The independence of the 2017 · I. Clash of the executive authority with the judiciary after...

w w w . d a a m d t h . o r g

An endless history of clash with the

Executive authority

The independence of the judiciary in Egypt

2017

iii 2015

Judicial Independence In Egypt An endless history of clash with

the Executive authority

Democratic Transition Support Paper

15 August 2017

Prepared By Sameh SamirReviewed and Edited By Mohamed Omran

Introduction 1

Introduction 2

I. Clash of the executive authority with the judiciary after January 25th 2011

1- Verdict of dissolving the People's Assembly 2012

2- Morsi's decision to return the parliament

3- Development of the conflict and the siege of the Court

4- The 2012 Constitution

II. The attack on the State Council and the administrative justice system:

1- Amending the judiciary law regarding the selection of heads of judicial

committees

2- Issuing the law of the judiciary regarding the selection of heads of judicial

bodies

III- Recommendations

Table Of Contents

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7

12

Judicial Independence In Egypt... An Endless History Of Clash With The Executive Authority

15

17

18

20

21

31

35

12

Introduction1


The clash between the executive and judicial authorities was repeated during the era

of presidents Abdel Nasser and Sadat, the executive branch sought to directly

control and bypass judicial committees, to bring judges closer, and to appoint them

in executive posts.

There was a previous confrontation between the executive branch (in Abdel Nasser

era) and the State Council, which was headed by adviser Abdel Razek al-Sanhuri at

the time, that is the subject of the current crisis with the legislative and executive

branches.

In 1955, a package of laws was issued, reorganizing the State Council and revoking

the immunity of its members. The executive authority amended the powers of the

Public Prosecutor's Office to combine the indictments and investigations authorities

after their separation in 1951and became now part of the public prosecutor’s jurisdic-

tion that practically follows the Ministry of Justice.

After the defeat of 1967, Abdel Nasser tried to involve the judges into the political pro-

cess by integrating them into the Socialist Union, creating the so-called “popular

judiciary” to allow the participation of non-judges in the judiciary. The Judges Club

issued a statement explaining its rejection of the executive authority's attempts to

control the judiciary.

1

2

In August 1969, in the so-called "massacre of the judges", Abdel Nasser repudiated all

judicial committees and excluded some 200 judges, including the President of the

Repeal Court and the Vice-President of the Council of State, and The Higher Council

of Judicial Bodies (now the Supreme Judicial Council) was formed and was headed

by Abdel Nasser himself.

When president Anwar al-Sadat took over, he tried to make reconciliation with the

judges. He returned the dismissed judges to their posts and the Judicial and State

Council laws were issued in 1972, but these laws kept the Ministry of Justice domi-

nant over the judicial committees. Until now these laws have continued to be imple-

mented with some amendment.

There were many discussions during the rule of former president Hosni Mubarak on

the reduction of the mandate of some judicial committees, but Mubarak did not

make any amendment that angers the judges, in the ongoing uprising in the Judges

Club against any moves of the executive to restrict the work of judges.

The beginning of the rounds of conflict with the judiciary started when Counselor

Abdul Ghaffar Mohammed filed a complaint to the Supreme Judicial Council accu-

sing the Egyptian Intelligence of eavesdropping on the judges' deliberation chamber

following the publication of an audio record of him proving that the defendants in

the major Jihad case were tortured by the Egyptian Intelligence and asking to start

over the investigation.


3

In 1986, the judges held the First Justice Conference, in which they submitted a

number of demands for the liberation of the judiciary from the administrative and

financial hegemony of the executive branch. In the forefront of these demands were

the transfer of judicial inspection and health care funds from the Ministry of Justice

to the Supreme Judicial Council, and the allocation of a separate financial budget for

judges. The most prominent thing in this conference was the Chief Justice, Counse-

lor Yahya Rifai, President of the Judges Club of Egypt, strongly attacking Mubarak in

his presence because of the extension of the Emergency Law for another three years

and his demand for the use of his powers to cancel it. Rifai had previously fought

with both Presidents Abdel Nasser and Sadat and it is due to him that the "current of

independence of judges" was established. [1]

The judges club's board threatened not to supervise the presidential elections in

2005 if the state does not adopt fundamental reforms that guarantee the inde-

pendence of the judiciary and amend the judiciary's law to guarantee that inde-

pendence. The Judges Club then rejected a new bill for the judiciary prepared by the

government without involving judges. [2]

references


[1]Speech of Counselor Yahya Rifai at the Justice Conference 1984 https://www.youtube.com/watch?v=ROvFEjZc-dY[2]"Chasing the Brotherhood and the Communists" .. Amendments to the laws of the judiciary in Egypt threatens to endthe honeymoon between the judges and the system - Huffington PostArabic http://www.huffpostarabi.com/2016/12/30/story_n_13895572.html

