Egypt: Unconstitutional  Draft Law on Judicial Authorities Imperils Judicial Independence

Press Statement

The Cairo Institute for Human Rights Studies (CIHRS) unequivocally rejects the Egyptian Parliament’s proposed amendments to the judicial authorities law authorizing President Abdel Fattah el-Sisi to appoint heads of judicial bodies. The tightening of the President’s grip over the judiciary represents an assault on its independence and the principle of the separation of powers;  insofar as genuine judicial independence means independence from the executive and legislative authorities. The amendments constitute clear interference in judicial affairs, which is a crime not subject to a statute of limitations under the Egyptian Constitution.

The proposed amendments of the Parliament’s Constitutional and Legislative Affairs Committee would allow President el-Sisi to select and appoint the heads of the following judicial bodies: State Cases Authority, the Administrative Prosecution Authority, the State Council, and the Court of Cassation. The head would be chosen by the President from among three candidates nominated by the Supreme Council of each body. If the Supreme Council does not submit the names of three candidates 60 days before the date of selection, the President would have the right to select and appoint a person to fill the position from among the seven most senior deputies of the current head of the body, without consulting the council.

These proposals are a flagrant violation of ten constitutional provisions that explicitly uphold the independence of the judiciary, a significant safeguard of which is non-interference by the executive in the affairs of judicial bodies or in the selection of their heads. The Supreme Constitutional Court emphasized the importance of an impartial judiciary in its ruling no. 162/19JY:  “The independence of the judicial authority is necessary to guarantee the objectivity of obedience to the law and to ensure that those who seek refuge in it find the judicial satisfaction they seek when their rights and liberties are infringed.”  Accordingly, selection of judges under the current law is determined solely by seniority, in order to preclude any concessions or favoritism and to dispel any hint of judicial partiality in favor of the executive authority, especially as the executive could be a party to disputes heard by the judiciary.

CIHRS is alarmed by the Parliament’s willful infringement of the Constitution, which will strengthen the executive’s control over the public sphere by legalizing its unconstitutional interference in the operation of all institutions. The proposed amendments also violate Egypt’s international obligations under Article 14 of the International Covenant on Civil and Political Rights, which considers the independence and impartiality of the courts to entail non-interference by any authority in the appointment of judges, the qualifications required for their appointment, their terms of office, and the conditions regulating their promotion, transfer, and dismissal.

Furthermore, the Parliament has usurped the rights of MPs who object to the latitude shown to the executive; either by penalizing them for expressing their opinions or willfully disregarding their objections. The referral of MP Haitham al-Hariri to the Ethics Committee is a case in point. MP al-Hariri was sanctioned in part for his objections to the way the amendments under consideration were discussed. During  an interview al-Hariri stated that the committee’s report included no opinion from the State Council or the Judges’ Club; and was not forwarded to the judicial authority – in violation of the Constitution.

An independent judiciary is a key pillar of democracy, the rule of law, and good governance. It must be supported on the institutional and individual level. As the legislative authority, the Parliament is charged with maintaining—not eroding—judicial independence. It must function as a guardian of the constitutional separation of powers, deterring any who would infringe upon this principle. The proposed unconstitutional amendments sanctioning executive overreach are antithetical to the separation of powers and a severe encroachment upon judicial integrity.