Saturday’s decision by the general assembly of the State Council (the administrative law judiciary) to nominate solely Judge Yehya El-Dakrouri as its president came as a surprise, constituting a clear challenge to the law issued just two weeks ago and signaling the start of a new standoff between the state and the judiciary.
For those who have not been following: parliament on April 26 approved changes to the laws governing the Cassation Court, State Council, and State Disputes Authority; while previously a presidential decree appointed the sole nominee selected by judges, under the new law, the judges should nominate three candidates for the president to choose from.
The president ratified the changes the next day and they were published in the Official Gazette the same day, entering into force on April 29.
The changes passed despite objections from the judicial community and warnings from commentators about the danger of the state entering into a needless battle.
The decision by State Council judges to submit only one nominee for the head of the Council does not, however, contravene the law, as their detractors maintain. The law now states that if three nominees are not submitted to the president, he may select the head of the judicial body in question from among the seven most senior judges.
So the judges’ move to nominate only Yehya El-Dakrouri may indeed be a challenge to the law or a rejection of it, but it is not, strictly speaking, unlawful.
The state thus finds itself in a tricky spot because of its hasty, insistent adoption of the amendments, despite many observers cautioning about the repercussions not only for judicial independence, but for the unity of the judicial community and its status in society.
With all due personal and professional respect for Judge El-Dakrouri, I think more important than searching for a diplomatic way out of this predicament is to seize the opportunity to reassess the status of the judiciary and justice in Egypt as a whole, not only as it affects judges and appointments to judicial bodies.
Justice in Egypt is in a perilous state. The reasons are legion and the symptoms even more so. If a section of the public supported the recent stance of the State Council, which rejects fetters on judicial autonomy, this obliges these judges and their peers in other bodies to take a stand for comprehensive judicial reform and in defense of the constitution whenever it is disregarded, citizens’ rights and liberties whenever they are violated, and judicial independence in all forms—not only when it affects the appointment of chief justices.
We urgently need to look at the issue of justice in Egypt comprehensively: from the teaching of the law, the selection and training of judges, and the provisions of resources and capacities that enable them to work in adequate conditions, to guarantees for their independence, and the reform of judicial procedures that obstruct the course of justice.
Today’s debate shouldn’t be limited to resolving the standoff between the state and judges. The future of justice and the rule of law affect the entire Egyptian people, not only members of judicial bodies.
*The writer holds a PhD in financial law from the London School of Economics. He is former deputy prime minister, former chairman of the Egyptian Financial Supervisory Authority and former chairman of the General Authority for Investment.
A version of this article was published in Arabic in El-Shorouq newspaper on Monday, 15 May.