4

The conflict also came back in 2006 when judges announced widespread irregulari-

ties observed during the 2005 elections committed by national party candidates, The

majority of the political forces played an important role in supporting the judges'

demands for their independence and rejecting the law of the judicial authority sub-

mitted by the government and approved by the majority of the National Party in the

parliament which increases the administrative supervision of the Ministry of Justice

on the judges in exchange for reducing the competencies of the Supreme Council of

Judges. The Judges Club, which was the current of judicial independence, described

it as a dangerous step that threatens the future and freedom of the judiciary and

increases the Executive Authority's intrusion on its affairs. The security forces dealt

very violently with the demonstrations that came out in favor of the judges. The

demonstrators were beaten and more than 2,000 were arrested.

The judges, supported by the political forces, have maintained their demands to

issue the law of independence of the judiciary prepared by the Judges Club, so that

they can fully supervise the general elections. . While doing their duty, a number of

these judges were subjected to a lot of insults, humiliation and aggression by security

forces, and then the executive branch slipped into investigating some of the advisers,

including advisers Hisham Bastawi and Mahmoud Makki before the Supreme State

Security Prosecution, and then to the Commission of Validity, which was rejected by

the judges and sparked widespread solidarity protests.


5

The clash erupted between the executive authority and the judiciary after January

25th, 2011, and it became very clear that the protection of the judiciary did not

prevent both the executive and legislative branches to engage in many battles with it

because of its provisions that opposed their political purposes which have come to

repeatedly attack the judiciary either by trying to enact restrictive legislation, or the

violation of verdicts issued by different co-urts or even besiege the courts in some

cases.

Despite the societal attack in many cases on the Egyptian judiciary, especially the

criminal justice and the accelerated justices, which is often biased with the policies

of the ruling authority especially after June 30, and the formation of the criminal

crimes of terrorism, which was a powerful hammer in the hands of the executive

authority in striking opposition as well as verdicts of the accelerated judiciary which

in many cases violated the law in favor of the executive authority in its decisions.

However, this did not prevent the executive branch from engaging in many battles

for greater control over the judiciary.


references

[3]The seventh day, judges of Egypt .. A long history in the range of fire of the rulers.. Massacre with Nasser, restrictions of Sadat .. beaten by Mubarak .. Morsi ends their inderpendence.. Sadat Authority used the "recruitment" and Mubarak aborted their supervision of the elections - Monday, 03 December 2012 https://goo.gl/KnrWiJ

6

In our review of the threat to the judiciary in Egypt, we review two large inci-

dents:

1- Attack on the Supreme Constitutional Court after its decision to dissolve the Par-

liament in 2012.

2- Attack on the Council of State and the system of administrative justice after the

provisions that approved the cancellation of the delineation of the maritime

border with Saudi Arabia Convention wich led Egyptian ruling of the islands

Tiran and Sanafir in 2016.


7

Introduction 2The basic idea of the principle of separation of powers is that the main functions of

governing; legislative, executive and judicial, must be distributed between separate

and equal bodies that are independent of one another while doing their job in order

to ensure that the power is not concentrated in one hand so it abuse it and oppresses

the people in way that leads to the elimination of individuals’ lives and rights. [4]

Article 5 of the Egyptian Constitution states:

“The political system is based on political and partisan multiplicity, the peaceful

transfer of power, the separation and balance of powers, authority going with

responsibility, and respect for human rights and freedoms, as set out in the constitu-

tion.”

One of the most important elements of this principle is the existence of mutual

control between the authorities, provided that such control does not conflict with

the principle of separation and independence, and the judicial authority usually

receives the majority of that control over the other two authorities.

The Egyptian Constitution has decided on special protection for the judiciary to be

able to exercise its supervisory role as Article 184 states:

references

[4]The Concept of the Separation of Powers ... Ibrahim Al Haj Ali - President of the International Center for defending Human Rights and Public Freedoms http://elresala.ahlamountada.com/t181-topic


8

“The judiciary is independent. It is vested in the courts of justice of different types

and degrees, which issue their judgments in accordance with the law. Its powers are

defined by law. Interference in judicial affairs or in proceedings is a crime to which no

statute of limitations may be applied.” However, the principle of separation of powers

is not the main guarantee of the independence of the judiciary, whose calibers and

guarantees have been defined by a document (Basic Principles on the Independence

of the Judiciary) issued by the United Nations.

The criteria and guarantees of the independence of the judiciary can be clarified

as follow:

1- Membership / functional independence: This guarantees the independence of the

judiciary from both the executive and the legislature branches, or the so-called

principle of separation of powers, as explained above.

