Introduction:

The upcoming presidential election of 2023 is the last electoral process to be conducted under full judicial supervision in accordance with the 2014 Constitution. The new constitution adopted a system of independent management of elections, ten years after its issuance, as a transitional phase ending in mid-January 2024.

Judiciary being responsible for election supervision has been the only solution proposed to confront popular distrust in the elections in Egypt, with widespread fraud in most of the electoral processes, to which people responded with widespread reluctance to exercise their right to vote. Judicial rulings have accumulated to partially invalidate the elections in some circuits, or completely in some other cases. For decades, the Parliament has protected itself from judicial rulings with the rule: “the Council is the master of its own decisions”, since its law gave it the right not to enforce judicial rulings invalidating the membership of representatives whose elections were ruled invalid in their circuits. However, assigning the judiciary to supervise the elections was not easy, and rather surrounded by ambiguity, where the judiciary intervened more than once to set legal controls for that supervision.

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Full Judicial Supervision on Presidential Elections Between concept and application

The Justice Support Foundation at the Arab Center for Judicial Independence issued a legal paper that addressed attempts to undermine judicial independence during the past ten years 2013-2023.

The paper reviewed previous attempts to issue a draft law guaranteeing judicial independence in Egypt. The paper also addressed the status of the judiciary in the 2014 Constitution, which included the minimum standards for judicial independence, as it addressed the judicial authority in Articles 185 to 191. It recognized the independence of the judiciary, the autonomy of judges, and their inability to be dismissed. It also stipulated that the Supreme Judicial Council should assume judicial affairs. The constitution did not include the judges’ demand to stop secondment and loan to non-judicial bodies, as this opens the door to interference in judicial affairs.

The paper then reviewed the attempts of the executive authority to control the judiciary, especially the deprivation of the authority to appoint the heads of the supreme courts (the Court of Cassation – the Supreme Administrative Court), especially since the Court of Cassation invalidated mass death sentences for their conflict with the standards of a fair trial, and ruled that police investigations were insufficient as evidence of conviction. On the other hand, the Supreme Administrative Court issued many rulings supporting freedoms, the most important of which was the ruling invalidating the concession of the islands of Tiran and Sanafir.

Also, the appointment of the Public Prosecutor, who heads the Public Prosecution, from the Supreme Judicial Council, so that their appointment is the authority of the President of the Republic.

The paper discussed the state’s issuance of Law 13 of 2017, which granted the President of the Republic the right to appoint the heads of the supreme courts from among the three most senior vice presidents of the court, a law that was widely opposed by judges.

The paper monitored the constitutional amendments of 2019, which changed the nature of the judiciary, as it gave the President of the Republic the authority to appoint the heads of the Supreme Courts from among the seven most senior vice presidents of the court, and stripped the authority to appoint the Public Prosecutor from the Judicial Council, and his appointment became the authority of the President of the Republic from among three candidates.

The constitution also stipulated the formation of an institutional entity, the Supreme Judicial Council, which brings together the judicial bodies and authorities, and is headed by the President of the Republic, and this entity has broad powers that dominate the affairs of the judiciary.

The paper addressed the legal amendments that followed the constitutional amendments to put those amendments into effect, including Law 77 of 2019, which gave the President of the Republic the authority to appoint the heads of the Supreme Courts and the Public Prosecutor.

The paper concluded with recommendations that it deems necessary for the independence of the judiciary in Egypt.

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Introduction:

The government has submitted a draft law to amend the Criminal Procedure Code, which includes making fundamental amendments to the law and adding new provisions that were not present. The government attributed the aim of the draft to several reasons, the most important of which are the constitutional entitlements that require litigation in two degrees, and the protection of witnesses, informants, and victims of crimes, in addition to achieving prompt justice through speedy resolution of cases, in addition to other reasons, including activating the positive role of the criminal judge, and benefiting from the development of communication methods.

The truth is that the current Criminal Procedure Code 150 of 1950 has undergone many amendments over the past decades, and there is an objective necessity to issue a new law, especially after the issuance of the new constitution of 2014. Which included new entitlements that are not present in the current law, the most important of which is litigation in two degrees in felonies, and compensation for pretrial detention. In fact, the delay throughout the past years from 2014 until now represents a flagrant violation of the constitution and the rights it includes for citizens accused. But this does not mean rushing to make amendments that disrupt the stable conditions in litigation or reduce the procedural guarantees for a fair trial.

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Egyptian Criminal Procedure Law Bill A Violation of Criminal Justice Standards

Conclusions:

To sum up, there are some notes regarding the amendments applied to the law of the supreme Constitutional Court in the form approved and published in the Official Gazette:

1. The amendment added a new jurisdiction regarding monitoring the constitutionality of decisions of international organizations and bodies, as well as rulings of foreign courts with specific procedures starts with a request to the prime minister.
2. Decisions of international organizations and bodies, as well as rulings of foreign courts, whether international courts or foreign (local) courts, are not legal legislation, and therefore no Egyptian judicial control, whether from the Supreme Constitutional court or other bodies, is applied over them.  In this regard, court rulings particularly are subject to private international law. As for the decisions of international organizations and bodies, they are subject to the international conventions considered, according to the Egyptian judiciary, an act of sovereignty over which judicial control recedes.
3. Claiming that the amendment came in implementation of the provision of the second paragraph of Article no. 192 of the Egyptian Constitution is inadmissible here since the jurisdictions of the court that may be added must be related to internal law and national legislation alone. And to say that this control is implemented on foreign rulings or international treaties is a violation to the provisions of the Charter of the United Nations, as well as the provisions of the Vienna Convention on the Law of Treaties, both of which Egypt has joined, which necessitates an international obligation not to violate their provisions.

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 Amendment of the Supreme.pdf

Conclusion:

Most of the amendments that affected the Constitution, the Penal Code and the laws complementing it (specific criminal legislations) came without an urgent social necessity, and without taking into account the foundations and philosophy of comparative criminal laws. This does not discredit the argument that it came in exceptional circumstances, nor in a dynamic reality in which the good and the bad ripple, threatening state structure. Even in those exceptional cases, there are constitutional rules and provisions that must be adhered to and implemented. There are rights and freedoms that should not be violated nor imposed with restrictions that afflict them, emptying them of their content and undermining its essence. Most of the changes were as follows:

• Inaccurate wording, permeated with ambiguity and verbal flexibility that expands to include cases that the constitution prohibits criminalizing. This also increases the potentials of selective implementation in a way that violates the equal legal protection of those addressed with its provisions.
• The amendments brought some articles of laws that the Supreme Constitutional Court ruled unconstitutional, re-drafted and merged them again into the legislation in force at the present time.
• The amendments also brought the provisions of exceptional laws and planted them in the heart of ordinary ones; the thing that curtail the rights and freedoms of those who are addressed by these provisions and ought to obey rules and orders.
• Most of the amendments aimed at imposing the executive authority’s control over every opinion (said or written) and action made by opinion makers through words or formulations that expand to include all permissible things that can be interpreted broadly and flexibly to be subject to criminalization cycle despite the clarity of a legal rule that the exceptions interpretationmay should not be expanded. Rather, its interpretation must be narrowed whenever it is in the interest of the accused.

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Constitutional Amendments Impact on the Penal Code.pdf