Saturday,23 February, 2019
Current issue | Issue 1338, (30 March - 5 April 2017)
Saturday,23 February, 2019
Issue 1338, (30 March - 5 April 2017)

Ahram Weekly

Parliament versus judges

Parliament’s speedy approval of a new judicial authority law draws sharp criticism from judges

Parliament versus judges
Parliament versus judges

The House of Representatives discussed three key laws this week of which the most controversial gives the president the right to name the heads of Egypt’s main judicial authorities.

On Monday night, with surprising speed, the House approved amendments of four laws regulating the Administrative Prosecution Authority, the State Lawsuits Authority, the Court of Cassation, and the State Council.

Despite being opposed by the Higher Council of Judges, the amendments were approved, empowering the president of the republic to name the heads of all four judicial authorities.

The draft amendments, presented in December 2016, state that the president can select one of three candidates nominated by each judicial council as its head. The changes triggered sharp criticism from the Judges Club which argued seniority should be the main criterion for selecting the heads of judicial authorities.

Speaker Ali Abdel-Aal argued the amendments would not affect judicial independence.

“Laws cannot be tailored to the needs of each profession but must promote the national interest,” said Abdel-Aal. “If each profession insisted that laws be passed to serve its own interests parliament’s job would be reduced to rubber-stamping legislation.”

Abdel-Aal urged judges to observe the principle of the separation of authorities. “Judges must observe Article 5 of the constitution which states that the political system is based on the separation of powers,” said Abdel-Aal.

Bahaaeddin Abu Shokka, head of parliament’s Legislative and Constitutional Affairs Committee, said “basing the selection of heads of judicial authorities upon the principle of seniority has proved disastrous.”

“Things deteriorated even further after the retirement age for judges was raised to 70. The fact is judges who become heads of judicial authorities at the age of 70 are often unable to perform their jobs because of old age.”

Following parliament’s approval the Judges Club reiterated its rejection of the changes and called on its branch heads to meet next Wednesday to discuss the matter further.

Some MPs voiced their support of the Judges Club, warning that the amendments may violate the constitution.

Independent MP Abdel-Moneim Al-Oleimi said the draft amendments undermined Article 185 of the constitution which states that each judicial authority is fully in charge of its own affairs and budget and must be consulted on any draft laws regulating its performance.

Abdel-Aal said the amendments will be referred to the State Council to be revised in constitutional terms but stressed that the council’s recommendations will be “advisory” rather than “binding”.

Meanwhile, parliament postponed a final vote on another controversial law aimed at regulating street protests. After a brief discussion on Monday Abdel-Aal informed the House that the vote on amendments to the protest law (Law 107/2013) would have to be postponed because the required quorum of two-thirds of MPs were not present.

Minister of State for Parliamentary Affairs Omar Marawan said the proposed changes to the protest law represent “a step on the road to democratisation.”

“The amendment strips the Interior Minister and security chiefs from having a final say on street protests in favour of the judiciary.”

“Practically, what it means is that if the Interior Ministry wants to impose a ban or postpone a street protest it must secure a judicial review.”

Article 10 of the draft law now states: “If the interior minister or affiliated security chiefs decide, on the basis of credible information, that a planned street protest would pose a threat to peace and security a request must be submitted to judges sitting on first-instance courts who must approve that the street protest, procession or general assembly be banned, postponed, transferred to a different place or have its route changed. Protest organisers can appeal the ban or the postponement decision in accordance with civilian and commercial procedures law.”

The brief discussion on Monday saw MPs divided into two camps: those who want to rid the law of any prison sentences and those who insisted discussion should be limited to amending Article 10 in accordance with the orders of the Supreme Constitutional Court.

Marawan said the government’s proposed changes covered only Article 10 “in line with the ruling issued by the Supreme Constitutional Court on 3 December 2016 which found the protest law in general in line with the constitution and recommended only Article 10 be amended”.

Abdel-Aal told MPs prison sentences stipulated in the law should remain as a deterrent to those who seek to exploit street protests as a cover for acts of subversion and sabotage.

MP Mustafa Bakri argued “the elimination of prison sentences aims to spread chaos.” He said “the Supreme Constitutional Court allowed street protests be organised under certain conditions without saying that prison sentences should be ruled unconstitutional.”

Independent MP Khaled Youssef criticised the government for “not doing more to rid the law of prison sentences”.

Alaa Abed, head of parliament’s Human Rights Committee, said he hoped discussion of the draft amendment would not be restricted to the Legislative and Constitutional Affairs Committee.

“After 60 years of authoritarian rule, we had hoped Egyptians would be allowed to express themselves in public protests without facing prison sentences,” he said.

Free Egyptians Party MP Ayman Abul-Ela pointed out that the Youth Conference inaugurated by President Abdel-Fattah Al-Sisi last year recommended that prison sentences be removed from the protest law.

Abdel-Aal responded saying: “Those who think Egypt has become 100 per cent safe and secure are wrong... Attempts aimed at destabilising the country are still underway and aim to exploit the protest law to achieve this objective.”

A joint report prepared by parliament’s committees on legislative and constitutional affairs and defence and national security points out that the government-drafted 25-article bill amends the 2013 law on the “regulation of public assemblies, processions and peaceful protests” after the Supreme Constitutional Court ruled in December that Article 10 of the protest law was unconstitutional since it “grants the interior minister and security chiefs an absolute right to violate a basic freedom guaranteed by the new constitution”.

Judges affiliated with first-circuit courts will be entrusted with upholding the constitutional right to public protest, according to the report.

“The judges will be more objective and will make sure that this constitutional right is observed by the Interior Ministry and that it is exercised in line with considerations regarding national security and public peace.”

The report argues that the amendments satisfy two objectives: guaranteeing the right of citizens to organise peaceful public protests while upholding national-security and public order.

Parliament also decided on Monday that a long-awaited law creating a “national election commission” be referred to the Legislative and Constitutional Affairs Committee for further discussion.

The 37-article draft seeks to implement Article 208 of the 2014 constitution by creating an independent National Election Commission to supervise public referendums and presidential, parliamentary and municipal elections.

The commission will comprise 10 senior judges, the two senior deputies of the head of the Court of Cassation, the heads of two appeal courts, two deputies of the head of the State Council, two senior judges affiliated with the State Cases Authority and two with the Administrative Prosecution Authority.

Discussions on Monday in parliament revealed sharp differences among MPs over whether judicial supervision should be eliminated after a transitional period of 10 years or be made permanent.

Abdel-Aal told the House of Representatives Article 34 of the draft law upholds Article 210 of the constitution “which is clear that judicial supervision of elections should come to an end after 10 years”.

Culture and Media Committee head Osama Heikal argued that “the public trusts judges and can’t imagine elections without judicial supervision.” Other MPs insisted that judicial supervision guarantees the integrity and transparency of the poll. As a result, Abdel-Aal decided the draft law should be referred to the Legislative and Constitutional Affairs Committee to see whether making judicial supervision permanent would be constitutional.

The delay in passing a law on the National Election Commission has led to local council elections being postponed several times already. Now it appears unlikely they will be held before 2018.

add comment

  • follow us on