2- Institutional independence / autonomy: It distinguishes between the inde-

pendence of the judiciary in general and the independence of the judges indivi-

dually while making their judgments. The Egyptian Constitution guaranteed this

by stating in Article 184 that "the judiciary is independent" while article 186 stipu-

lates that "The judges are independent.


references

[5] Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offen-ders, held in Milan from 26 August to 6 September 1985 As adopted and made public by United Nations General Assembly resolutions 40/32 of 29 November 1985 40/146 of 13 December 1985 http://hrlibrary.umn.edu/arab/b050.html[6] Legal Agenda (Guide on the Criteria of the Independence of the Judiciary) January 19th, 2017 http://legal-agenda.com/article.php?id=3392

9 Judicial Independence In Egypt... An Endless History Of Clash With The Executive Authority

while article 186 stipulates that "The judges are independent. The judge's auto-

nomy is known as the internal aspect of self-autonomy. It is built not only on the

principles of judicial independence and separation of powers but also on another

principle of equal importance which is equality between judges.

3- External Independence / Internal Independence: If institutional independence

presupposes the protection of the judicial institution from the pressures exerted

by an external source, this autonomy also requires the protection of the institu-

tions internally, so that one judicial committe does not infringe on others in a way

that might undermine its independence, such as the Supreme Judicial Council In

the work of the Judicial Inspection Commission or similar.

4- The principle of the normal judge / the exceptional nature of the courts: The prin-

ciple of "natural judge" constitutes one of the basic guarantees of the right to a fair

trial and is based on the dual principle of equality before the law and the courts.

It means that litigants have the right to be tried in an equal manner before courts

and in accordance with the same procedural rules and application of the provi-

sions of the same law. No one shall be prosecuted except by an ordinary, pre-esta-

blished and competent court, and as a parallel principle, the establishment of

emergency courts, and as a consistent principle the establishment of an emer-

gency, exceptional, special or retroactive tribunal is prohibited.


5- The integrity of the judge / the independence of the judge: Although there is a

close link between the concepts of independence and integrity, they can be distin-

guished. If independence means that the judge or the judicial institution are not

subject to pressure from an external source of authority or other judicial institu-

tion or individual, integrity is an internal source and it is related to the judge's

mentality, opinions, prejudices and personality towards the case or the opposing

parties. The judge must not have an interest in the case under consideration. It is

possible to define integrity as the absence of hostility, bias or sympathy towards

either side.

To protect those standards a set of guarantees were put:

1. The Supreme Council of the Judiciary: It is the first guarantee to protect the judi-

ciary by the existence of an elected, independent judiciary that conducts the judi-

cial affairs.

2. Standards of competence and integrity for the entry of the judiciary.

3. Guarantees in the professional course or the judges (the judge may not be removed

or transferred without his consent and promotions must be guaranteed).

4. Judges' evaluation criteria.

5. Guarantees against external interference (criminalization of interference in the

work of the judiciary and the existence of special protection for this)

7. Guarantees of the principle of equality between judges.


8. Basic freedoms (freedom of expression and assembly).

9. The principle of accountability and the judge’s rights for disciplinary procedings.

10. Financial independence.

11. To promote the culture of judicial independence. [7]

references

[7]Legal Agenda (Guide on the Criteria of the Independence of the Judiciary) January 19th, 2017 http://legal-agenda.com/article.php?id=3392


I. Clash of the executive authority with the judiciary after January

25th , 2011:

The attack on the Supreme Constitutional Court in 2012

The Supreme Constitutional Court is one of the tops of the Egyptian judicial pyra-

mid. The Constitution defines its competence in Article 192, which states:

“The Supreme Constitutional Court is exclusively competent to decide on the

constitutionality of laws and regulations, interpret legislative texts, and adjudicate

in disputes pertaining to the affairs of its members, in disputes between judicial

bodies and entities that have judicial mandate, in disputes pertaining to the imple-

mentation of two final contradictory rulings, one of which is issued by any judicial

body or an agency with judicial mandate and the other issued by another body, and

in disputes pertaining to the implementation of its rulings and decisions”.

1 –Verdict of dissolving the People's Assembly 2012:

On June 16th , 2012, the Supreme Constitutional Court stated regarding case No.

2656 of 13th judicial year that :

1- text of the first paragraph of Article III of Law No. 38 of 1972 regarding the People's

Assembly replaced by Legislative Decree No. 120 of 2011 is unconstitutional.

2- the contents of the text of the first paragraph of Article six of this law that is

replaced by Decree - Law No. 108 of 2011 to launch the right to apply for nomina-

tion to the People’s Assembly in the constituencies allocated to the individual


system election for members of political parties as well as members non - belon-

ging to parties is unconstitutional.

