The recent ruling by the Cairo Court of Appeals nullifying last November’s presidential decree which dismissed the then prosecutor-general and appointed a new, handpicked one in his place has sparked heated controversy that is steadily gaining in intensity.
The ruling is widely seen as the most recent blow dealt by the judiciary to the President in the tug-of-war between the two, the stakes being the independence of the judiciary. Ever since he came to power last June, the judiciary have issued court rulings that defied the efforts by the President and his Islamist supporters to Islamise the country. In case of the recent ruling, the public response was predictable: President Mursi’s opponents hailed the ruling while his supporters decried it.
Fears that the presidency did not intend to abide by the court ruling gave rise to strong public protest in Cairo and other Egyptian towns, which demanded the direct implementation of the court ruling. It took the presidency five days to declare that it intended to contest the ruling before the Court of Cassation, Egypt’s highest court.
Defying the judiciary
Last November, with Egypt highly polarised between the Islamists and the increasingly strong seculars who rejected religious rule and who vowed to fight the attempts to ram an Islamist constitution down their throat, President Mohamed Mursi issued a ‘Constitutional Declaration’. Through this declaration, which was widely perceived as intended to secure Islamist goals, the President granted himself sweeping powers, made his decisions immune to judicial review, immunised the Constituent Assembly that was then writing the Islamist constitution against invalidation by court ruling, curtailed the power of the judiciary, and dismissed the then prosecutor-general Abdel-Meguid Mahmoud whom he replaced with Talaat Ibrahim 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.
In December, amid outrage over his appointment, Mr Abdullah made and then retracted an offer to resign.
Tahany al-Gebali, former deputy to the head of the Supreme Constitutional Court, said the recent ruling upheld the sovereignty of law, and restored to the Egyptian judiciary its dignity. It was a potent response, she said, by the judicial authority to the executive authority represented by the President who, in his appointment of Mr Abdullah as prosecutor-general, had thrown the law to the wind.
The cornerstone of the legal reasoning behind the court ruling, according to constitutional expert Nour Farahat, is that the Constitutional Declaration of last November is itself non-constitutional. It was on grounds of this declaration that the President issued his decree dismissing Mr Mahmoud and appointing Mr Abdullah. “The Constitutional Declaration,” Mr Farahat wrote on his Facebook page, “lacks all standards of constitutionality and is at best a presidential decree that violates the judicial authority law, well-established constitutional standards, and the supra-constitutional principle of the independence of the judiciary.” Mr Farahat warned against the violation of legal principles for the benefit of political interests.
For his part, Law Professor at La Rochelle University Wagdy Thabet Ghobrial decries the “immunisation” against legal contest included in President Mursi’s Constitutional Declaration and all its consequences. “We have been hearing of a parliament immune to being disbanded by court, a constituent assembly immune to being pronounced illegal, and a constitution immune to invalidation,” Dr Ghobrial wrote to Watani. “In legal tradition, all this is tantamount to nonsense. Because it makes no sense to constitutionally immunise illegal actions that violate principles which in themselves take precedence over the constitution.” The President’s actions, Dr Ghobrial says, represent an infringement by the head of the executive authority against the judicial authority, a right he legally does not posses.”
“The ruling was no surprise; it was expected,” said Mahmoud Kamal, the spokesperson of the development and advancement youth movement. “It mirrors the independence and objectivity of the judiciary. The coming days may witness rulings that might declare the last parliamentary elections illegal because of serious irregularities, and dissolve the Muslim Brotherhood group (MB) on grounds of its illegality.
Mr Kamal called on the armed forces to be ready to defend the judiciary in case such rulings are issued since, in that event, the MB are expected to react violently.
Judge Mahmoud al-Khudeiry, former president of the Court of Cassation, voiced an opinion that it was inadequate for Mr Abdullah to remain in office as prosecutor-general now, in the wake of the recent court ruling and the wide public protest against him. But neither can Mr Mahmoud again be in office under the new constitution which has stipulated a four-year non-renewable term for the prosecutor-general. “The answer,” Judge Khudeiry says, “is for Mr Mahmoud to honour the court ruling by going back to office for a symbolic one day, then resigning his post. A new prosecutor-general may then be instated according to legal standards.”
In all cases, everyone now awaits the outcome of the contest of the ruling before the Court of Cassation. There is wide division between judges, however, as to whether the ruling by the Court of Appeals should be directly implemented, or only after the contest is seen by the higher court. The President’s legal consultant Fouad Gadallah said it has to wait, but this was criticised and countered by Samir Sabry, the lawyer before the Court of Cassation and the Supreme Constitutional Court.
On the day following the recent court ruling the Egyptian Journalists’ Syndicate board decided to boycott dealing with the office of Mr Abdullah.
The move caps the grievances the Syndicate holds against Mr Abdullah, the most recent among which has been the summoning of the Syndicate board deputy chairman Gamal Fahmy to appear in front of the Court of Appeals on claims of “publishing false news that threaten national security”. Mr Fahmy refused to appear before the court. He is accused of publishing the intentional killing of the 33-year-old journalist al-Husseini Abu-Deif during clashes outside of Cairo’s presidential palace in December 2012.
“Reports regarding journalists will be presented to the prosecution and not to the prosecutor-general’s office,” a Syndicate statement read.
The MB, predictably, holds a different opinion regarding the recent court ruling. The lawyer representing the group, Abdel-Moneim Abdel-Maqsoud, said that reinstating Mr Mahmoud would give rise to political instability, and “wipe out all the achievements of the last period”.
Mr Maqsoud branded the recent court ruling as illegal “because it contradicts constitutional texts the Egyptian people voted for”. He warned against mixing politics and justice, and said the recent ruling was not final. He insisted he fully respects the judiciary “when it is not a tool to demolish the State”.
7 April 2013