Press release
Cairo 26/5/2003

A Historic Report  by the Court of Cassation that Reinforces the Foundations of the Rule of Law and the Independence of Judiciary 

(EOHR demands the cancellation of the High Council of the Judiciary) 

EOHR closely monitored the important report issued last Monday 21/5/2003 by the Egyptian Court of Cassation, which was presided over by Chief Justice Hisham El-Ghiriany, and member justices Hisham El-Bastawisy, Mohamed Sheta, Abd El-Rahman Haikal, and Rifaat Hanna.  The report declared the invalidity of the last Parliamentary elections for Electoral Constituency #9 in the police district of El-Zeitoun in Cairo, where judges in 6 committees out of 49 were replaced by government officials from the State Legal Department and the Administrative Prosecution. 

This report was grounded on the fact that both the State Legal Department and the Administrative Prosecution are administrative bodies that are subject to the executive branch of government, and therefore cannot be considered judicial in character. Also, the report pointed out that these six appointees were not literally or technically part of the “judiciary” as far as the term is normally understood, for that term generally implied a guarantee of neutrality and independence – as is required by a clear separation of powers – a guarantee that cannot be assured in the work of these particular individuals. Moreover, the report stated, it is not enough that these individuals merely work in a department or field – or share in the administration – of justice, because to describe them as being on an even par with judges would be to imply that the police, court employees, lawyers, legal experts, and any others that work within the judicial sphere could also be considered as having judicial authority. 

In addition, the report added that although the Constitution mandates that the legislature can create judicial bodies, it is not written in the text of the Constitution that legislators cannot claim that an administrative body is actually a judicial one. The ability to do so is not written in the Constitution itself and is contrary to the Constitution for such an interpretation provides a definition of the judiciary that the text of the Constitution cannot confirm.  Therefore, the report assures that despite the fact that the legislature has made the State Legal Department and the Administrative Prosecution a presence in the High Council for the Judiciary, these two bodies continue to remain administrative in character and organs of the executive power.  As a result of the legislature’s actions, individuals that are not truly judges have been placed in positions where they are involved in the business of the judiciary, and this allows the words and opinions of those that are not judges into the business of the judiciary.  More importantly, this allows the executive power to have greater representation and power – through the aforementioned two agencies – within the judiciary branch of government and this is contrary to the constitutionally recognized principle of a clear separation of powers.  

EOHR considers the content of the report as laying the foundation stones for firstly, the principle of the independence of the judiciary in Egypt, and secondly, as the basis for the rule of law and separation of powers.  In light of this report, EOHR puts responsibility on the government for the questionable legitimacy of the membership of the Egyptian Parliament, and the persistence of executive and legislative interference with the judiciary.  Moreover, EOHR continues its demands for the judicial supervision of elections and considers all elections to be incomplete unless they are overseen by an independent judicial body. This supervision must apply to every phase of the electoral process from the initial call for candidates to the confirmation of the final electoral results.  EOHR echoes the order from the Court of Cassation, and calls for the immediate cancellation of the High Council of the Judiciary as it considers it a mark and signifier of the impairment of the independence of the judiciary in Egypt.  Moreover, EOHR supports the ability of the judiciary power to organize itself, free from interference from any of the other branches of government.  

Finally, EOHR concurs with this historic report from the Egyptian Court of Cassation, and calls for the Egyptian authorities to demonstrate sufficient responsibility not only for the guarantee of fair and free elections under judicial supervision, but also for a reinforcement of the rule of law and the independence of the judiciary, as EOHR views these latter two elements as fundamental pillars for the development of democracy and the enhancement of human rights in Egypt.