Friday,18 August, 2017
Current issue | Issue 1340, (13 - 19 April 2017)
Friday,18 August, 2017
Issue 1340, (13 - 19 April 2017)

Ahram Weekly

Judges reject draft law

Judges continued efforts to drop a draft law which they argue undermines judicial independence, reports Mona El-Nahhas

Judges reject draft law
Judges reject draft law

On Saturday 8 April the State Council started revising the judicial bodies draft law which has angered judges since it was first proposed by parliament in December 2016. The draft amended the way in which heads of judicial bodies are appointed, reportedly giving the executive authority the upper hand. Viewed as violating the constitution that lends each authority complete independence and stresses separation between them, judges have rejected the law.

Still, despite opposition by Egypt’s judges, the draft law won preliminary approval at a general parliamentary session on 27 March. A copy of the legislation was sent to the State Council which is authorised by the constitution to revise all draft laws before being endorsed.

The State Council’s legislative department will revise the legal wording of the draft articles and decide how much they conform to the constitution. Judge Mohamed Massoud, head of the State Council, chaired Saturday’s first session. The legislative department is due to prepare a report including constitutional remarks over the draft and discuss it at a general meeting before sending it back to parliament.

The State Council is legally obliged to finish revising the draft laws within 30 days. If it fails to meet the deadline, parliament is allowed to send the draft directly to the presidency for endorsement, according to Article 175 of the parliament’s statutes.

MPs said they are waiting for the State Council report before deciding their next move.

Previous stances taken by the State Council and the three other judicial bodies — all addressed in the proposed draft — indicate that the report will label the draft unconstitutional. In January, the State Council officially informed parliament of its rejection of the draft law. Last month, the Supreme Judiciary Council, the Administrative Prosecution Authority and the State Litigation Authority held the same position.

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 bodies with a completely different criteria. According to the laws, each judicial body usually presents the name of its oldest deputy chairman to the president who endorses his appointment to the chair seat. Now, by means of the proposed amendments, the president will be given the right to choose the coming head of the judicial authority from three candidates whose names are chosen by the judicial authority. Drafters of the legislation said the aim is to guarantee that the most efficient judge, not just the oldest, would take the chair seat.

On the criteria that would determine the president’s choice, judge Islam Tawfik, board member of the State Council Judges Club, sought clarity on the basis by which the president will elect the head of the judicial body. “How can we guarantee that personal whims and security considerations would not be part of the choice?” Tawfik asked.

Sources close to judicial circles said the reason behind endorsing the draft law was to ban Yehia Dakrouri from taking the chairmanship of the State Council. Dakrouri is the judge who in June last year passed the historic ruling granting Egypt’s right to Tiran and Sanafir islands.

As the oldest deputy chairman of the State Council, Dakrouri is the sole nominee for the chair, due to become vacant in June following the retirement of judge Massoud.

During an emergency general assembly of the State Council on 3 April replying to the draft, a large number of judges called for Dakrouri to be elected as the new head. Dakrouri opposed the idea out of respect for well-established judicial principles, noting that voting was not part of the working agenda of the general assembly.

The closed general assembly which lasted for three hours announced its rejection of the draft. It commissioned the Special Council, the State Council’s highest administrative body, to take the necessary legal measures to defend judicial independence. State Council judges announced an ongoing assembly to follow up on the latest developments.

According to Tawfik, the draft law includes a flagrant constitutional deviation because it undermines the constitutional principle which stresses the absolute separation between the three authorities.

The executive authority does not interfere in the election of the parliament speaker and his two deputies, so on the same basis, it should not interfere in the appointment of the heads of judicial bodies, State Council judges argued during the general assembly.

The State Council is the sole judicial body that held an emergency general assembly. The Supreme Judiciary Council delayed taking an official stance until the Judges Club completes its review of the situation.

At a meeting held on 29 March the Judges Club called upon President Abdel-Fattah Al-Sisi to use his constitutional powers as an arbiter among the three authorities and settle the current crisis between the judiciary and the legislative authority. “While defending judicial independence and maintaining constitutional principles, all options are open on condition they do not threaten the state’s stability,” said judge Mohamed Abdel-Mohsen during the meeting. The Judges Club commissioned Abdel-Mohsen to hold contacts with the presidential office to set a date for meeting Al-Sisi. Article 123 of the constitution grants the president the right to oppose legislation even if they are approved by parliament.

The president’s intervention could be one of several possible scenarios. Two others depend on how parliament will deal with the draft. Many want to shelve it, arguing that it would be the perfect solution to avert a possible clash with the judiciary. However, if parliament ignores the State Council’s remarks over the draft and insists on its endorsement, it would open the door to endless escalation on the part of judges.

“In this case, judges will have to appeal to the Supreme Constitutional Court, which will definitely annul the draft,” said Adel Farghali, former deputy chairman of the State Council.

The way by which the draft was approved is unconstitutional, judges argued. “Twenty-four hours before the parliament’s general session, another amendment was introduced to the draft without informing judicial bodies,” said MP Alaa Abdel-Moneim in press statements. Article 185 of the constitution obliges parliament to consult judicial bodies about legislation regulating their affairs. The new amendment gives the president the right to appoint judicial authority heads even if these authorities do not name their candidates if nominees do not meet the required criteria or if their number is less than three. In that case, according to the amendment, the president would be allowed to appoint the head out of the oldest seven deputies of the authority.

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