3- Article nine bis (A) of the said law added by Decree Law No. 108 of 2011 as stipula-

ted in the final disclosure of the names of candidates in the individual system in

the statement of the party to which the candidate belongs is unconstitutional.

4- Article one of Decree-Law No. 123 of 2011 amending certain provisions of Decree

Law No. 120 of 2011, and the abolishment of the text of Article two of the Decree-

Law referred to is unconstitutional. [8]

On June 16th , 2012, Marshal Hussein Tantawi, President of the Military Council

(Acting President of the Republic), officially dissolved the People's Assembly, decla-

ring that it is “unlawful” and began the implemention of the ruling in connection

with the dissolution of the People's Assembly and prevent the entry of former depu-

ties to the Council without prior permission and notice. [9]

The ruling and the following resolution of dissolving the Council were issued in

conjunction with the second round of presidential elections, in which the candidate

of the Freedom and Justice Party, in Parliament (Mohammad Morsi) and his rival

Ahmad Shafiq, competed to create a huge crisis between the Freedom and Justice

Party and the military council ,the ruler of the country at that time, they considered

references

[8]Al - Ahram publishes the full text of the reasons behind the Supreme Constitutional Council dissolving the People 's Assembly 24/06/2012 http://gate.ahram.org.eg/News/220045.aspx[9]France 24, Marshal Tantawi officially announces the dissolution of the People's Assembly and confirms that it is "not in force by law" 16/06/2012 https://goo.gl/5iaCNV


the verdict political and aims to prevent the Muslim Brotherhood from controlling

the keys to government; the executive and legislative authorities upon the arrival of

their candidate for the seat of the presidency.

The Muslim Brotherhood issued a strongly worded statement that considered the

decision of the military council to dissolve the parliament as "grabbing the legislative

power unlawfully, adding it to the executive authority, which is supposed to hand it

over to the civilians two weeks later." The group described it as a coup against the

entire democratic process and a return for Egypt to the zero point again.

The statement criticized those who considered that the People's Assembly became

dissolved just by issuing the ruling of the Constitutional Court, in reference to some

politicians and legal experts. The statement said that the response to these came

from the military council, which issued a resolution to dissolve the Council, which

means that IT was not dissolved just by the verdict. The statement then turned into

a refutation of the military council’s decision and considered it illegal because it was

based on the constitutional declaration, although the declaration does not entitle

the Council to this right, The chair of the People's Assembly at the time d. Mohamed

Saad AlKatatni announced the referral of the verdict of the Supreme Constitutional

Court regarding the invalidation of some articles of the election law of the People's

Assembly election to the Committee of Constitutional and Legislative Affairs of the




Assembly to consult with professors of constitutional law to study how to deal with

this provision, especially with the existence of many interpretations of the jurists on

the form of application, and is it about those who were elected by the individual

system or also those who were elected by the party lists system.

the Freedom and Justice Party that owns the parliamentary majority, pointed out that

the continuous waving of the dissolution of the parliament that was elected by the

will of thirty million Egyptians, confirms the desire of the military council to seize all

the authorities against the will of the people, and its desire to gain itself a legitimacy

that was not authorized by the people in a blatant attack on the great Egyptian revolu-

tion. [10]

2 - Morsi's decision to return the parliament:

A few days after he assumed the presidency, President Mohamed Morsi issued on July

8th a republican decree No. 11 of 2012 to cancel the decision of Marshal Mohamed

Hussein Tantawi to dissolve the People's Assembly, following a ruling of the Supreme

Constitution Court nullifying the law of one-third for individual seats. Morsi called

on the People's Assembly to re-convene starting from July 15th to exercise its powers

stipulated in Article 37 of the Constitutional Declaration and called for early elec-

tions to the Council within 60 days from the date of the people's approval of the new

references

[10] Aljazeera website: dissolving parliament raises a crisis between the Muslim Brotherhood and the

"military" 2012/06/17 https://goo.gl/rwkkRc



references

[11] Al-Arabiya Morsi cancels the decision to dissolve the People's Assembly and invite it to convene, he announced the holding of early parliamentary elections within 60 days of approval of the new constitution 08 July 2012 http://www.alarabiya.net/articles/2012/07/08/225231.html [12] The Seventh Day: the reactions after the decision of "Morsi" to gather back the People's Assembly Moussa: the decision is a call for political fencing .. Al-Wasat: a guarantee to treat the legislative vacuum ..Hamzawi: wasting judicial sentences, Al-Zumar: Restores the will of the people Monday, 09 July 2012 https://goo.gl/Zod8fM

constitution, [11] which was the decision that caused a huge political battle between

the full support of Islamic currents and the opposition of all other political forces. [12]

The Constitutional Court held its session on Tuesday, July 10th and suspended the

implementation of President's Decree No. 11 of 2012, and ordered the implementa-

tion of the provision under the draft and without declaration.

