Rana abdelhamid 20161998

Assignment 3

Principal of law

THE JUDICIARY IN EGYPT Is based on an independent judicial

authority consisting of courts of various types and levels, and its rulings
are issued in accordance with the law, Article 165 of the Constitution,
which consists of five courts which are:

(Public prosecution, state council, the supreme constitutional court, state

cases authority, administrative prosecution)

The Supreme Constitutional Court (SCC) selects its own chief justice
and other justices, and even decides how many justices will serve on the
court.

It is one of Egypt's most powerful and autonomous institutions of

government, with a history of battles with authoritarian regimes and of
rejecting laws that exclude certain groups from political participation or
that tilt the political playing field in favor of government-approved
political parties.

Jurisdiction

Article 192 of the 2014 constitution provides that the Supreme

Constitutional Court (SCC)

“is exclusively competent to decide on the constitutionality of laws and

regulations, interpret legislative texts, and adjudicate in disputes
pertaining to the affairs of its members, in disputes between judicial
bodies and entities that have judicial mandate, in disputes pertaining to
the implementation of two final contradictory rulings, one of which is
issued by any judicial body or an agency with judicial mandate and the
other issued by another body, and in disputes pertaining to the
implementation of its rulings and decisions.”

Article 192 also provides, “The law defines the Court’s other
competencies,” which authorizes statutory expansion of SCC jurisdiction.
Composition and Selection

Article 193 of the 2014 constitution provides, “The [Supreme

Constitutional] Court is made up of a president and a sufficient number of
deputies to the president.” At present, the number of deputies to the
president is ten.

The President of the SCC serves as its Chief Justice, and the Deputies
(also called Vice-Presidents) serve as what in the U.S. Supreme Court
would be called associate justices.

The constitution also provides for the appointment of a body of

commissioners, who are judicial officers who serve as advisory staff to
the court: “The Commissioners Authority of the Supreme Constitutional
Court is composed of a president and a sufficient number of
[vice-]presidents in the authority, advisors and assistant advisors.”

The SCC commissioners conduct a preliminary review of all incoming

cases and prepare advisory reports (which may take the form of draft
judgments) that are submitted to the court before cases reach the justices
for review and decision.

Article 193 of the constitution also stipulates that the court’s president,
other justices, and commissioners are selected by the general assembly of
the court, meaning the collective body of its sitting justices: “The General
Assembly chooses the court’s president from among the most senior three
vice-presidents of the court. It also chooses the vice-presidents and the
members of its Commissioners Authority, who are appointed by a decree
from the President of the Republic. The foregoing takes place in the
manner defined by the law.”

In other words, SCC selects its own members, and implicitly even
decides how many justices will serve on the court. The President of the
Republic has only the authority to make the official appointment as an
essentially ministerial formality, not the authority to select whom to
appoint.

It was not always so. During President Hosni Mubarak’s time in office,
he had the unfettered authority to select the SCC’s president, and could
choose its deputies from among those nominated on two lists, one
submitted by the court’s president and one submitted by the general
assembly of the court. President Mubarak also had the authority to decide
how many justices would serve on the court.

In 2001, President Mubarak broke with long-standing tradition by failing

to appoint the next most senior judge of the court to serve as its president,
and instead reached outside the court to both select and appoint Fathi
Nagib, who had been the author of much of the illiberal legislation struck
down in then-recent years by the SCC. Chief Justice Nagib promptly
nominated and gained the presidential appointment of five new justices to
the SCC, an obvious move to pack the court with justices more to
Nagib’s (and by extension, Mubarak’s) liking.

The 2014 constitution was drafted in such a manner as to preclude the

potential for a recurrence of such court-packing by the President of the
Republic.

The Public Prosecution

Overview

In Egypt, the Prosecutor General and the Public Prosecution Office he

heads are an independent arm of the judicial branch of government, not
subject to executive branch authority or control. (Article 189 of the 2014
constitution states, “The public prosecution is an integral part of the
judiciary.”)

The Public Prosecution Office is headed by the Prosecutor General, who

is a senior judge, selected by the Supreme Judicial Council from among
the senior judiciary (including senior officials of the Public Prosecution
Office). Prior to the 2011 revolution, the President of the Republic had
the authority to select the Prosecutor General, but that authority to select
was eliminated by both the 2012 and 2014 constitutions. Now, the
President of the Republic has only the authority to appoint, as an
essentially ministerial act.

Prior to the 2011 revolution, even though the President of the Republic
had the power both select and appoint the Prosecutor General, the
President lacked the authority to remove him from office, as President
Morsi discovered when he unsuccessfully attempted to remove Mubarak-
appointee Abdel-Mageed Mahmoud from office. (The details of that
rather long story will not be delved into here.) Once appointed, the
Prosecutor General served until he either stepped down or reached
mandatory judicial retirement age. One of the reforms introduced by the
2012 constitution (Article 173) and preserved in the 2014 constitution
(Article 189) is that the Prosecutor now serves a term of only four years,
or until he reaches mandatory retirement age, and may not serve as
Prosecutor General more than once during his judicial career.

The Public Prosecution Office is modeled on the French Parquet. (In

French, “parquet” literally means wooden floor. In its legal sense, the
word is used to distinguish between those judicial officers who stand on
the floor of the court—the public prosecutors—and the “sitting” judges
who preside in the courtroom.) As in France, the prosecution function can
also be filled by investigative judges (in France, called investigative
magistrates), the main difference between a public prosecutor and an
investigative judge being that the former serve under the supervision and
control of the Prosecutor General, while the latter do not. In Egypt,
however, unlike France, there are no standing investigative judges; they
serve only by special appointment on an as-needed, case-by-case basis.

Public prosecutors act as both investigators and courtroom prosecutors. In

Egypt, public prosecutors distinguish between an initial inquiry
conducted by police agencies, which they consider to produce only
intelligence information (the functional equivalent of leads), and an
“investigation” conducted by one or more public prosecutors, the written
report of which is admissible in court as substantive evidence without the
need for any supporting live testimony.

The role of the public prosecutor is to conduct a neutral, unbiased

investigation into the truth. Criminal investigations are generally initiated
based on complaints filed by citizens or government officials, but may
also be initiated by the Public Prosecution Office itself based on
information such as news reports.
It is considered mandatory to investigate criminal complaints, which
means that no inference as to the merits of a complaint can reasonably be
drawn from the mere opening of an investigation. It is common for
complainants to file a complaint, then announce to news media that the
Prosecutor General is conducting an investigation into the matter,
creating the misimpression in the minds of those who do not understand
the non-discretionary nature of opening an investigation that the
Prosecutor General sees potential merit to the allegations made in the
complaint. All complaints are considered deserving of at least preliminary
investigation, even those that are facially frivolous or fanciful.

In conducting investigations, public prosecutors acting in their capacity as

judicial officers receive the sworn testimony of witnesses, which is
reduced to a written statement and signed by both the witness and the
prosecutor, much like a deposition or affidavit. Such a sworn statement
constitutes substantive evidence without the need to call the witness to
testify at trial.

If the public prosecution finds that the evidence justifies a trial, charges
are filed with the trial court in the form of a referral, which consists of a
statement of the charges and a summary of the evidence supporting each
charge as to each defendant. The referral and public prosecution file
constitute substantive trial evidence without the need to call live
witnesses.

To those from a common law system background, in some ways an

investigation by the Public Prosecution Office resembles a trial,
conducted informally in the prosecutor’s office, with the formal “trial” of
felony cases before a panel of three Court of Appeals judges resembling a
de novo (from the beginning) appeal of the public prosecutions findings.