The amendment to Article 185, which allowed the judiciary to organise its own affairs, removes reference to each bodyʹs "independent budget". Moreover, it adds a paragraph giving the president the authority to appoint the heads of the judicial institutions, from a pool of seven candidates based on seniority, for one period of four years.
It also allows for the creation of a high judicial council, headed by the president, to oversee appointments, secondments and promotions within the judiciary. The presidentʹs advisory role on this council would allow him to become the arbiter for draft laws that regulate judicial affairs.
Article 193, which deals with the Supreme Constitutional Court (SCC), currently gives the courtʹs General Assembly the authority to select the head of the court and his deputies. The proposed amendment to the article will instead give the president the authority to select the head of the court from among the five most senior vice presidents of the court. In the articleʹs proposed form, the president further has the authority to select these vice presidents from between two candidates, one nominated by the head of the court and the other by its General Assembly.
The amendments also give the president the power to appoint the head and members of the SCCʹs Commissioners Committee, a panel of experts that provides non-binding legal opinions, from among nominees provided by the SCC president. While court rulings and legal rulings favouring the military and executive branch had gradually been undermining the independence of the judiciary, these amendments provide a constitutional basis for curtailing judicial autonomy that will be nearly impossible to reverse.
Paving the way for more corruption
The amendments also affect Article 190, which outlines the duties of the State Council, the system of courts responsible for resolving disputes among state administrative bodies and between the state and the general populace. The proposed changes remove the councilʹs responsibility for reviewing contracts signed by the state or one of its public institutions – and does not designate a replacement.
This removes any judicial oversight over government contracts, increasing the power of the government and opening up opportunities for more graft. Considering that the military has been heavily increasing its economic footprint with the help of government contracts, it is bound to profit from removing this oversight.
In addition, where the State Council currently reviews all legislation to ensure it is in line with the Constitution, the proposed amendment also states that it will now only review legislation that has been referred to it. This significantly reduces the ability of the State Council to challenge the executive – especially since it was embroiled in a protracted legal struggle with the regime over the transfer the island of Tiran and Sanafir to Saudi Arabia.
Reducing the power of the State Council can therefore also be seen as way to punish it and make further protracted legal struggles between the government and the judiciary unlikely.
The anticipated passage of these amendments will re-draw the Egyptian political system and remove the last pretence of separation of powers or the subordination of the military to the elected government. Egypt is set to become a military dictatorship in name as well as deed.
Maged Mandour is a political analyst and writes the "Chronicles of the Arab Revolt" column for Open Democracy.