Judicial officials: Constitutional amendments final battleground in struggle for judicial independence
 
 

In a meeting with Middle Eastern and North African general prosecutors in Cairo on Wednesday, President Abdel Fattah al-Sisi once again stressed the importance of judicial independence, asserting that “no one can interfere with the work of the judiciary.”

Yet critics say a set of constitutional amendments making its way through Egypt’s Parliament does precisely that.

Last week, Parliament voted overwhelmingly to advance the amendments, the primary focus of which have been changes that would allow Sisi to extend his term in office until 2034. But the proposed amendments also include a number of other controversial changes, not least of which are revisions to articles that could further undermine judicial independence and erode the separation of powers by giving the president tighter control over the judiciary.

Multiple current and former judicial officials who spoke to Mada Masr characterize the amendments as the final battleground in a years-long seesaw struggle for judicial independence, with one judicial source describing them as a way of “constitutionalizing dictatorship.”

Following last week’s vote, Parliament referred the amendments to the Legislative Affairs Committee, which will open the door to receive comments from citizens and institutions and hold a series of dialogue sessions with relevant stakeholders before delivering a report, including any revisions, to Parliament within 60 days. The amendments will then be put to a national referendum, which is expected to take place before the start of Ramadan in early May.

The amendments include six new provisions related to the judiciary: abolishing independent budgets for judicial bodies; granting the president the authority to select the heads of these bodies — including the Supreme Constitutional Court (SCC) — from five nominees put forth by their high councils; enabling the president to select the prosecutor general from among three candidates whom the Supreme Judicial Council nominates; establishing a Council of Judicial Bodies, to be headed by the president, to dictate the terms of judicial appointments, promotions and delegates; and abolishing the authority of the State Council to review draft contracts in which the state or its subsidiaries is a party, limiting its authority only to review and draft laws referred to it.

A current deputy for the State Council says the proposed changes “would make the new constitution one for military dictatorships, like those of [Jean-Bédel] Bokassa [of the Central African Republic] and Idi Amin [of Uganda].”

A vice president of the State Council, who also heads a circuit of the Supreme Administrative Court, says the amendments were not wholly unexpected, given the track record of Sisi’s first term in office, which included the transfer of the Tiran and Sanafir islands to Saudi Arabia despite a judicial injunction, and the adoption of a law on judicial bodies over judges’ objections. The source stresses the need to mobilize judges to stop the passage of the amendments.

Former Justice Minister Mohamed Amin al-Mahdi, who also previously served as president of the State Council, likens the amendments to a set of decrees issued by former President Gamal Abdel Nasser in 1969, which granted the presidency sweeping powers over the judiciary and came to be known in legal circles as the “massacre of the judges.”

Mahdi stresses the need to organize judicial opposition to the proposed constitutional changes and expects that a number of revisions will be made by the Legislative Affairs Committee during the 60-day discussion period.

Echoing Mahdi’s comments, another State Council deputy says he believes the amendments related to the judiciary will be reversed at the last minute. He argues that the primary objective of the proposed constitutional changes was to extend presidential term limits and that the other amendments were more of a distraction — a way of deflecting debate and discussion to secondary topics, while keeping attention away from the president’s extended rule.

Meanwhile, judge Ali Awad, deputy head of the SCC until 2012, says he was “very upset by the amendments,” but adds that he prefers to leave it to the judges currently in service to comment.

Awad, who served as a constitutional adviser to former President Adly Mansour, tells Mada Masr that any amendments to the Constitution must be preceded by close scrutiny of the language to make sure that they do not contradict existing articles.

A current SCC deputy says the amendments aim to tighten control over all state authorities and subject the judiciary to the whims of the president. He stresses that the judiciary is the only party capable of challenging executive authority and that the proposed amendments shackle the judiciary and render it subservient to the executive.

The law on judicial bodies

The SCC deputy makes note that the amendments come as the Supreme Constitutional Court is considering lawsuits challenging the constitutionality of a hotly contested law on judicial bodies. If enacted, the amendments would transfer provisions of the law to the Constitution, thereby bypassing any court ruling to invalidate it.

President Sisi issued the law on March 28, 2017, which authorizes the president to select the heads of judicial organizations from among three nominees chosen by each body. The law runs contrary to the established seniority rule, which grants leadership to the most senior members of each body. Sisi issued the law against the objections of judicial authorities and against the legal recommendation of the Legislative Department of the State Council, which suspected that most of its articles would be deemed unconstitutional.

