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Will the real Prosecutor General please stand up? - Daily News Egypt

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Will the real Prosecutor General please stand up?

The legal conundrum of interpreting the ramifications of the court verdict reversing Abdel Meguid Mahmoud’s dismissal


The Ministry of Justice proposed a new draft law requesting a new committee to be formed (AFP Photo)
The Ministry of Justice at the time drafted and passed an amendment to the judiciary law relocating the circuit to the Cairo Court of Appeals
(AFP Photo)

Mahmoud Hamza, the judge who ruled to reverse President Mohamed Morsi’s appointment of Prosecutor General Tal’at Abdallah, said he had received threats from the Minister of Justice.

Hamza told Tahrir TV on Saturday evening that Minister of Justice Ahmed Mekki phoned his father, a former judge, and told him he “knew how to deal” with Hamza and that he would also “deal” with his brother, also a judge.

A judge in the Judges’ Requests circuit in the Cairo Court of Appeals, Hamza ruled on 27 March that Morsi’s appointment of Abdallah was invalid and that former Prosecutor General Abdel Meguid Mahmoud is to be reinstated.

The verdict created a state of legal and constitutional confusion. For his part, Abdallah said the ruling was unenforceable due to its unconstitutionality and that it was likely to be appealed.

Abdallah cannot appeal the verdict himself. Only the State Litigation Authority, which functions as the state’s legal representation, can do so. The State Litigation Authority said it would wait to read the full verdict memo before appealing. The verdict must be appealed within 60 days or it will be declared final.

Whether Abdallah has the right to resume his duties until the case goes through the appeals process, in this case with the Court of Cassation, depends on how one views the Judges’ Requests circuit.

The circuit, which handles all administrative cases filed by judges, is governed by the laws of the administrative courts system. It is not, however, a part of the Administrative Judiciary Court and is instead a circuit inside the Cairo Court of Appeals.

The circuit was a part of the Court of Cassation until 2006 when judges complained that all other sectors of society had the right to appeal verdicts, whereas their affairs were handled by the highest court in the land, meaning they did not have the right to appeal verdicts.

The Ministry of Justice at the time drafted and passed an amendment to the judiciary law relocating the circuit to the Cairo Court of Appeals, having it function as a court of first instance for cases regarding the judiciary, with the Court of Cassation being designated as the appeals court for such cases.

The legislation, Article 83 of Law 146 of 2006, did not specify whether in the case of appealed verdicts made by the judges’ requests circuit the Court of Cassation functions as an appeals court or if it assumes its usual role of a cassation court, a special court that does not make verdicts but only rules on whether to set a case for retrial.

There are cases in which the Court of Cassation functions as a court of appeals and is thus required to make verdicts. According to Article 251 of the Arguments Law, when the Court of Cassation functions as an appeals court the verdict reached by the court of first instance is not suspended automatically because an appeal was filed. Verdicts are only suspended if the Court of Cassation deems it necessary in order to avoid a specific danger or emergency.

The administrative court system, which the Judges’ Requests circuit falls under, states that when the Administrative Judiciary Court, the court of first instance in the administrative court system, makes a verdict and it is appealed, the verdict is not automatically suspended. The verdict is carried out unless the Supreme Administrative Court, the court of appeals in the administrative court system, rules to accept the appeal or takes an emergency decision to suspend the sentence until it has viewed the appeal.

Due to the Judges’ Requests circuit’s status as a special administrative circuit, and the laws governing the Court of Cassation’s behaviour when functioning as an appeals court, the verdict is not to be suspended unless an appeal is made and goes through. Thus, the fact that Tal’at Abdallah is still carrying out his duties as Prosecutor General is illegal.

Article 79 of the constitution specifies that any public official who refuses to carry out a court verdict is to be removed from their position and dismissed.

There is a loophole which Abdallah can use to resume his duties as Prosecutor General and escape legal repercussions until the Court of Cassation rules on the appeal.

The legal text which specifies that the Judges’ Requests circuit follows the rules of the administrative court system is interpreted by some legal experts and judges, including Ministry of Justice staff, as only pertaining to the type of cases the circuit handles and how cases are filed. The actual circuit could be seen as a civil circuit since it follows the Cairo Court of Appeals, a civil court.

In civil or criminal cases an appealed verdict is automatically suspended until the appeals court makes a verdict to accept the appeal or uphold the verdict. By that logic, Abdallah will remain the Prosecutor General until the Court of Cassation makes its verdict, which is what he and Minister of Justice Ahmed Mekki have said.

However, even if Abdallah’s appointment is found illegal and Mahmoud’s dismissal is reversed, Mahmoud has spent more than four years, the term specified in the new constitution, as Prosecutor General. He is thus ineligible for the office.

Instead, the Supreme Council of the Judiciary would be required to nominate a candidate for the position for Morsi to appoint.

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https://www.dailynewsegypt.com/2013/03/31/will-the-real-prosecutor-general-please-stand-up/
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