Recommendations on The Conference on the Egyptian independence of the judiciary between Constitutional Protection and the Judicial Authority Law

Cairo, on 18^th March 2012

 

Recommendations on

The Conference on the Egyptian independence of the judiciary between Constitutional Protection and the Judicial Authority Law

First: the new Constitution

1.    Referring the presidential decree declaring a state of emergency to judicial supervision and not enable him to refer any type of lawsuits to special or Exceptional or military Courts.

2.    The new Constitution should provide for not immunize administrative decisions or any action to appeal before courts.

3.    Drafting a chapter in the new Constitution for the Judicial Authority Law, regulated the provisions and the basic rules agreed upon as a unified provision which brings them all together, and not to organize each department separately ordinary courts or the Constitutional Court or the State Council, as was the case in the 1971 Constitution.

4.    To explicitly provide for the right of the Judicial Authority to independent budget and to identify its resources and how it was spent so that there is no room for its cancelation or decreasing its value or resources as a means of pressure on the Judicial Authority.

5.    To provide for the jurisdiction of "the Judicial Authority" represented in its Supreme councils in all the affairs of its members such as appointment, or training or transfer or promotion or inspection or discipline.

6.    Abolition of all the power or authority of the president of State, or the Minister of Justice in any affairs relevant to "justice". Thus, The Ministry of Justice should become Ministry of State responsible for coordination between the executive and the judicial authority.

7.  Abolition of the so-called Supreme Council of Judicial Bodies or at least restructuring it so that it will be headed by the oldest president of judicial bodies with the possibility to add members as representatives to the public, such as law professors, lawyers or to add members elected from the general assemblies of each judicial body.

8.   Prohibit and criminalize all forms of influence on members of the Judicial Authority whether in the form of secondment or political or administrative positions in various state agencies.

9.   The constitution should provide for the right of the citizen to litigation before the ordinary judge, prohibit trial of civilians before special or exceptional or military courts and limit the role of military courts to military personnel only, without extending to the trial of civilians in any way.

10.                The Constitution provides for the independence of the military judiciary and to draft a special law for the military councils to indicate its applied terms of reference and conditions and the conditions to be fulfilled by those who are responsible for it. These councils should have jurisdiction only in military crimes committed by those who belong to the armed forces. The president and his deputy should not be responsible for the ratification of the verdicts issued by military courts.

11.                The necessity to exclude any constitutional provision on the contribution of the people in achieving justice, particularly because such provisions, were one of the reasons for the adoption of court of values system ​​which is definitely one of the forms of exceptional courts witnessed by Egypt over the past forty years. The formation of such courts includes the introduction of public non-judicial figures in order to adopt the principle of popular participation in the judiciary.

12.                 The constitution should avoid provisions related to the fact that "The law regulates the order of the State Security Courts and indicates its terms of reference and the conditions to be fulfilled by those who occupy judicial positions".

13.                The Constitution should provide for the formation of a higher committee for all elections and referenda that take place in Egypt, as this makes unified implemented rules and leads to its stability and also allows them to rehabilitate cadres to carry out the supervision of the elections.

14.                The Constitution should provide for the right to freedom of political parties under the supervision of ordinary courts, the independence of trade unions and civil society institutions, the freedom of publication of newspapers, the ownership of the media outlets and the liberalization of its agencies from the control of the executive authority.

15.                Lack of referral to the ordinary laws and legislation, when providing for the freedoms and rights in the Constitution.

16.                Reaffirming the principle of personal penalty, and that no crime or penalty except by law, and prohibiting issuing judgment in penalties and crimes without applying "law".

17.                 Emphasizing the high value of the presumption of innocence and guarantees of fair trial and the right of defense.

18.                Prohibiting the authorization of executive authority in the performance of a legislative role.

19.                The Constitution should provide for the crime of forging the will of the voters in any electoral process because instigating or participating in it is considered a crime which is not lapsed to protect the will of the voters and to activate the political life.

20.                The Constitution confirms the State's respect and guarantees of the implementation of effective judicial provisions.

Second: the recommendations of the Judicial Authority Law:

1.    The need to pass unified legislation for the Judicial Authority Law regulates all work within the judicial bodies, whether the ordinary or administrative or constitutional courts in order to unify the methods of appointment in the judiciary.

2.    Abolition of all the power or authority of the president of State, or the Minister of Justice in any affairs relevant to "justice". Thus, The Ministry of Justice should become Ministry of State responsible for coordination between the executive and the judicial authority.

