14 July 2006
The following statement was issued by the independent United Nations human rights expert on the independence of the judiciary:
"The Special Rapporteur on the independence of judges and lawyers, Leandro Despouy, today expressed serious concern over a law regulating the judiciary in Egypt, which was approved by the Egyptian Parliament on 26 June 2006. Promulgation of the law depends now on the will of President Hosni Mubarak.
In a letter dated 12 July 2006 addressed to President Mubarak, the Special Rapporteur expressed his concerns regarding the negative impact of the judicial authority law on the independence of the judiciary in Egypt, and urged him to refrain from promulgating the law and to send the law back to the Parliament for reconsideration. He underlined that, contrary to the process of adoption of the current text, it is essential that discussion on a new law take place in consultation with all sectors concerned, in particular the Judges’ Clubs and experts in constitutional law, whose point of view should be duly taken into account.
Concerning the text of the law, the Special Rapporteur expressed particular concern over the fact that it does not set out clear criteria for the selection and appointment of judges and of the Chief Prosecutor, that it fails to recognize the right of judges to form and join associations of judges to represent their interests and protect their judicial independence, and that it does not set out objective criteria for the assignment of cases to judges, which would allow heads of courts to assign specific judges to cases against the right of every citizen to their natural judge. The law also fails to clearly address the separation between the prosecution and the executive power.
Moreover, the Special Rapporteur is seriously concerned by the fact that the law does not provide judges with basic fair trial guarantees in the framework of disciplinary procedures. The law prevents judges to be represented by a lawyer to defend themselves before a disciplinary court, and does not provide them with an effective right to challenge a disciplinary decision before a higher court, in breach of the constitutional and internationally recognized right of every person to have a judicial decision reviewed by a higher tribunal and to be represented by a lawyer of one’s own choice before a court.
Finally, the law keeps the system whereby judges are seconded to perform non-judiciary work within the executive branch and raises the period of secondment from three to six years. Such secondment is incompatible with the separation of power and the independence of the judiciary. More worryingly, no objective criteria are set for decisions of secondment: therefore such decisions can be used as a significant pressure on judges to threaten them or reward them, and therefore seriously infringes their independence.
In a 14 June 2006 statement, the Special Rapporteur had already expressed his concerns on the draft law, as well as on the disciplinary proceeding against judges of the Court of Cassation and on the violent repression of peaceful demonstrations in support of the judges and their claims for the protection of their independence.
The independent expert reiterates his call to President Mubarak not to promulgate the law and to allow for its re-discussion in the Parliament with the full participation of the Judges’ Club and experts in constitutional law, in order to allow the Parliament to adopt a considerably improved version of the law which guarantees the proper functioning of an independent judiciary. The independence of the judiciary is a fundamental cornerstone of democratic societies which cannot be sacrificed. It is a fundamental safeguard for justice and for the protection of the human rights of all people in Egypt".
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