Constitutional Court Law and Judici

On 26 June 2019, two laws were published[1] amending provisions in the Supreme Constitutional Court (“SCC”) Law,[2] the [general/civil] Judiciary Law,[3] the State Council Law,[4] the Military Judiciary Law,[5] the Administrative Prosecution Law,[6] and the State Lawsuits Authority Law.[7] The amendments come in light of the recent constitutional amendment, which affected – among other things – the manner in which the heads of these judicial entities are appointed and the term of their appointment. With the exception of the Chief Justice of the SCC (who is appointed by the President from among the most senior five deputies), and the Public Prosecutor (appointed by the President following the Supreme Judicial Council’s nomination of three candidates), the heads of all of the other entities will be selected by the President from among the most senior seven deputies, for a period of four years or until they reach retirement, and only once during their tenure.

Background

In the constitutional amendments introduced last April, the executive branch’s oversight over the judiciary was expanded. The power of appointing the chief justices sitting at the apex of the Egyptian civil, administrative and military court systems, as well as the public and administrative prosecution, and the heads of judicial bodies was consolidated in the hands of the President. In addition, the State Council’s powers were tightened, with its mandate to formulate draft laws and legislative decisions removed, changing it instead to the review of draft laws and legislative decisions when they are referred to it.

Recently Issued Laws Affecting the Judiciary

1. Law No. 78 of 2019 Amending the Supreme Constitutional Court Law

Law No. 78 of 2019 replaces the first two paragraphs of Article (5) of the SCC Law so that the President now chooses the Chief Justice of the SCC from among the Chief Justice’s five most senior deputies. Previously the rule was that the Chief Justice was appointed from among the three most senior deputies following the approval of the general assembly of the SCC. The amendment also refers the appointment of the SCC’s Vice Chief Justice to the President who chooses the Vice Chief Justice from among two persons one of whom is nominated by the SCC’s general assembly, while the other is nominated by the Chief Justice. The previous rule was that the SCC’s general assembly approval was required prior to the appointment of the Vice Chief Justice.

2. Law No. 77 of 2019 Amending Several Judicial Bodies’ Laws

• General Judiciary Law

This is the law governing general courts, to be distinguished from military courts and the administrative court system. Hence, Law No. 46 of 1972 (the Judiciary Law) governs the general court system’s Court of Cassation (the highest level of civil and criminal appeal in Egypt), the courts of appeal, the primary and summary courts, as well as the public prosecution. Articles (44) of the Judiciary Law was amended to make the appointment of the Chief Justice of the Court of Cassation based on a selection by the President from the most senior seven Chief Justice deputies, for one term that is either four years, or up to the Chief Justice’s reaching of retirement age (whichever comes first). Previously the rule was that the Chief Justice of the Court of Cassation is appointed by the President following the consultation of the Supreme Judicial Council. In addition, Article (119) of the law was changed so that the appointment of the Public Prosecutor is appointed by presidential decree following a nomination by the Supreme Judicial Council of three nominees from among the deputies of the Court of Cassation’s Chief Justice, the Chief Justices of the Courts of Appeal, and the Public Prosecutor’s Assistant Deputies. The term of appointment is four years, or up to retirement (whichever is closer), and only once. Furthermore, in the event that the Supreme Judicial Council fails to name three nominees, or names nominees that do not satisfy the required criteria, then the President makes a direct selection from among the above-mentioned positions.

• State Council (Administrative Court System)

The Administrative Court system is the branch governing disputes that involve one of the State’s administrative bodies as a litigant. It comprises two levels of litigation the highest of which is the Supreme Administrative Court. The governing law for this system is the State Council Law 47 of 1972, Article (83) of which was changed so that the President appoints the Head of the State Council from among the most senior seven State Council deputies, also for one term that is either four years or up to the person’s retirement age. Previously, the Supreme Judicial Council had to be consulted prior to the appointment.

• Administrative Prosecution Law

Article (35) on the appointment of the Head of the Administrative Prosecution was amended to mimic the rule for the appointment of the Chief Justice of the Court of Cassation and the Head of the State Council, and for the same term. The rest of the clauses of Article (35) containing the rules for the appointment of the two deputies of the Head of the Administrative Prosecution, and that of the heads of their subordinate departments were removed.

• State Lawsuits Authority

This is the authority that represents the State before international courts and tribunals. Article (16) of its law was changed so that its Head is appointed in the same manner to the above-mentioned entities, in contrast to the previous rule according to which they were selected from among three candidates who were nominated by the Supreme Judicial Council.

• The Military Judicial System

A new provision was introduced to this law so that the Chief of the Military Judicial Authority is appointed in the same manner.   [1] Law No. 77/2019 amending certain provision of the Administrative Prosecution Law, the State Lawsuits Authority Law, the Military Judiciary Law, the Judiciary Law and the State Council Law, Official Gazette, Issue No. 25 (bis) (b), 26 June 2019; Law No. 78/2019 amending certain provisions of the Supreme Constitutional Court Law No. 48/1979, Official Gazette, Issue No. 25 (bis) (b), 26 June 2019. [2] Law No. 48/1979 on the Supreme Constitutional Court, Official Gazette, Issue No. 36, 6 September 1979. [3] Presidential Decree-Law No. 46/1972 on the Judicial Authority, Official Gazette, Issue No. 40, 5 October 1972. [4] Presidential Decree-Law No. 47/1972 on the State Council, Official Gazette, Issue No. 40, 5 October 1972. [5] Law No. 25/1966 on the Military Judiciary, Official Gazette, Issue No. 123, 1 June 1966. [6] Law No. 117/1958 on the Administrative Prosecution, Official Gazette, Issue No. 24 (bis) (irregular), 24 August 1958. [7] Law No. 75/1963 on the State Lawsuits Authority, Official Gazette, Issue No. 180, 12 August 1963.