The court said in its ruling that the Constitutional Court's law states that the

Supreme Constitutional Court shall have exclusive jurisdiction over the constitutio-

nality of laws and regulations. It also stipulates that the verdicts and decisions of the

court are final and cannot be appealed, and that its provisions in constitutional cases

and decisions of interpretation are binding on all State authorities and on all, and

that the provision of unconstitutionality of the text of a law or a list is non-applicable

as of the day following the publication of the provision.

Article 50 of the law provides that the court shall decide only in all disputes related

to the execution of verdicts and decisions issued by it. The lifting of the dispute shall

not lead to suspension of execution unless the court orders this until the dispute is

settled. [13]



3. Development of the conflict and the siege of the Court:

The conflict between President Mohamed Morsi and the Constitutional Court conti-

nued to the extent that the first had issued statements against it in one of his

speeches. The Court responded on November 24th , 2012 with a statement, issued in

a precedent, that contradicts most of what was stated by the President. [14]

This conflict reached its peak when nearly 5,000 people demonstrated in front of the

Supreme Constitutional Court at the time the court was supposed to organize the

first two sessions demanding the unconstitutionality of the Shura Council law and

the unconstitutionality of the criteria for electing members of the Constituent

Assembly to draft a new constitution for the country, which forced the Constitutional

Court to suspend its meetings indefinitely and issued a statement on that suspension

stating that:

"The date of the hearing of the cases before the Supreme Constitutional Court on

December 2nd, 2012, was a dark day in the Egyptian judicial record throughout its

era. When the judges began to arrive early in the morning to attend their session, a

crowd of people surrounded the court from all sides, block road entrances to its

doors, climb its walls, chant slogans denouncing its judges, and incite the people

against them.

references

[13] The seventh day publishes the provisions of the Supreme Constitutional Court sentence to stop the president's decision to bring back "the people's assembly" .. Court: the Republican decision is an obstacle to the implementa-tion of the provision of unconstitutionality of the election law.. The return of the Council threatens the state entity - Tuesday, July 10 https://goo.gl/MjmcPY [14] The text of the statement, Alwatan 24/11/2012 http://www.elwatannews.com/news/details/83138



This has prevented the entry of judges because of the threats to their safety under an

unsatisfactory security situation.

The statement continued: "The Court, noting with deep sorrow, that the methods of

moral assassination of its judges, which has been executed in the past period by this

crowd and others who belong to it and who are demonstrating today against the

court, led to this abhorrent scene full of shame and disgrace, which carried defama-

tion and misinformation and falsification The facts. [15] . The siege lasted for 18 days

before it was terminated and the Tribunal returned to work again.

4- The 2012 Constitution:

The end of that conflict between the executive authority and the judiciary was not

ended with the end of the Constitutional Court siege, but the executive authority

used its influence on the Shura Council and the Constituent Assembly, which were

completely followers of the Muslim Brotherhood current, by reducing the powers of

the Constitutional Court in the 2012 Constitution and restructuring it. The 2012

Constitution removed the Constitutional Court from its role in the subsequent moni-

toring of laws and restricted it to the previous censorship only, and reduced the mem-

bers of the Court from 19 to 11 members only, and the constitution also did not pro-

vide immunity to constitutional judges from displacement, and mandated the deter-

mination of many of the Court's powers to the law.

references

[15] The text of the statement, Alwatan 24/11/2012 http://www.elwatannews.com/news/details/83138


The battle between the executive branch, represented by the President of the Repu-blic, and the judiciary, represented by the Constitutional Court as the Supreme Court of the country, carried violations to the standards of independence of the judiciary especially the criterion of membership independence -functional inde-pendence:

1- It has become clear that there was a violation of the independence of the judiciary members, which presupposes ensuring the protection of judges against any inter-

reached the point of besieging the court to pressure the judges.

2- As it is clear that the functional independence (which provides that no legislative

sion) was violated as the President of the Republic decided to return the parlia-ment, which was dissolved by a judicial decision, to convene.

II. The attack on the State Council and the administrative justice system:

The State Council was established in 1946 along the lines of the French State Council.

Article (190) of the Constitution, which stipulates:“The State Council is an independent judicial body that is exclusively competent to adjudicate in administrative disputes, disciplinary cases and appeals, and disputes pertaining to its decisions. It also solely competent to issue opinions on the legal issues of bodies to be determined by law, review and draft bills and resolutions of a legislative character, and review draft contracts to which the state or any public entity is a party. Other competencies are to be determined by law”.

