At a general assembly of the State Council convened on 13 May 500 judges — 90 per cent of those present — opted to oppose the government by sending the name of just one nominee for the post of State Council chairman to President Abdel-Fattah Al-Sisi. The assembly opted for Yehia Al-Dakrouri, the most senior member of the State Council, to replace Mohamed Massoud when he retires as chairman in July. Al-Dakrouri, the oldest deputy chairman, was the judge who in last June ruled that the Red Sea islands of Tiran and Sanafir could not be transferred to Saudi Arabia. The general assembly's decision represents an open challenge to recent amendments to the law regulating the appointment of the heads of judicial bodies. Under the government-drafted changes, each judicial body is obliged to send the names of three nominees for chairman to the presidency. It is then up to the president to decide between them. In a press release issued on Saturday the State Council said the general assembly had reached a consensus over putting forward a single name, that of Al-Dakrouri. State Council Deputy Mohamed Khafaga insisted the decision was not made with the intention of challenging the president. “We feel no hostility towards anybody. The decision was made out of respect for the principle of seniority which has applied in judicial circles for many years,” said Khafaga. Before the new law was passed the oldest deputy chairman would be the sole nominee to take over from a retiring chairman and the president's role was limited to endorsing his appointment. Legal experts say the State Council is not in violation of the new law which does not explicitly prevent them from presenting a single nominee. Article 4 of Law 13/2017 stipulates that candidates' names must be submitted to the president 60 days before the chairman's seat becomes vacant. If the authority fails to meet the deadline, the nominees do not meet the required criteria or less than three names are presented the president then has the right to appoint a new head from among the seven oldest deputies. The State Council is the only judicial body to refrain from applying the judicial bodies law, passed late last month, in full. Keen to avoid a possible clash with the executive the Court of Cassation, the Administrative Prosecution Authority and the State Litigation Authority — the three other authorities subject to the law — said they would abide by its articles while campaigning to have the law repealed. Many commentators say the law was tailored to prevent Al-Dakrouri, whose ruling hindered the process of ceding the two islands, from automatically assuming the chairmanship of the State Council. Legal experts and rights lawyers rallied behind the general assembly's decision. Lawyer Tarek Negeida wrote on his Facebook account that “a wise state will not antagonise 554 State Council judges who sent the name of Al-Dakrouri to the president for appointment.” According to constitutional expert Nour Farahat, the general assembly decision opens up the possibility of several scenarios. In the first scenario, he says, the president could let the storm pass and issue a decree appointing Al-Dakrouri, though Farahat thinks this unlikely. “Another scenario is that the president appoints a new head from among the seven oldest deputies,” though this could be problematic if, as Farahat believes, the six other possible nominees have already made up their minds not to accept the position. Then, says Farahat, the president would have no choice but to appoint Al-Dakrouri. “We have repeatedly warned that in passing this law parliament is provoking a clash of authorities,” says Farahat. Leading lawyer Essam Al-Islamboli welcomed the general assembly decision. He described the State Council judges as “defenders of the constitution, judicial independence and legitimacy”. Immediately after the law was ratified Al-Islamboli filed a lawsuit before the administrative courts calling for a halt in the implementation on the grounds that it violates the constitution. Proposed by parliament in December 2016 the law angered judges who said it handed the executive the right to interfere in judicial affairs, thus undermining the principle of the separation of powers guaranteed by the constitution. “Sooner or later the judiciary will annul such an infamous piece of legislation,” predicted Al-Islamboli.