At the time, some judicial officials speculated that the law came as a direct response to a series of rulings unfavorable to the government that were handed by specific judges, including Yehia al-Dakrouri, who ruled to nullify the Tiran and Sanafir agreement, and Anas Omara, the former first deputy of the Court of Cassation, who ruled to nullify death sentences until authorities investigate the National Security Agency.

Dakrouri and Amara later challenged the law on judicial bodies through the Supreme Administrative Court and the Court of Cassation on November 26, 2017, and March 19, 2018, respectively and filed two lawsuits in the Supreme Constitutional Court, which are still pending.

The Council of Judges: A historical struggle

The proposed constitutional amendment to establish the Council of Judicial Bodies (CJB) – headed by the president, who would be able to dictate the terms of judicial appointments, promotions and delegates – has a long historical precedent that weaves through the shifting struggle of judicial independence in Egypt over the last few decades.

In 1969, Abdel Nasser established a Supreme Council of Judicial Bodies (SCJB) council as part of the so-called “massacre of judges.” The idea emerged after Egypt’s defeat in 1967, when the Revolutionary Command Council officers moved to dominate all branches of government, including the judiciary, a third deputy at the State Council explains to Mada Masr.

Abdel Nasser issued five decrees: revamping the judiciary to ensure the removal and transfer of judges accused of hostility to the regime to non-judicial functions, dissolving the Judges Club’s board of directors, forming a committee of loyal judges to assume its administration, establishing the Supreme Court (which later became the SCC), and granting the president the authority to transfer and appoint judges. Lastly, Nasser established the SCJB under his chairmanship, with the justice minister as deputy, and included the chairpersons of Egypt’s five judicial bodies.

The SCJB had a sweeping mandate, including deciding on judicial appointments, promotions, and budgets.

According to the deputy at the State Council, judges remained subordinate to the SCJB until 1984, when former President Hosni Mubarak issued Law 35/1984 that abolished the council and created the Supreme Judicial Council (SJC) in its stead. The composition of the SJC remains the same today: headed by the president of the Court of Cassation and its membership comprising the president of the Cairo Court of Appeals, the prosecutor general, the two most senior deputies of the Court of Cassation and the two most senior heads of the other appeals courts.

The 1984 law essentially handed authority back to the judiciary by granting the SJC the powers of appointment and promotion, and amended all other related laws regulating the judiciary, such that each body hosted a high council to manage its own affairs.

The structure remained in place until 2008, when Mubarak issued a law to establish the Council of Judicial Bodies, which would confer the same powers over the judiciary to the president as Nasser’s SCJB. The council would be led by the president and the minister of justice as deputy, but its membership would be limited to the heads of judicial bodies and the prosecutor general only. However, the council was suspended following objections from the general assembly of the Judges’ Club, which described it as “sapping the independence of the judiciary.” It was later fully dissolved after the ratification of the 2014 Constitution, which affirmed the independence of judicial bodies from the Ministry of Justice, both financially and administratively, and granted the high judicial councils authority over their internal affairs.

This past December, the saga took yet another turn when President Sisi announced the revival of the CJB in a meeting with the heads of the judicial authorities in the presence of the justice minister, his deputy, and the prosecutor general. The council would hold bi-monthly sessions to discuss issues of mutual concern to judicial bodies and propose solutions and implementation mechanisms. The CJB would, once again, be headed by the president.

Not everyone is opposed to the CJB. Judge Abdel Sattar Imam, a member of the board of directors for the Judges Club of Egypt, tells Mada Masr that he strongly supports reviving the CJB and that its role involves coordinating between various judicial institutions in matters of common interest.

But the proposed constitutional amendments submitted to Parliament in February go one step further, by enshrining the CJB in the Constitution.

“The Council of Judicial Bodies has acted as the presidency’s leverage over an independent judiciary in most of the battles between judges and the executive authority under Abdel Nasser and Mubarak, and most recently, Sisi,” the State Council deputy tells Mada Masr. He adds that Sisi is not only looking to reactivate the council but to “constitutionalize” it to ensure its application throughout his time in power, and avoid any potential ruling that could deem its provisions unconstitutional.

The proposed changes have sparked opposition outside of the judiciary as well, with 11 rights organizations in Egypt “unequivocally” rejecting the amendments in a joint statement, saying they “eliminate all remnants of judicial independence.”

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