The Egyptian State Council has many historical provisions that placed it in a position of a protector of citizens’ rights and freedoms in the face of the erroneous and some-times reluctant decisions of the state like the provisions of passing Emergency Law to the Constitutional Court since the 1990s and obliging the state to compensate the detainees for arrest or torture or prohibiting visits or asserting the right to strike according to international conventions.

It also returned thousands of employees to work after being discharged for security or political reasons. It also obliged the government to enable citizens to exercise their right to demonstrate during Mubarek era, as well as other important provisions regar-ding the minimum wage , the nationalization of the public sector of the state after


multiple important legal rules such as dismissing the theory of the exercise of soverei-gnty in resolutions that are contrary to the Constitution and others.However, these historical provisions and positions did not go unnoticed in a country

it gets tired of the exercise of absolute authority in the face of its citizens. Hence, the attack on the Egyptian State Council took place concurrently with the sessions of the State's appeal against the verdict issued by the First Chamber of the Council (the Department of Rights and Freedoms) which recognizes the islands of Tiran and Sana-

Authority Law regarding the selection of heads of judicial committees.

1- Amending the judiciary law regarding the selection of heads of judicial committees :

Member of parliament Ahmed Helmy El Sherif, the deputy of the Constitutional and

No. 46 of 1972 and the Administrative Prosecution Authority Law No. 117 of 1958, 47 of 1972 regarding the appointment of heads of regarding the appointment of heads of judicial committees and those articles related to the appointment of heads of commit-tees as they were appointed as provided for in Article 83 of the Law of the State Council through a General council Assembly of the State Council that selects Assembly of the


of the State Council that selects the chairman and addresses the President of the Republic to issue the decision of appointment, therefore, the power of choice is in the hands of the General Assembly and not under the authority of the President of the Republic who cannot intervene. [16] However, in the new bill, the authority will be transformed so that the President of the State Council will be appointed by the President of the Republic among three of his deputies nominated by the General Assembly.

The explanatory note of the bill indicated that the replacement articles showed the validity of the principle of seniority in an absolute way, stressing that this amend-ment would give a wider chance to the judicial committees to nominate three depu-ties, one of whom will be chosen by the president to chair each committee. The memo added that "the new method of selecting the heads of these committees gave them the right to nominate three of their deputies and limit the role of the president of the republic to choosing one of them," [17] This bill violates one of the most important pillars of the State Council’s inde-pendence, which is the method of selecting the President of the Council.


references

[16] Article 83 of the Law of the Council of State stipulates:"The President of the Council of State shall be appoin-ted by a decision of the President ofthe Republic among the Vice-Presidents of the Council after taking the opinion of a special General Assembly consisting of the President of the Council, his deputies, deputies and advisers who have served as advisers for two years.The deputies of the President of the Council and its deputies shall be appointed by a decision of the Presidentof the Republic after the approval of the General Assembly of the Council.The rest of the members and the assistant delegates shall be appointed by a decision of the President promotion shall be considered from the time of the approval of the General Assembly or the Council referred to depending on the case. "

The current legislation grants the General Assembly of the State Council alone the power to choose the President of the Council, and the decision shall be sent to the President for approval and promulgation. The new project adopted by the state expands the powers of the President of the Republic and limits the authority of the General Assembly as it is required to choose three names and send them to the President who has the right to choose the Presi-dent of the Council among them.

and integrity of the judiciary are fundamental guarantees for the protection of rights and freedoms. Therefore, any aggression against this independence is in fact aimed at endangering citizens’ rights and freedoms. Moreover, this project represents an aggression against the content of Article 184, which criminalizes the interference in

hibits the interference of the executive branch in them. The State Council reacted to

ring its members in an emergency meeting to discuss the matter, stressing that "the

." describing it as a more intimidating threat than the one the Egyptian judiciary faced during the Muslim Brotherhood era.


references

[17] Seventh day publishes the text of the draft law of the judiciary authority for the appointment of commit-tees' presidents- Friday, December 23, 2016 https://goo.gl/jpTgAk


In a statement, the Council enumerated its remarks on the referred bill, starting with the issue of the lack of urgent need to adopt such a law. The Council stressed that "at a time when the Egyptian nation needs unity, solidarity and to align behind its leadership to face the grave dangers faced by Egypt, this project, which we see as a nucleus of a very dangerous gesture that will only lead to further division and frag-

most important national institutions. "

Members of the Council also noted that while the State Council has submitted a bill amending its law and amending the terms of reference of both the Administrative

justice and speedy adjudication of cases, which is a public interest sought by the

approved by the Council. We were surprised that anonymous instructions had been issued to put the law that was passed in the parliament’s lockers and abstaining to notify the president of the republic to be issued, which is a disruption to the will of the parliament and a creation of a new way to disrupt the laws approved by the

the interests of citizens and the supreme interest of the State. While the law remains

ning the most important guarantees of the judiciary independence and without any real interest to be desired.

