While controversial legislation ushered in last year vested President Abdel Fattah al-Sisi with the power to appoint the heads of Egypt’s major judicial bodies, the position of chief justice of the Supreme Constitutional Court (SCC) has remained an exception. Early on Tuesday, Sisi swore in judge Hanafy Gebaly, who was elected by members of the SCC’s general assembly as chief justice, a position he will hold until he reaches 70-years-old — the legal retirement age — on July 13, 2019.
During his tenure, which began on August 1, the new chief justice is expected to preside over decisions relating to judicial appointments and, according to one source, the passage of legislation which may affect the formation of the SCC itself.
In selecting Gebaly to replace former Chief Justice Wahab Abdel Razek with a majority vote, the SCC upheld the custom of electing the court’s most senior deputy, and took advantage of the court’s constitutional right to select its own head from among its three most senior deputies.
Until last year, this right was exercised by most of Egypt’s main judicial bodies. However, on April 27, 2017, Sisi ratified legislation which brought the selection process for the heads of the Supreme Judicial Council, State Council, Administrative Prosecution and Egyptian State Lawsuits Authority (SLA) under executive control. Where, customarily, appointments were made according to seniority, the legislation required the supreme councils of each to nominate three judges from among the seven most senior deputies, with the president making the final selection from this pool of candidates.
Gebaly’s name came to the fore when he issued a ruling in March validating the highly publicized and controversial Tiran and Sanafir agreement and favoring the cession of the islands to Saudi Arabia. The agreement, which transferred sovereignty over the two Red Sea islands to the Gulf kingdom, provoked a protracted legal contest in which different bodies issued contradictory rulings over the agreements validity, raising questions over jurisdiction. The lawsuits authority, the body that represents the state in judicial proceedings, brought a lawsuit before the SCC, asking that it issue a ruling on the dispute. Razek, the former chief justice, recused himself from the case, handing the reins over to then-deputy Gebaly.
Gebaly issued two rulings in the case: He threw out the SLA’s lawsuit and issued a ruling that invalidated all previous verdicts reached in the case by administrative and urgent matters courts. He also coined the term “political practices,” to replace the more commonly used “sovereignty practices,” which is associated with any lawsuit of relevance to international relations between Egypt and foreign countries. In doing so, Gebaly redefined the parties responsible for overseeing the validity of international agreements. Rather than being subject to judicial oversight prior to presidential ratification, international agreements will now be overseen by the government and Parliament. Once the agreement is ratified by the president, only the SCC will be authorized to oversee its implementation.
Gebaly is now required to recuse himself from issuing verdicts on any appeals regarding the constitutionality of the border demarcation agreement that may come up during his tenure as chief justice, as judicial principle dictates that a judge cannot issue a decision in relation to a case they have ruled on before.
Before joining the ranks of the SCC, Gebaly started out as an assistant in the office of the Egyptian Public Prosecution in 1976. He was subsequently transferred to the State Council, where he ascended from an administrative assistant position to a deputy within the administrative judiciary. He joined the SCC in 1983, and then, in 1996, he was appointed to its commissioners authority, which reviews and prepares advisory reports on all incoming cases before they reach the court.
Until he was sworn in on Tuesday, he had served as a deputy at the SCC since 2001. Gebaly was seconded twice during his career, meaning that, in 1988, he was assigned to the National Oil Distribution Company in Qatar, where he served as a legal expert for six years, and, in 2004, he was assigned to the Bahrain Constitutional Court, where he served as a judge until 2011.
Gebaly assuming office coincides with the SCC’s continued review of controversial legislation, most significantly Law 32/2014, issued by former interim president Adly Mansour, which prohibits third parties from challenging or appealing contracts signed between the government and private investors before the administrative judiciary. An appeal was filed against the legislation, and in its recommendation in the case, issued in March of last year, the SCC Commissioners Authority deemed it unconstitutional. As such, the SCC is set to continue looking into the legislation in August.
It is expected that, as chief justice, Gebaly — whose doctoral dissertation was on the necessity of a mechanism that would enable parties wronged by the issuance of a certain law to receive appropriate compensation — will oversee appeals filed by three judges previously slated for top positions in the 2017/2018 judicial year against the amendments to appointment procedures.
Yehia Dakroury, a State Council judge, Anas Emara, a Court of Cassation judge, and Mounir Mostafa, an SLA judge, were all first deputies within their respective bodies and had been expected to be elected as their heads, pursuant to the customary practice of appointment by seniority until the legislation was passed. The State Council nominated Dakroury as their sole candidate in violation of the April 2017 amendments, which require three nominees, leading Sisi to appoint Ahmed Abul Azm in his stead.
How Gebaly rules on this case, should it fall to him, is critical, according to a source who works at the SCC and who spoke to Mada Masr on condition of anonymity, given that Parliament has proposed an amendment to the constitutional article regulating the formulation of the SCC.