Reform of Judicial Independence Rules in Egypt

Author:Shams Al Din Al Hajjaji
Pages:101-134
SUMMARY

This paper argues that judicial independence role in Egypt lacks any form of checks and balance, which reinstate the role of judicial autonomy over judicial independence. The judicial independence is a debatable issue in the contemporary history in Egypt. Judges, lawyers, and activist called for judicial reform after the success of the 2011 Revolution. In response, the paper presents the concept... (see full summary)

 
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e Indonesian Journal of International & Comparative Law
ISSN: 2338-7602; E-ISSN: 2338-770X
http://www.ijil.org
© 2018 e Institute for Migrant Rights Press
rEform of JudiCial indEpEndEnCE
rulEs in Egypt
Shams Al Din Al Hajjaji
Independent Scholar, Egypt
E-mail: salhajjaji@aucegypt.edu
is paper argues that judicial independence role in Egypt lacks any form of
checks and balance, which reinstate the role of judicial autonomy over judicial
independence. e judicial independence is a debatable issue in the contem-
porary history in Egypt. Judges, lawyers, and activist called for judicial reform
aer the success of the 2011 Revolution. In response, the paper presents the
concept of judicial independence in Egypt, which reects an understanding of
autonomy rather than independence. More specically, there is a clear lack of
understanding of checks-and-balances in theory and practice of judicial inde-
pendence. In this regard, the question of separation of powers and between the
judiciary, the legislative and the executive imposes a call for reform for the role
of the Minister of Justice, the Judicial Inspection Department, and the president
of the primary court over judges. For that matter, this paper answers several
questions regarding the formulation, organization, and separation of power in
the Egyptian judiciary.
Keywords: Judiciary; Judicial independence; Judicial Autonomy; Judicial Reform; Is-
lamic Law.
V Indonesian Journal of International & Comparative Law 101-34 (January 2018)
102
Al Hajjaji
I. INTRODUCTION
e judiciary is a cornerstone in protecting liberty and impartial
justice against executive oppression and other forms of executive or
bureaucratic abuse.1 e Egyptian Supreme Constitutional Court
(hereinaer SCC) maintains that judicial independence is the primary
foundation of the supremacy of the law.2 It protects both individuals and
institutions against legislative and executive violations of fundamental
rights.3 Usually, there is a mixture of judicial independence and judicial
autonomy. While the former is based on checks and balances between
executive, legislative and judicial authorities, the latter is based on
putting up barriers between the three authorities.4
Judicial independence and judicial autonomy have dierent
characteristics that distinguish one from the other. Judicial
independence involves four main issues. Firstly, that judges are free
from any form of external pressure.5 ey shall be free from any
commitment except to justice. Secondly, court decisions are subject to
amendment only through a judicial adjudication, rather than executive
or legislative methods, unless there is a constitutional amendment.6
irdly, the law shall be the only source to determine judicial decisions,
rather than any form of political pressure.7 Fourthly, the independent
1. Archibald Cox, e Independence of the Judiciary: History and Purposes, 21
D L. R. 565, 567 (1995-96).
2. e Supreme Constitution Court Judgment no. 27 states “the meaning and the
eects of judicial independence are not only a guarantee against interference of
the executive authority in justice aairs, but it is also a guarantee against exec-
utive interference in its administration. Judicial Independence is introduction
to the supremacy of law”.
3. Cox, supra note 1, at 571.
4. Rafael La Porta, Florencio Lopez de Silances, Cristian Pop Eleches, & Andrei
Shleifer, Judicial Checks and Balances, 112 J. P. E. 445, 447-449 (2004);
see also, the reform shall come from within the judiciary, David Risley, Egy pt’s
Judiciary: Obstructing or Assisting Reform, 1 M E I P
F 4, 10-11 (2016).
5. La Porta et al., supra note 4. at 566.
6. Id.
7. Id.
103
Reform of Judicial Independence Rules in Egypt
Al Hajjaji
judiciary is subject to checks and balances with the executive and
legislative authority. It is not above the other two authorities; instead,
it is equal and accountable to both. Nonetheless, the form of checks
and balances diers from one country to another. Hence, the rst three
issues are core issues of judicial independence, while the fourth raises
the question of separation of powers.
Judicial autonomy, on the other hand, is an extreme form of judicial
independence. It indicates that there is no form of supervision of checks
and balances between the judiciary, the executive, and the legislative
authorities. In addition, factors that identify judicial independence and
judicial autonomy have four unique features. Firstly, the judicial budget
does not fall under any supervision from legislative authorities, nor is
it publicly discussed. Secondly, judges perform administrative duties
and tasks of the judiciary. It may be argued that the Minister of Justice
(hereinaer MoJ) interferes in the judicial administration. However, as
indicated in this research, the MoJ is a judge who has been chosen by
the Supreme Judicial Council (hereinaer SJC). Even though the MoJ
is part of the executive authority, the MoJ also enjoys the approval of
most of the members of the judiciary. irdly, members of the judiciary
manage the judicial appointment process.
Even though the executive authority interferes with the security
checks, this has a negative impact on the process. e executive authority
has the capacity to exclude certain candidates who have political or
criminal records. However, it is unable to propose any candidate for
appointment. Fourthly, judges are accountable to their peers/judges
rather than to the two other authorities. Judicial independence has
repeatedly been implemented in the constitutional history of the
Egyptian judiciary throughout dierent periods, except during the
period of socialism.8 Even though the 1923 and 1930 Constitutions
did not mention this independence, there was a separate judicial
independence law, which formed the foundation for the concurrent
judicial authority laws.9 Aer the 1952 Military Coup, the 1956, 1958,
1963 and 1971 Constitutions maintained the judicial independence of
the bench. ey did not, however, provide any form of independence
8. A S, I -I A-N A-Q
A-M 277 (Cairo: Shorouk Publisher 2013).
9. Judicial Independence Law (1943) and Judicial Independence Law (1952).

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