the legislation said the aim of their draft is to guarantee that the most efficient judge — not just the oldest — would take the chair of the judicial body.

In December last year, parliament sent copies of the draft law to the concerned judicial bodies to ascertain their opinion before starting deliberations. Article 185 of the constitution obliges parliament to consult judicial bodies about legislation regulating their affairs.

The State Council was the first to declare its position. The Supreme Judiciary Council (SJC) said it had not yet received any copies of the draft and so did not give its opinion. Adel Al-Shorbagi, an SJC member, said the council will study the proposed amendments and send its official reply to parliament once it received them. The Administrative Prosecution Authority said it received a copy of the draft last week and was due to hold a meeting within the next few days to discuss it before officially informing parliament of its position. The State Litigation Authority said the draft is still subject to study.

Although three judicial bodies have not yet submitted their official reply, they previously announced their rejection of the draft. The heads of the four judicial bodies of the judges clubs issued a joint statement in December stressing their opposition to the executive authority and attempts to interfere in their affairs. Several judicial authorities threatened to take a series of escalatory measures against what they called an unconstitutional legislation. The clubs held meetings and issued statements opposing any draft that would “undermine well-established judicial principles and violate the constitution”.

Of all the judicial bodies, the State Council opinion appears the most decisive, legal experts argue. The State Council’s rejection of the draft may hinder its endorsement even if parliament approves the amendments. The State Council is the judicial body assigned with reviewing legislation approved by parliament.

Judge Adel Farghali, former deputy chairman of the State Council, views the chances of endorsing the draft as “very remote”. “If parliament insists on its discussion in clear defiance of the opinions of judicial bodies, the draft will not be passed,” Farghali said.

According to Farghali, as is the case with all legislation, parliament is obliged to refer the draft to the State Council for review. “The State Council in turn will present it to its legislation department to review the formulation of the articles and rule on their constitutionality,” Farghali said. The proposed draft, judges argue, violates the constitutional principle which stresses the absolute separation between the three authorities. “So, for sure the State Council will reject it and send its reasons to parliament,” Farghali said.

Asked if parliament had ignored the opinion of the State Council, Farghali said the last stop will be the Supreme Constitutional Court which is not expected to provide a different say.

Head of parliament’s Legislative and Constitutional Committee Bahaaeddin Abu Shukka said his committee will discuss all views regarding the draft once it receives replies from the four judicial bodies. He said their opinion was “very important” and should be taken into consideration while deciding on the draft’s future.

Talking to Al-Hayat satellite channel, Al-Sherif said parliament would wait until it received replies from the remaining judicial bodies before debating the draft, noting that their opinion is not binding.

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