Problems on hold: The great Egyptian judiciary

16-04-2013 05:20 PM

Youssef Sidhom

Among the deplorable practices that gained ground in Egypt following the January 2011 Revolution has been the derision of the judiciary by the media and the public, and the bold deliberation of court rulings by non-experts

Among the deplorable practices that gained ground in Egypt following the January 2011 Revolution has been the derision of the judiciary by the media and the public, and the bold deliberation of court rulings by non-experts. Even before the court would issue its ruling on a given case, the non-experts would volunteer their political opinion and views on the case and, once the ruling was out, it would be dissected by supporters and opponents, and applauded or denounced accordingly. All this should come as no surprise, given the quivering sovereignty of the State since it abandoned the separation of authorities, dared to defy the judiciary, and allowed the mob to blockade courts and threaten and terrorise judges.
History will record the disastrous practices against the judiciary as part of the political and behavioural decline that came with the 25 January 2011 Revolution. But history will also recall that the Egyptian judiciary stood firm in face of the attacks against it. It would not be terrorised nor would it allow the scale of justice to waver; it defended the Constitution and the Law even when the antagonism against it came from the President of the republic.
No better evidence of the magnificence of the Egyptian judiciary than the recent ruling by the Administrative Court which annulled the President’s decision of last November to dismiss the then prosecutor-general, Abdel-Meguid Mahmoud, and appoint the current one, Talaat Abdullah. The move came in defiance of the Egyptian legal system under which the prosecutor-general could only be dismissed by judicial decree, not by the president, and a new prosecutor-general could only be appointed by judicial selection not by the president. 
Court rulings that concern political and economic issues are always publicised by the media and mulled over by the public. Other rulings, however, lack media attention even when they concern problems that have long been placed on hold. Yet they remain radiant marks of the work of the great Egyptian judiciary, and I would like to familiarise our readers with a number of them. 
Among these rulings is one issued last February by the Administrative Court on a case filed by the lawyer M.B against the President of the Republic. The claimant demanded the annulment of the 2005 presidential decision to delegate to the governors, each in his governorate, the right to issue permits for the demolition of dilapidated churches and the building of new ones in their place, and the restoration or expansion of already existing churches. The 2005 presidential decision, according to the claim, is unconstitutional and illegal since it is not based on a law that grants the president of the republic himself the right to issue permits for the building and restoration of churches, this being the task of the building authorities. The presidential decision furthermore constrains the freedom of some Egyptians [Copts] to restore their places of worship, whereas no such constraints are placed on other Egyptians [Muslims]; this violates the principles of equality and freedom of belief.
The Administrative Court accepted the appeal and annulled the presidential decision. The court described the 2005 decision as “defective” from Day One, and ruled that the decision and all related consequences are null and void. The legal reasoning went as follows:
Places of worship for non-Muslims are subject to two kinds of permits: the first is the permit for building, adding floors, restoration, renovation, demolition, or reconstruction. Such permits are issued according to the laws regulating building and related activities.
The second permit relates to the activity carried out in the building in question, in this case: a place of worship where religious rites are held. This kind of permit is issued by the president of the republic according to the rulings of the Himayouni Edict which has not been replaced by any other subsequent law.
Since the first of the permits should be issued by the building authority, and the president of the republic is not charged with any responsibility concerning it, he is not entitled to relegate it to anyone else. Hence the president’s delegation to governors to issue the permits for restoration and expansion works is illegal and violates the rules of delegation in administrative competences.
Since the second of the permits relates to the activity carried out in the building—in this case worship and performing religious rites—and is issued by the president for all new churches, there is no need for a permit to be reissued for existing licensed churches. This applies to the demolition and rebuilding of churches, their expansion, or restoration.
Article 2 of the contested 2005 presidential decision stipulates that applications for restoration should be submitted by the church representative to the governorate’s building authority. In this the president of the republic violates the building law by adding new rulings to it, thus usurping the power of the legislator without any constitutional backing.
The court accordingly annulled the presidential decision issued by the former president. For too long we had been made to believe that the expansion and restoration of churches were sovereign decisions to be taken by the president. It took the Egyptian judiciary to bring justice on that head.
Watani International
16 April 2013
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