Since April 27, 2017, when the passage of Law 13 of 2017 introduced sweeping changes to how the heads of judicial bodies in Egypt are chosen, some Egyptian judges have challenged what they see as an attempt to control the judiciary. The law granted the president of the republic a discretionary power for selecting, without review, the chief justices of the judiciary, revoking the neutral clear criterion of seniority, which has been in place for decades.
The appeal against the law itself went to the Supreme Constitutional Court on Nov. 27, 2017, which will start hearing the case on Feb. 17, 2018. Although the Egyptian judiciary is in dire need of reform, neither judges nor civil society support these changes to the long-standing principle of seniority.The Egyptian judiciary is multijurisdictional, meaning that the judicial branch is comprised of multiple bodies independent from one another, each with its own jurisdiction and powers. The constitutional judiciary, represented by the Supreme Constitutional Court, exclusively addresses constitutional cases. The administrative judiciary, also named the State Council and headed by the Supreme Administrative Court, considers cases stemming from decisions made by the executive branch. Finally, the general judiciary, headed by the Court of Cassation, takes up all other types of disputes, including criminal, civil, family, commercial and labor cases.
Particularly within the general judiciary and the State Council, it has been the long-standing judicial norm since the establishment of the Egyptian judiciary to consider seniority as the fundamental standard for promotions within the judicial system, including to top-level positions. The most critical top-level positions to which this applies are the chief justice of the Court of Cassation, founded in 1931 within the general judiciary, who simultaneously serves as head of the Supreme Judicial Council, which is responsible for managing all general judiciary’s affairs; and the head of the State Council, established in 1945, who also serves as chief justice of the Supreme Administrative Court. Although the practice can open the door for incompetent leadership at times, judges have long viewed the principle of seniority (which is mentioned in Articles 159 and 209 of the Egyptian Constitution) as a strictly neutral principle for promotion, ensuring that judges focus on their legal work instead of being dragged into partisanship and competition over positions.
In this context, Law 13 of 2017 amended both Law 46 of 1972 on the judiciary (which regulates the general judiciary) and Law 47 of 1972 on the State Council to abolish the principle of absolute seniority. The law created a new mechanism wherein the Egyptian president has the sole power, without approval or review from any other authority, to appoint the chief justice of the Court of Cassation (the Supreme Judiciary Council per se) from among three nominees put forward by the Supreme Judiciary Council, as well as to appoint the head of the State Council (the chief justice of the Supreme Administrative Court) from among three nominees put forward by the State Council’s general assembly.
Judicial reform has long been a top demand of political movements and civil society in Egypt, even decades before the Arab Spring. Despite the critical role the judiciary has historically played as an institution, it remains in dire need of reform, particularly after the January 2011 revolution. Proposed and debated reforms have included modernizing and automating litigation procedures to help solve the infamously slow pace of trials – a perpetual problem dogging the Egyptian court system – and to train judges to improve their professional competence and support their individual and institutional autonomy. However, the many reform proposals never included granting the Egyptian president such a discretionary power over the process of selecting the State Council and the Court of Cassation chief justices, raising suspicions as to the real objective of Law 13 of 2017.
Since the Egyptian Parliament announced in December 2016 that the bill was under discussion, judges, some political forces and a number of NGOs have expressed their dissent.
Opposition to the bill focused primarily on how it would undermine judicial independence and control the judiciary’s leaders through the appointment process, while also casting aside the long-established historical principle of seniority, which had ensured the judges were nonpartisan and bound to a rigid standard for promotions and appointments. Moreover, implementation of this law would create space for partisanship and factions among high-ranking judges to back one nominee over another, which would be a completely alien development within the Egyptian judiciary.
