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Thursday, 28 January 2021

Text of court ruling reversing appointment of Egypt prosecutor-general

Ahram Online provides unofficial English-language translation of Court of Cassation's ruling reversing President Morsi's November decree appointing new prosecutor-general

Ahram Online, Monday 1 Apr 2013
Abdel Meguid
Former Prosecutor General Abdel-Meguid Mahmoud (Photo: Al-Ahram)
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The Cairo Court of Cassation on Monday released details of its ruling reversing President Mohamed Morsi's 2012 decision to appoint a new prosecutor-general.

The Cairo Court of Cassation's judiciary members directorate concluded that Morsi's appointment late last year of Talaat Ibrahim as prosecutor-general – along with the concurrent dismissal of former prosecutor-general Abdel-Meguid Mahmoud – was null and void.

Following is an unofficial translation of the verdict's main points, as stated by the court:

  • In accordance with the legal judicial immunity granted to the prosecutor-general, members of the judiciary and the public prosecution, the prosecutor-general shall retain his post until he reaches the age of retirement. During his term of office, he shall not be transferred to other judicial work, unless upon his request.
  • As the [appointment] decision represents a direct violation of the judiciary's constitutional immunity, as well as the prosecutor-general's immunity under the current judicial authority law, the decision should have been put before a popular referendum so as to enjoy constitutional legitimacy, rather than being unilaterally issued, immediately upheld and made immune by the executive authority, from which the prosecutor-general should enjoy immunity.
  • Under article 77 (B) of the Judicial Authority Law (which remains in effect according to article 222 of Egypt's newly-ratified constitution), the decision shall not be considered a legal or constitutional decree unless it is ratified by Egypt's Supreme Judicial Council.
  • The appointment was based upon a presidential decree that was in turn based upon a constitutional declaration, which was never put to a public vote. The terms of the new constitution, therefore, were not applied following its enactment.
  • Human rights and basic freedoms, which are acknowledged in international and regional human rights declarations, are among the most agreed-upon supra-constitutional principles. These include the right of litigation and the prohibition of the immunisation of any decision from appeal before an independent judicial authority.
  • The principles of judicial independence and judges' invulnerability to dismissal are acknowledged in successive Egyptian constitutional documents, including the newly-ratified constitution.
  • Former prosecutor-general Abdel-Meguid Mahmoud is entitled to file his lawsuit in his capacity as prosecutor-general at the time of the issuance of the presidential decree, which laid down the mechanism governing the new prosecutor-general's appointment. The [appointment] decision was issued prior to the enactment of the new constitution and its provisions.
  • Decisions included in the two disputed constitutional declarations [issued by President Morsi in November and December 2012] were not put before a popular referendum and therefore the articles contained therein do not enjoy the status of constitutional declarations, which enjoy legislative immunity.
  • According to the Judicial Authority Law and its successive amendments, the invulnerability of judges to dismissal represents a main pillar of judicial independence.
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