A law was issued on the 27th of April 2017 under number 13 for 2017 to amend the selection mechanism of the heads of four judicial bodies in Egypt, namely, the Administrative Prosecution Authority, the State Lawsuits Authority, the Court of Cassation and the State Council.
The amendments mandate on the relevant special committee of each judicial authority to choose three candidates from among the most senior seven deputy-head of the authority and submit their names to the President who will appoint one of them. The amendments do not provide for the criteria upon which the President shall select one of them.
Under the earlier rules, the special committee of the relevant authority was required to select only one candidate from among its deputy-heads and submit it to the President who routinely used to ratify such selection. The tradition was that the most senior deputy-head is the one selected by the judiciary and ratified by the President in what is known as the ‘absolute Seniority’ tradition. The appointment date of the selected candidate was the date of its selection by the special committee rather than the ratification of the President.
According to the new law, the President must be notified with the name of the three candidates at least two months before the termination date of the current head, otherwise the President will directly appoint one from among the most senior seven deputy-head of the relevant authority.
The amendments provide that the appointment will be once during the professional life of the judge and for a maximum period of four years or until reaching the retirement age whichever is earlier.
The Parliament defended the amendments on the basis that the ‘absolute seniority’ is a tradition and not a law, and it did not always guarantee that the best qualified judge is selected specially that sometimes the candidate is not in good health given that the retirement age of judges is 70 years. The supporters also claimed that the independence of the judiciary is not affected by these amendments since the head of a judicial authority is a mere administrative position rather than a judiciary one.
These claims are flawed. The position of the head of a judicial authority has serious and sensitive judicial implications and not a mere administrative job. For example, the head of the State Council, in his capacity and by default, is the president of the Supreme Administrative Court which reviews and decides on the challenges initiated against the decrees issued by the government and the President. He is also the head of the judicial panel which decides on the challenges initiated against the results of the presidential election. To add more, the president of the Court of Cassation, in his capacity, is one of the members of the judicial panel which adjudicate the President in case of impeachment according to Article 159 of the Constitution.
The amendments are clearly tainted with unconstitutionality undermining the principle of independence of the judiciary in administering its affairs stipulated under Article 185 of the Constitution as well as the principle of checks and balance under Article 5 thereof.