3.    Emphasize the importance of selecting the public prosecutor elected by the Supreme Judicial Council provided that to chose him from among:

-      One of the Vice-Presidents of the Court of Cassation

-      Presidents of the Court of appeal of Cairo

4.    One of the public prosecutors provided they have exercised this position for 4 years.

5.    Complete separation between the prosecution authorities in the investigation or indictment or the judiciary and limiting it to indictment only.

6.    The standard of efficiency is the difference between the applicants to hold judicial offices and the need to establish a judicial Academy to hold competitions for the appointment then undertake the task of training and rehabilitation of the judges.

7.    The committees that conducted competitions of appointment should be composed of judges, law professors, lawyers and public figures to share their experiences.

8.    The applicants should be interviewed by tripartite committees before the Committee of Seven. Such committees are composed of member of the Vice-President of the Court of Cassation, Vice-President of the Appeals Court in Cairo and a public prosecutor.

9.    Excluding the power of the President of the republic and the Minister of Justice from the decisions of the appointment. Moreover, the appointment of judges and prosecutors should fall under the jurisdiction of the Supreme Judicial Council.

10. Canceling all investigations about the applicants except for criminal investigation.

11. The exclusion of any provision which guarantees the President or the Minister of Justice the right to exercise any actual authority over the judges.

12. The new law should provide for all the safeguards that protect the independence of judiciary in matters of appointment, secondment, and assignment to be in all judicial offices according to the efficiency and the necessity. Such decisions should be issued by the Supreme Judicial Council.

13. The new law should provide for promotion according to the criterion of efficiency.

14. The law should guarantees the right to fair trial for the judges during their accountability and discipline procedures and the subordination of judicial inspection to the authority of the Supreme Judicial Council.

15. The new law should guarantee the right of the judge to request the presence of lawyer in the investigation conducted with him as well as the right of access to investigations.

16. Determining the right of judges to form associations, organizations and clubs and making such associations, organizations and clubs subject to financial control of the Central Auditing Organization.

17. Identifying the final age of the appointment in judiciary of sixty-four years after referral to pension and take advantage of these cadres in the Judicial Academy in order to give the opportunity to other cadres.

18. Amending the provisions of the law on freedom of opinion and expression for judges and to explicitly provide for the right of every judge to freedom of expression as long as they behave in an attitude which preserve the dignity and impartiality of the judiciary.

19. The law should provide for the inability to appointment judges in any executive positions only after four years from leaving the judicial work for any reason.

20. The law should provide for the appointment of a quarter or more than one-quarter of lawyers in the judiciary and activate this provision in the Judicial Authority Law.

21. The introduction of new provisions and mechanisms more effective for the supervision of public prosecution on prisons.

22. Canceling all matters relevant to lawyers in the Judicial Authority Law due to the existence of law for lawyers which regulates the work in the legal profession.

These recommendations are concluded through the research papers submitted by judges, law professors, lawyers and activists in the field of human rights and through the interventions included in the conference on "the Egyptian independence of the judiciary between Constitutional Protection and the Judicial Authority Law" organized by The Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) on 17^th March 2012. The conference held shortly before the People's Assembly's discussion to the Judicial Authority Law and preparation for the constitution of the Arab Republic of Egypt. The conference also came after what was raised recently in Egypt such as the events that indicated the extent to which the breach and violation of the independence of the Egyptian judiciary and improper interference in the judiciary work.

200 participants participated in the conference through their interventions and discussions. The conference discussed many topics including the manifestations of interference and violation of the independence of the Egyptian judiciary, visions and perceptions in order to eliminate violation of the independence of the judiciary and the effectiveness of slow proceedings, failure to implement judicial judgments, interfering in many matters relevant to purely judicial issues starting from the appointment of prosecutors and the Attorney General and the hegemony over the judicial affairs such as transfer, assignment, promotion and secondment. In addition to, discussing the mechanisms of the new Constitution and Judicial Authority Law, more precisely ensuring the independence of the judiciary and the judicial authority, the requirements for amending many legislation governing the judiciary in line with international standards, integration and dissemination of human rights culture in educational and formative system of judges and the involvement of civil society and political parties in strengthening the independence of the judiciary. The conference also aimed at discussing the mechanisms to immunize judges physically and cognitively against any interventions or violations of any of their independence and give them the right to form trade unions and professional associations as a way for protecting them, defending their rights and improving their professional performance.