The statement stressed that the bill includes serious and extremely dangerous violations of the constitution, we see that these obvious violations could not hide from the eyes of those who drafted this suspicious bill, and these violations are

1- The project includes changing the role of the President of the Republic from the mere adoption and signing on the choice of the judges of the State Council as the Chairman of their Council and their Supreme Court, to grant him discretion in the selection and appointment of the President of the State Council and the Presi-dent of the Supreme Administrative Court, which represents a serious violation of article 94 of the Constitution, which states that " the independence, immunity and impartiality of the judiciary are essential guarantees for the protection of rights and freedoms".

2- Article 185 of the Constitution provides that all judicial bodies administer their

Supreme Administrative Court and the President of the Parties Court (the Presi-dent of the State Council) is one of the most important matters of the judiciary and of the State Council judges No other authority shall play a role in the selection or appointment of the President of the Supreme Court of Egypt and its judges in

which no statute of limitations may be applied”,It is noted that the word "judicial



president of the supreme administrative court and the President of the Parties Court (the President of the State Council) is one of the most important matters of justice in the State Council and this crime equates with interference in cases considered by the courts of the State Council.

dismissed, are subject to no other authority but the law, and are equal in rights and duties. The conditions and procedures for their appointment, secondment, delegation, and retirement are regulated by the law. It also regulates their discipli-nary accountability They may not be fully or partly delegated except to bodies and

tains the independence and impartiality of the judiciary and judges and prevents

independence of the judiciary and the neutrality of its judges because it may lead the division of judges and planting the seeds of sedition among them while nomi-nating three Vice-President of the State Council without the restriction of senio-

to approach by saying or deeds or contact or any other form of approaching to the institute of the presidency to win the satisfaction and the approval of Mr. presi-dent for choosing and appointing the President of the Supreme Administrative Court, the President of the the Parties Court and the President of the Council of


that has the same immunity and


independence as both the ordinary and administrative judiciary, and if the draft preserves the independence and impartiality of the Supreme Constitutional

of the ordinary and the administrative judiciary, and thus of the independence of all judicial bodies must not be violated. [18]

On the other hand, Member of Parliament Ahmed Hilmi Al-Sharif, Deputy of the

the real purpose of proposing, along with 60 other deputies, the bill that allows for the appointment and the revocation of the rule of "seniority" in presiding over judicial bodies is for the president to choose the appropriate judge among the three choices presented to him by each judicial body, it is unreasonable for any

to be in this position. [19]

It was speculated that the aim of the new law was to exclude the adviser, Yahya al-Dakrouri, vice-president of the State Council, who has issued the verdict

part of Egyptian,

references

[18] Al-Shorouk, the State Council criticizing « amendments to the presidency of the judicial authorities is more dangerous than the attack of the Muslim Brotherhood »Posted Tuesday, December 27th, 2016http://www.shorouknews.com/news/view.aspx?cdate=27122016&id=09565642-9436-462a-ae27-48b21eed94d6 [judiciary in Egypt threatens to end the honeymoon between judges and the system.Published: 30/12/2016


and who is the strongest candidate for the presidency of the State Council after the retirement of the current President of the Council, Counselor Mohamed Masoud, at

A judicial source told "Al-Watan" newspaper that amending the law of the judicial bodies by the parliament came in response to what the deputies consider “ depriving the State Council of the competence of the Parliament” to consider, and perhaps

Egyptian. The judicial source stated that "the timing of submitting the proposal

dangerous turning point that will lead to the clash of powers instead of separating them. [20]

The expert jurist, adviser Tariq al-Beshri, harshly criticized the bill stressing its viola-tion of the Constitution and judicial norms and stressing that «judges, in their judi-cial and administrative work, are used to deliberation, participation and collective decision-making. The judiciary does not grant the oldest full authority, even in the deliberation, the head of the department is likely to decide when disagreement between the two opinions occurred, but he cannot decide alone ».

references

presidency of the StateCouncil - Monday 26-12-2016 http://www.elwatannews.com/news/details/1717530


the authority to choose the head of the judiciary." »[21]

In parallel, a group of political activists announced their solidarity with the inde-pendence of the State Council, such as Khalid Ali, the lawyer who defended the case

violating its independence. [22]

references

presidency of the StateCouncil - Monday 26-12 2016 http://www.shorouknews.com/news/view.aspx?cdate=26122016&id=fd9a3984-aa6c-4366-bc98-ef3d74ba9439media campaign December 28th, 2016 https://goo.gl/MWyb8s


