Tipping the Scales: Egypt’s New Judicial Authorities Law

04/28/2017 . By Brad Youngblood

The April 26 passage of the Judicial Authorities Law amendments has easily been one of the most important moves made by the Egyptian legislature during its second session. The vote on the Judicial Authorities Law and its ratification yesterday by President Abdel-Fattah El Sisi solidified two things observers of Egyptian politics have been aware of for some time: that the judiciary is considered to have a semblance of independence, and that more authoritarian-leaning state organs are uncomfortable with this independence. Those are admittedly heavy statements to make about a number of government entities based on a single law and, under other circumstances, might be considered hyperbole. However, this law, which empowers the president at the expense of the constitutionally mandated separation of powers, should be seen as nothing less than an attempt by the ruling cohort to stock the highest levels of the judiciary with more rabidly pro-government judges.

The amendments in question allow the president to choose the heads of leading judicial bodies — like the Court of Cassation, the State Council, the State Lawsuits Authority, and the Administrative Prosecution Authority — from among three candidates presented to him by the relevant judicial councils. This is a departure from the previous law, which only asked the councils to receive the president’s approval for their single chosen candidate. Seniority typically played a large part in the decisions under the old law. The metrics by which the president should determine the most qualified judge under the new system is not specifically enumerated.

In theory, this may not seem like a large departure from the previous law in which the president already had veto power over the heads of the judicial bodies. Yet, in practice, it is a direct affront to Article 5 of the 2014 constitution, which guarantees the balance of powers in the Egyptian government. While the earlier version of the Judicial Authorities Law empowered the judiciary to choose its own leadership and placed the onus of disputing that decision on the president, the new amendments give Sisi the ability to insert issues of pliability, political stances, or pure patronage into the process. While these factors may have played a part in State Council decisions prior to the passage of this amendment, corruption could be somewhat mitigated by the principle of seniority. Under the new system, the potential for corruption is replaced with the potential for executive meddling in judicial affairs, and while corruption may be a symptom of authoritarian rule, presidential control over the judiciary without a legislature’s oversight is a direct act of authoritarianism.

The context in which the law was passed also portends changes in the adherence to the principle of rule of law in Egypt. Take, for instance, that the highest administrative court, the State Council, is set to choose a new head before June 30. With the law passed and ratified, Sisi enjoys a disproportionate say in determining the leadership of the highest court for executive and parliamentary affairs. This might go a long way in helping him ameliorate his current issues with the “lost” NGO Law, the illegal disregard of the ruling in the Ahmed Mortada Mansour vs. Amr al-Shobaki case in parliament, the unconstitutionally implemented Tiran and Sanafir border agreement, and the unconstitutionally ignored mandate to pass a Transitional Justice Law. It might also affect the careers of judges who have ruled against presidential overreach. Analysts have cited Anas Ali Abdullah Amara, who canceled all death penalties issued to civilians based on national security investigations, including a number of cases involving the Muslim Brotherhood, and Yehia al-Dakrouri, who stopped the implementation of the Tiran and Sanafir border agreement with Saudi Arabia, as judges whose career trajectory could be immediately affected by the new law.

Given its violations in the balance of the branches of government, there is a high probability that this law will be challenged before the Supreme Constitutional Court. With an increasing politicization of the judiciary, it is unclear whether such challenges would be successful. The only thing that is certain in this story is that the pro-Sisi voting bloc in the captive parliament forced through an arguably unconstitutional law that will empower the president to bring the judiciary further under his control. As previously stated, the fact that a marginally more independent judiciary is considered a problem by the state provides solid evidence for the assumptions of many observers of Egyptian politics. The authoritarian tendencies of the Egyptian government are set to become stronger and bolder under these amendments.