Despite the law’s importance to the judicial authority, which would ideally require sufficient study and discussion, the House of Representatives handled the bill in a way that triggered many doubts. Under the Egyptian constitution, the bill should have been sent to the Supreme Judiciary Council for feedback, which did not happen. Furthermore, the State Council’s legislation department, which has jurisdiction to offer its legal opinion on parliamentary bills, expressed its complete rejection of the bill as flagrantly unconstitutional. Parliament also ignored the statements issued by the judges’ clubs (syndicates) condemning the bill. Finally, according to one member of Parliament, the parliamentarians themselves were caught by surprise when the bill was introduced in a general session without being announced beforehand, and the 25-30 Coalition, a loose alliance of independent members of Parliament that acts as the parliamentary opposition, were denied the request to discuss the bill. Instead, the bill was rushed to a vote, even though it was unclear at the time that the necessary quorum was present, then passed and signed into law by the president, all in a matter of hours.
After the bill officially became law on April 27, it was implemented less than two months later, when the head of the Court of Cassation was set to retire by the end of June 2017. Under the new law, the Supreme Judiciary Council then put forth three nominees, but chose the three most senior deputies among its members, meaning that the council continued to stick to the seniority rule. Using the authority granted him under Law 13 of 2017, President Abdel-Fattah al-Sisi bypassed the oldest deputy, Anas Emara, and chose the second-oldest deputy, marking the first time in the history of the Egyptian judiciary that the principle of seniority had been broken in selecting the chief justice of the Court of Cassation.
When the then-State Council’s President Mohamed Masoud was set to retire in June 2017, the State Council judges were more explicit in their rejection of the new law. When their general assembly convened on May 13 to select three nominees to send to Sisi, they instead chose to send a single name, that of the most senior deputy, Yehia Dakroury, who would have been in line for succession under the old seniority-based system. This was a gauntlet thrown to Sisi, who promptly responded by appointing Ahmed Abul Azm, the fourth-oldest judge, skipping the three most senior deputies. Many observers believe that this was a way to override the appointment of Dakroury, who had issued a number of judicial rulings that could be read as anti-regime. The most significant ruling was on June 21, 2016, when Dakroury’s Court of Administrative Judiciary voided the controversial agreement that had redrawn the maritime border with Saudi Arabia to give Riyadh possession of the islands of Tiran and Sanafir. Only a few weeks before this ruling, Sisi had issued a statement requesting everyone within Egypt not to talk about the two islands again because the decision to transfer sovereignty to Saudi Arabia had already been made.
In fact, legislating Law 13 of 2017 came as a surprise, for the Egyptian judiciary has always been considered an essential pillar of the Egyptian state and had used its various courts to stand up to former President Mohammad Morsi and the Muslim Brotherhood government. This led many to view the Egyptian judiciary as being a crucial ally and partner of the military regime. In this context, Law 13 of 2017 can only be understood as a clear message to the judiciary – and to the political and social forces behind it – that the ruling regime keeps no true partners, and only Sisi is in control.
The battle over Law 13 of 2017 is not yet done, as opposition to it has reached courthouses. Judges Dakroury (the first deputy of the State Council) and Emara (the first deputy of the Court of Cassation), both of whom were overstepped when Sisi made his appointments, filed the appeal against the president’s decisions that is now awaiting the decision of the Supreme Constitutional Court as to whether Law 13 of 2017 is constitutional. It is expected that the court will strike down the law as unconstitutional when it meets in February, meaning that the president’s appointments based on the law would also be illegitimate. This would present a major challenge to Sisi’s regime, which leans heavily on control and subjugation to govern domestically. The regime may have miscalculated when it jumped into a battle with one of the oldest, most venerated Egyptian institutions. The judiciary can put up a fight to defend itself, which will have repercussions to come.
Yussef Auf is an Egyptian judge, a nonresident fellow at the Atlantic Council’s Rafik Hariri Center, and a Middle East and North Africa research fellow at the Max Planck Foundation for International Peace and Rule of Law in Germany. This commentary, translated from Arabic, first appeared at Sada, an online journal published by the Carnegie Endowment for International Peace (www.carnegieendowment.org/sada).
A version of this article appeared in the print edition of The Daily Star on January 20, 2018, on page 7.