New legislation threatens judicial independence in Egypt

A new law passed by parliament last night, granting the President the power to appoint the most senior members within the justice system, could further undermine the independence of the judiciary in Egypt, Amnesty International said today.

If ratified by President Abdel Fattah al-Sisi, the law would grant him powers to select the heads of judicial bodies, including the heads of the Court of Cassation, the State Council, the Administrative Prosecution Authority and the State Lawsuits Authority.

“This law has the potential to undermine the independence of the country’s already beleaguered judiciary and, if ratified by the President, could be a major setback for justice in Egypt. It would grant the Egyptian President the power to select the heads of country’s top judicial bodiesand could weaken key checks and balances in an already unjust system,” said Najia Bounaim, North Africa Campaigns director at Amnesty International.

“Through this law, the state is seeking to further consolidate its grip on power and neuter two of the highest courts who have at times acted as a check on the executive.”

Previously, Egypt’s judicial councils had the power to appoint heads of the different branches of the justice system. The name of the selected candidate was then passed to the President who would issue a decree confirming the appointment as a formality – effectively, the final decision still rested with judicial councils. Under the proposed amendments the President will have the power to select the heads of judicial bodies from a pool of three senior judges nominated by their peers from the most seven senior members in each judicial body.

The bill was passed on 26 April after two thirds of parliament members voted in favour of the amendments.  Several judicial bodies, including the State Council, the Supreme Council of Judiciary and the State Lawsuits Authority, had formally registered their opposition in advance of the parliamentary vote.

 

This law has the potential to undermine the independence of the country’s already beleaguered judiciary and, if ratified by the President, could be a major setback for justice in Egypt
Najia Bounaim, Deputy Director for Campaigns at Amnesty International's Tunis regional office

 

Previously, Egypt’s judicial councils had the power to appoint heads of the different branches of the justice system. The name of the selected candidate was then passed to the President who would issue a decree confirming the appointment as a formality – effectively, the final decision still rested with judicial councils. Under the proposed amendments the President will have the power to select the heads of judicial bodies from a pool of three senior judges nominated by their peers from the most seven senior members in each judicial body.

The bill was passed on 26 April after two thirds of parliament members voted in favour of the amendments.  Several judicial bodies, including the State Council, the Supreme Council of Judiciary and the State Lawsuits Authority, had formally registered their opposition in advance of the parliamentary vote.

After the amendments were passed, Egypt’s Judges Club issued a statement urging the President not to ratify the amendments and invited judges to an urgent general assembly on 5 May to protest against the amendments. The State Council Judges Club also issued a statement condemning the new law and sent a letter to the President urging him to refrain from accepting it on the basis that it undermines the independence of judiciary and the principle of separation of powers.

Two of the highest courts in the country, the Court of Cassation and the Supreme Administrative Court will be particularly affected by the new law. They were considered by many in Egypt’s legal community as the last hope of keeping the injustice that has characterized the judiciary for years in check.  

The Court of Cassation has overturned a number of mass death penalty sentences on the grounds that courts of first instance failed to establish individual criminal responsibility and found their sole reliance on investigations conducted by the National Security Agency to be insufficient evidence.    

The Supreme Administrative Court, which is responsible, among other things, for reviewing actions and policies of the executive authority in cases relating to human rights violations, has made several independent decisions in defiance of the government. In January 2017, it overturned a government agreement that granted ownership of two islands in the Red Sea to Saudi Arabia.

Since July 2013, the Egyptian authorities have taken several measures that have undermined the independence of the judiciary, seeking to transform courts into tools of repression against critics of the government. These measures have included holding trials and interrogations in locations controlled by the Ministry of Interior, such as prisons, police stations, police academies and security forces camps. In 2014, the General Assembly of Cairo Appeal Courts also established special judicial chambers to try individuals involved in unauthorised protests or violence. These chambers have sentenced hundreds of individuals to death or life imprisonment through mass trials that failed to uphold even the minimum fair trial standards. 

For years successive Egyptian governments have sought to interfere with the judiciary by promoting or disciplining members of the judicial authority. The Minister of Justice, who is a member of the executive authority, also enjoys broad powers to refer judges for disciplinary measures.

Over the past three years, a number of judges have faced disciplinary measures for peacefully criticizing the government. Many judges were forced to retire after being accused of involvement in political activities, which is banned under article 73 of the Judicial Authority law.

Two judges, Hisham Raouf and Assem Abdelgabar, were referred to a disciplinary board in march 2017 by the Minister of Justice for participating with an Egyptian human rights group in a workshop to draft a law on torture. On 28 March 2016, a Supreme Disciplinary Board forced 32 judges into retirement after they signed a statement on 24 July 2013 opposing the overthrow of former president Mohamed Morsi.

Disciplinary measures against judges appear to have been applied in a discriminatory manner with those who have voiced opinions in favour of the government escaping punishment.