On April 27, President Abdel Fattah el-Sisi ratified the Judicial Bodies Law No 13 of 2017, a day after Egypt’s House of Representatives issued its final approval of the law. By so doing, Egypt‘s authoritarian regime has taken an additional step towards full subordination of state institutions, rendering them completely submissive to the military-security ruling establishment.
In this case, the parliament, in reality, serves as a mere tool utilised to crush the judiciary and repudiate the principle of separation of powers, stipulated in the 2014 Constitution, and which has been upheld by a series of rulings of the Supreme Constitutional Court and administrative courts.
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The Judicial Bodies Law enables the executive branch – represented by the president – to encircle the judiciary, and grants the presidency the power to appoint key judges.
The law stipulates that the High Councils of the following judicial bodies – the Administrative Prosecution Authority, the State Lawsuits Authority, the Judiciary Law and the State Council Law – must each nominate three of the seven most senior judges and send these nominations to the president, who will then appoint the new chiefs.
Thus, the executive branch has become the most prominent actor in determining the leaders of Egypt’s judicial authorities. By virtue of these appointments, the judiciary has become an arena for expanding the power of the president and, in tandem, the power of the country’s omnipresent military, security, and intelligence institutions.
The powers of the High Councils of various judiciary authorities have shrunk and the objective rule of judges’ seniority is now subject to the ruler’s whims and devices. The independence of the judiciary has been thrown into the abyss.
The laws expand the executive branch’s ability to hunt down, torture and exact revenge on opponents and those with different views, employing imprisonment to do so.
Of course, suspicions of unconstitutionality have followed the passage of Law No 13 of 2017. A report by the Legislative Division of the State Council on the law indicates that it violates Article 5 of the constitution.
Article 5 stipulates that the political regime in Egypt be based on political and party pluralism, the peaceful transfer of power, the separation and balance of powers, the principle of accountability of public officials and respect for human rights and freedoms.
The report also refers to the contradiction between the law and constitutionally established rules for the appointment of the chief justice of the Supreme Constitutional Court and the prosecutor general.
Article 193 of the Constitution stipulates that the Supreme Constitutional Court be composed of “a president and a sufficient number of vice-presidents”.
Regarding the General Prosecution, Article 189 of the Constitution states that: “The Public Prosecution is an integral part of the judiciary. It is responsible for investigating, pressing charges and prosecuting all criminal cases except what is exempted by law”.
The authority to appoint the chief justice of the Supreme Constitutional Court or the prosecutor general thus belongs to the High Councils of the relevant judicial authorities, not the president of the republic, who merely holds the nominal authority to sign off on appointment decisions.
However, any individual who has observed how Sisi’s authoritarian rule has been using legislative tools to subjugate state institutions since 2013 will quickly recall the Oversight and Independent Agencies Law No 89 of 2015. This law was issued as a presidential decree law on June 11, 2015, before the parliament was convened, and was later ratified by parliament after it was convened in January 2016.
This law grants the president the power to terminate the heads of oversight and independent agencies whenever he wishes.
The legislation, which applies to the Central Auditing Organisation, Central Bank, Administrative Control Authority and Egyptian Financial Supervisory Authority, was utilised on March 28, 2016, to dismiss the former head of the Central Auditing Organisation Hisham Geneina.
Geneina made himself many enemies in the powerful military-security establishment by systematically exposing its implication in corruption.
Since the law was passed and its provisions applied to punish Geneina, it has proved a very malleable tool in the hands of the president to intervene in the work of oversight and independent agencies, bending them to the will of the executive branch, although the constitution stipulates that this branch be subject to oversight.
Any individual who has observed the authoritarian regime’s use of legislative tools will also quickly discover that sabotaging judicial independence, undermining constitutional principles and tampering with entities such as the Central Auditing Organisation all fall under a broader context of issuing new laws and passing legal amendments.
The aim is to empower the military-security establishment within the state apparatus vis-a-vis the civilian institutions, as well as to reformulate the state-society relationship to restore tyranny after the brief democratic opening 2011-2013.
Since the summer of 2013 until the present, more than 400 new laws and legal amendments have been passed successively by Interim-President Adly Mansour, the current president, and the current Parliament.
Many of these laws and amendments have – first and foremost – expanded the powers of military, security and intelligence institutions at the expense of civilian institutions.
Examples of this include the amendments to the Military Facilities Law passed in October 2014, that are far-reaching in terms of allowing civilians to be referred to military courts, the Terrorism Law passed in February 2015, which includes stipulations that individuals and entities may be added to the terror list without a standardised process of litigation.
These stipulations breach several rulings of the Administrative Judiciary and the Court of Cassation, that require litigation for inclusion on the terror list and do not consider mere governmental resolutions or the bilateral resolution mechanism of the General Prosecution and Chambers of Counsel in the Courts of Appeal, cloaked in an artificial judicial stamp, to be sufficient.
There is also the NGO law which was approved by the parliament in November 2016 but is yet to be ratified by the president. It refers supervision and oversight of the work of non-governmental organisations and associations to military and security institutions while simultaneously completely restricting the role of the (civilian) Ministry of Social Solidarity.
Some of these laws and amendments have, secondly, innovated additional tools for the authoritarian regime to subordinate state institutions, diminish citizens’ constitutionally stipulated rights and freedoms and enforce silence across society.
The Judiciary Bodies Law, and before it the Oversight and Independent Agencies Law, contain clear evidence of a subordination of civilian institutions and further intrusion of the executive branch, represented by the president.
Laws such as the anti-protest law issued in November 2013 (and amended in December 2016 following a Supreme Constitutional Court ruling), and amendments such as those made to Article 78 of the Penal Code passed in September 2014 (as well as the Terrorism Law and the NGO Bill), undermine citizens’ rights to freedom of opinion, peaceful gathering and association.
They expand the executive branch’s ability to hunt down, torture, and exact revenge on opponents and those with different views, employing imprisonment to do so.
The same laws and legal amendments further criminalise the activity of NGOs working in the fields of human rights and defending victims of repression, enveloping society in a wall of fear that crushes its activism.
It revives the authoritarianism that was present before 2011, this time embracing an even more repressive legislative approach.