Egypt

Cairo, 11^th June 2008

Egypt: The draft law on the Council of Judicial Bodies

is a new violation of judicial independence

The Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) has several remarks on the draft law on the Council of Judicial Bodies. The law, which organises the work of the judiciary, is of a special importance. The judiciary is charged with taking the final decision in matters concerning citizens’ lives, freedoms, rights and property. It is thus essential that the judicial branch enjoy complete autonomy in all matters pertaining to its members.

The creation of a council for judicial bodies has a constitutional basis under article 173 of the Egyptian Constitution, and there is therefore no objection in principle to the establishment of such a council. However, the draft law in its current form suffers from a number of serious flaws clearly in violation of both the Constitution and the Judicial Authority Law. These flaws also conflict with international human rights instruments, in particular the United Nations Basic Principles on the Independence of the Judiciary, in the following ways:

• Article 1 of the draft law which deals with the competencies of the planned council is formulated in vague terms and does not clearly delineate the council’s powers. This could lead to judicial matters concerning the ordinary or administrative judiciaries (such as transferral, appointment, promotion, relocation and discipline) being regarded as matters which concern the judicial bodies, allowing the executive branch embodied in the Minister of Justice to interfere inappropriately in matters which are purely judicial. This would undermine the principle of the separation of powers and violate judicial independence.

• The passing of the draft law in its present form represents a clear attack on the competencies of the Supreme Judicial Council and the Council on Administrative Affairs within the State Council, as well as courts’ general assemblies and the General Assembly of Lawyers. This undermines the independence of these councils and general assemblies.

• The passing of the draft law in its current form and with its vague language will strip of meaning the amendments made to the Judicial Authority Law 142 [2006]. It appears as if the guarantees given to the judiciary through these amendments will be obliterated by the draft law.

• ACIJLP proposes that the competencies of the council be clearly delineated, and that its competencies be limited to giving its opinion about draft laws organising shared judicial matters and embodied in legislation concerning social and health care, court structures and the preparation of studies and research related to the strengthening of justice and judicial independence.

Article 2 of the draft law

• ACIJLP is of the opinion that the Minister of Justice should not be allowed to join a council whose membership is restricted to the heads of independent judicial bodies.

• As a representative of the executive branch the Minister of Justice should not – according to article 3 of the draft law – head a council composed of the heads of Egypt’s high courts (the Cassation Court, the Supreme Constitutional Court and the State Council) because this effectively puts an end to the independence of these bodies and makes them subservient to the Minister of Justice.

• The Constitutional Court and its heads must be removed from this formation in order to ensure the complete liberty and independence of the Supreme Constitutional Court and enable it to carry out its supervisory role and monitor the constitutionality of legislation as described in article 175 of the Constitution.

• ACIJLP believes that the presence of the head of the Cairo Appeal Court within this formation on an equal footing with the head of the Cassation Court and the head of the Supreme Judicial Council lacks transparency and is a transgression of both judicial customs and the provisions of article 173 which provides that this council is for the independent judicial bodies which it represents in the ordinary judiciary of the Cassation Court and the administrative judiciary of the State Council.

• The presence of the State Cases Body and the Administrative Prosecution Office within this formation is not in accordance with sound legal principle since the Council should not bring together a representative of the government’s defence and its assistants with the heads of judicial bodies charged with hearing disputes in which the government is a party.

• ACIJLP proposes that the President of the State heads this Council and that either the head of the State Council or the head of the Cassation Court – whoever is older – replace him whenever he is absent, or the head of the Supreme Constitution Court where it is decided that he will remain within the structure of this Council.

Article 4

• Concerning the legitimacy of the Council’s issuing of decrees and voting on these degrees, the draft law as it stands at the moment guarantees the executive branch embodied in the Minister of Justice five votes to members of the executive branch. The Council is as a result stripped of its neutrality, and this raises many causes for concern about the percentage stipulated for the validity of decrees issued by this Council.

• As it stands at the moment, the draft law gives the Minister of Justice the ability to issue any decree affecting a judicial body and to interfere in its affairs without the agreement of the head of this body or even requiring the latter’s presence during discussions concerning this decree.

• The draft law fails to specify a legal mechanism enabling the members of the judicial bodies concerned in the matter to enter on a course of appeal against the decision taken against them. This shields decrees taken by the Council from judicial supervision, in violation for article 68 of the Egyptian Constitution.

Article 5

• The draft law puts in place a general secretariat headed by the 1^st assistant to the Minister of Justice, which lends this Council an executive character as is embodied by the Minister of Justice’s membership of this Council and his heading it in the event of the President of the State falling absent and the fact that the Council’s general secretary – the 1^st assistant to the Ministry of Justice - answers to the Minister of Justice

Conclusion

ACIJLP considers that the draft law as it has been presented represents a flagrant violation of the principle of the independence of the judiciary and undermines the guarantees of judicial independence. In addition – and this is what is remarkable – it annuls the guarantees granted to the judiciary under the most recent amendments to Judicial Authority Law 142 [2006] issued on 29^th June 2006.

ACIJLP also believes that this draft law clearly infringes the rights and guarantees of the judiciary and their supreme body, and is an infringement of the standing and independence of the judiciary by the executive branch embodied in the Minister of Justice. It represents a consolidation of the executive branch’s control of the judicial branch.

ACIJLP believes that it would be advisable to present the draft law to Egypt’s judiciary for consultation on their opinion of the law which will organise their profession. The law’s provisions address the judiciary who, through the exercise of their profession, are most able to understand the minute details which could either support or undermine their independence.

“Governments must protect and respect within the framework of their national legislation and practices, the basic principles of the independence of the judicial branch…” – this is according to the prologue of the United Nations Basic Principles on the Independence of the Judiciary. The first article of the Basic Principles is also worthy of attention. It states: “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”

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