Tuesday,24 October, 2017
Current issue | Issue 1354, (27 July - 2 August 2017)
Tuesday,24 October, 2017
Issue 1354, (27 July - 2 August 2017)

Ahram Weekly

Legal arguments

The new Judicial Bodies Law faces appeals contesting its constitutionality, writes Mona El-Nahhas

Abul-Azm taking the oath of office before Al-Sisi last week
Abul-Azm taking the oath of office before Al-Sisi last week

Anas Emara, the oldest deputy chief justice at the Court of Cassation, filed an appeal on 22 July contesting the presidential decree appointing Magdi Abul-Ela, another deputy, as head of the court. Emara told the press that the decree, issued late last month, had by-passed the principle of seniority in appointing heads of judicial bodies. “The Judicial Bodies Law 13/2017 on which the decree is based is itself unconstitutional,” argued Emara. Cairo Appeals Court is due to begin hearing the appeal on 19 September.

Emara’s appeal was filed three days after President Abdel-Fattah Al-Sisi appointed Ahmed Abul-Azm as the new head of the State Council.

Abul-Azm had served as the head of the State Council Legislative Department, playing a leading role in the revision of hundreds of new laws passed by parliament. He is also a member of the Higher Committee for Legislative Reform which is headed by the prime minister and has long argued for a radical legislative overhaul if the law is to adapt to Egypt’s fast changing circumstances.

Abul-Azm took his oath of office on Thursday at Al-Ittihadeya Presidential Palace. Abul-Azm, who ranked fourth in seniority among State Council deputies, succeeds Mohamed Massoud who retired on 18 July.

The State Council general assembly which convened on 13 May agreed the oldest deputy, Yehia Dakrouri, should be the sole nominee for the post. Following the appointment by decree of Abul-Azm, Dakrouri issued a statement thanking all members of the general assembly.

Judicial sources close to Dakrouri say he intends to file a complaint with the president’s office before appealing the decree at the Higher Administrative Court.

Dakrouri is thought to enjoy the support of many colleagues who view the presidential decree as an open challenge to the will of 500 State Council judges. Others, though, have argued the State Council should turn a new leaf and avoid any confrontation with the executive which they fear could sow divisions among judges.

Interviewed by MBC Misr on Thursday, Abul-Azm said any appeal against his appointment was a judicial matter that he was unwilling to discuss. He did, however, say that a majority of his colleagues had congratulated him on his appointment.

Dakrouri is best known as the veteran judge who last year ruled against the Egyptian-Saudi Maritime Border agreement which ceded control of the two islands of Tiran and Sanafir to Riyadh.

Many commentators say the new judicial bodies law, which abandons the principle of seniority and instead allows the president to appoint the heads of judicial bodies from a list of nominees presented by the various courts, was an attempt to sideline Dakrouri after his ruling in the islands’ case challenged the government.

Some of Dakrouri’s supporters took to social media. Legal activist Negad Al-Boraai wrote on his Facebook account that “Dakrouri’s exclusion from the chairmanship of the State Council… reveals the non-stop attempts of the executive to control the judiciary after it managed to tighten its grip on the legislative authority and on financial monitoring bodies.”

Constitutional expert Nour Farahat said: “The background to the appointment decree and the controversial law are well known. What did we expect?”

But professor of constitutional law Salah Fawzi points out that the presidential decrees are perfectly legal under the new judicial bodies law.

Ratified in April, the law obliges each judicial body to forward the names of three nominees to the presidency. It is then up to the president to decide between them. Under Article 4 of the law, if less than three nominees are presented the president can appoint the head of the authority from among its seven oldest deputies.

For months judges have complained the law allows the executive to interfere in judicial affairs, undermining the principle of the separation of powers which is guaranteed by the constitution.

Before the new law was issued seniority was the sole criteria for appointing heads of judicial bodies. The president’s role was limited to endorsing the nominee put forward by the general assembly of each authority.

The Judicial Bodies Law still has to pass before the Supreme Constitutional Court (SCC) which will rule on its constitutionality, though legal experts say this is likely to be a long process and the SCC could take months to issue a judgement.

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