مركز ماعت للدراسات الحقوقية والدستورية

Maat center observed with great interest the draft of Legal Syndicates' Council which prepared by Counselor\Mahmood Maraee ,Minister of Justice, in preparation of issuing a public report concerning it, to be ratified in the recent parliament round. The so-called Maraee's draft, which is composed of eight articles, regarded really in accordance with opinions of number of judicial and public characters as a new slaughter of the Egyptian Judiciary. This draft represents violation of the principle of separation between authorities, and decreases the independency of judicial authority, keeper of rights and freedom.

Maat Center's Report concerning the new draft of Maraee.

29\11\2007.

The so-called Maraee's draft, which is composed of eight articles, regarded really in accordance with opinions of number of judicial and public characters as a new slaughter of the Egyptian Judiciary. This draft represents violation of the principle of separation between authorities, and decreases the independency of judicial authority, keeper of rights and freedom.

The new draft formation dedicated more authorities to the execution authority, which is already magnified, in away seems to be complete deferent of the Judicial Authority Law's amendments ratified on June 2006.

While these amendments ratified in article N.77repeted in (5) that there is an independent budget of judicial bodies prepared by the High Judicial Council, in agreement with Minister of Finance, and that this council distributes it after ratifying it on terms, groups, and fields according to principles followed in the country's general budget, the draft represented a clear withdrawal in this concern as it ratified new formation differed from Judiciary syndicates' Council actually headed by the executive authority, through setting that Minister of Justice is the deputy of the council's chairperson " the state's president" who is mostly absent because of his responsibilities and his position's duties, it means that Minister of Justice will be the real chairperson of the council.

However, the Attorney General is a position of appointment according to articleN.119 of Judiciary Authority's Law, and the chief justice of Constitutional Court as will. This differentiated actually from the principle of independency of judicial bodies' budget, especially as Judiciary Bodies Council according to the new draft will be of course a council affiliated to the executive authority.

While new democratic systems support the state of institutions, deepen the principle of separating authorities; make balance between powers given to the executive and legislative authority through support the principle of independency of judicial authority in accordance with legislative principles, the sovereignty of law, and keeping rights and freedoms, but the new draft adopt a completely contradictory philosophy.

In addition, the draft represents a dualism in the legislative context of the recent judicial authority law in its latest amendments. While article N. 93 states that, the role of Minister of Justice and members of executive authority in courts is just the right of administrative supervision, it gives the chief justice of every court, and the General Assembly the right of full supervision on judges affiliated to it…the new draft regarded the ministry of justice as the actual high president of the higher judicial power in Egypt and as the boss of judges, it also gives him and the state's president alone the right to determine the Judicial Bodies Council's meeting place according to fourth article of the draft, is this is just an administrative supervision????

The fifth article as a whole is unconstitutional and regarded as a violation of articles number 165,166 in the Egyptian constitution. This article gives the Attorney General the right to appeal decisions issued by councils related to judicial bodies, which he is a member in it, thus how he appeals decisions that he voted?

This article specified the body to which a member of the judiciary body can complain against decisions issued to tack penal procedures against him, and stated that this body formed in even number while it is conceded that forming councils or commissions done in uneven number. On the other hand, the body to which complains are referred, which considered appellate body for the other body issued the decision- formed of the same members who issued the decision against which the complain is, how it be constitutionally right that the appellate body be the same body which tack the decision complained from ?!

Chief justice of the High Constitutional Court, chief justice of the Court of Cassation, and chief justice of Cairo Court of Appeal are members in both of judicial bodies' council and in the committee specified to view complains of decisions issued in order to tack penal procedures against judges.

On another arena, this article adopted legislative policy, do not preceded in any legal systems; it confessed the rightness of procedures taken according to illegal permission deleted by the authorized body, it also formed a complain committee which make no legal effect of the complain either at the time of presenting it, while viewing it, or even after accepting it. This article stated that "complaining against a decision does not stop tacking procedures without referring to the public prosecution to examine the suit, and does not stop tacking procedures against the complainer until the committee issued its decision in the complain, examining procedures is right even if the committee issued a decision to cancel the permission of tacking penal procedures".

A draft adopted by the counselors, Minister of Justice, includes all these clear defects, represents a violation of the Egyptian constitution, and contradicted with legal legislative principles. The draft formation and time… raise many questions especially along with rapid amendments in Judicial Authority Law through the last year and half, and in the frame of events which parties are some members of the judicial bodies specially Judges' Association on one hand and Minister of Justice, as a representative of the executive authority on the other, and through adopting unclear policy towards the principle of sovereignty of judicial authority.

While amendments done in July 2006 adopted a way towards more establishment of this principle, the constitutional amendments on 26\03\2007, adopted a completely different system; article N.88 of the constitution put the Egyptian judiciary aside from the supervision of elections. Also article N. 179 specialized for terrorism handcuffed judiciary hand from supervising commissioner of judiciary police and the result is violating civilian's rights and freedoms without control, and lastly Maraee's draft comes.

Department of Legislation and Legal Opinion, issued its report concerning this draft and considered it contradicted to law principles and unconstitutional in many parts, and the High Judiciary Council announced the refusing of this draft.

Ministry of Justice issued a release in which it announced its withdrawal in some provisions of this law, by deleting the fifth article completely from the draft and amending the first one according to the sovereignty of judiciary bodies' budget without announcing its coming substituted provision.

The matter raises an important question: is the real draft of Maraee was included the fifth article, or it was put in order to be withdrawal from without the other provisions of the law?!