2- Issuing the law of the judiciary regarding the selection of heads of judicial bodies:

tial initiated Decree No. 13 of 2017 to issue the law, one day after its adoption by the Parliament. That was followed by multiple reactions from the judicial bodies that opposed the issuance of the law including the meeting of the board of directors of

by the president, they issued resolutions on top of which asking the President of the Republic not to ratify it «for violating the Constitution», however, as soon as the presi-

president, among them the presidents of those bodies. They presented later nomina-tions to the president to choose the heads of those bodies.

pendence, it is illegitimately born? Yes. But can we break it? We cannot break it.

First Vice-President of the State Council, told "Mada Misr": "The judges can only imple-ment the law even if it violates the constitution," he, adding that implementation


alone would reveal whether the law had been prepared to exclude advisers Yahya Dakrouri and Anas Amara from the presidency of the Council of State and the Court of Cassation - respectively - because of their judgments or not.

Commissions Law be suspended and that it should be considered as if it was not issued. He also called for referral of the law to the Supreme Constitutional Court on grounds of unconstitutionality as it violates 25 articles of the constitution, in addi-

president's decision to issue the law because it violates the constitution which obli-ged the Parliament to abide by the limits and powers of each of the three powers of the country (executive, legislative and judicial), in exercising the power of legislation and prohibited issuing legislations that diminish the powers of other authorities, it also holds the President of the Republic to the limits of his powers as head of the executive authority only, and thus, according to Islambouli, the law passed by the Par-liament becomes invalid, same s the president's decision to ratify it as it violates the articles of the judiciary aindependence in the constitution, as well as the articles rela-ted to the powers of the president and the parliament.


nal Court for cancellation. [23]

"What the judiciary has taken to implement the law of selection of judicial bodies respects the separation of powers which the legislative authority did not respect and

mier Dr. Mohamed Abdel Wahab Khafaji. He then added that whenever the law is issued it comes into force, even if it is unfair and can only be impeded by a provision of the Supreme Constitutional Court. The judiciary applies the law from a judicial perspective to respect the principle of seniority by choosing the oldest among the three to preserve the most important principles of the established judicial work. The

judicial work is a way to avoid injustice and harm. It reassures the people of the essence of judicial doctrine: Give me a fair judge and an unjust law and justice will be achieved. [24]

references

judges: it is unconstitutional and we will apply it April 30th, 2017 [24] Al-Bedaiah website: the vice president of the state council: The commitment of the judiciary tothe «Committees Law » shows its development .. And it is a pain for us to use sone terms «commit and grovel» May 1, 2017 http://albedaiah.com/news/2017/05/01/134621


tions in the amendment, which are:

1. Independence of the judicial function from the executive branch: In this regard, the United Nations Human Rights Council considered that any situa-

judiciary and the executive authority, or in which the latter controls or guide the former violates the principle of independence, as for the European jurisprudence, a body cannot be considered a court, in the sense that the right to a fair trial is exer-cised, unless it is independent of the executive authority.

2. Institutional independence: The judiciary must be protected as an institution against the interference of other authorities, ie legislative and executive. This independence is related to the system of exercising the judicial function and not to the function itself that includes its own or individual autonomy. This independence is essential. The autonomy of each judge remains limited since the judicial organization allows intervention through gaps in the judicial system, such as the control of the executive authority by appointing judi-

der them, and this is what is happening with this amendment in the law of the judi-ciary, as the executive authority wishes to intervene to select the judges by itself.


III. Recommedations:

poses a set of suggestions1- The executive authority should review its continuous attempts to control the rest

of the authorities, especially the judiciary. The management of states requires the complementarity of powers and not rivalry between them. The President of the Republic must take a more visible position and not only stick to his position as head of the executive branch because in the semi-presidential Egyptian system, the president is the mediator between the authorities, and one of his most impor-tant tasks is to facilitate the rapprochement among them so that they work in har-mony with each other. Democratic Transition and Human Rights Support Center calls upon the President of the Republic, in his capacity as a judge between the three authorities, to prevent the attempts of the executive authority to exert

be held to avoid future clashes, and the judiciary and civil society organizations must be heard regarding their observations on the legislation that organizes the work of the judicial authority, which has recently been approved by the parlia-ment, and put these observations into consideration and try to re-discuss contro-versial items.


support the judiciary in its battle.3- A comprehensive review of all laws relating to the authorities’ interrelationships

(as part of a comprehensive review that must be carried out by the Parliament on all Egyptian laws) must be carried out and revised in accordance with the Consti-tution.

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