The appointment of Farouk Sultan as new chairman of the Supreme Constitutional Court refuels speculation about the 2011 presidential elections, reports Gamal Essam El-Din
Two weeks ago President Hosni Mubarak appointed new heads to Egypt’s five highest courts. Farouk Sultan was appointed chairman of the Supreme Constitutional Court (SCC) and Adel Abdel-Hamid was appointed chief justice of the Court of Cassation. Mohamed El-Husseini was chosen to head the State Council; Sedqi Abdel-Rahman Kholosi was appointed head of the State Cases Authority and Intessar Nessim Hanna as head of the Court of Appeals. It is the appointment of Sultan, 68, as chairman of the SCC that has stirred the greatest controversy. The position means he is ex officio head of the Supreme Presidential Election Commission (SPEC), the ten-member commission in charge of supervising presidential elections.
Under amendments to Article 76 of the constitution the chairman of the SCC also chairs SPEC, which exercises sweeping powers over presidential elections, supervising the voting process and announcing the final results. In his capacity as chairman of the SCC Sultan is also charged with giving a final opinion on the constitutionality of new legislation. Article 84 of the constitution also states that should the office of president fall vacant because the president of the republic is unable to carry out his duties the head of the SCC will take over the presidency until elections are held. Given the pivotal nature of Sultan’s new role it was perhaps inevitable that his appointment be met with suspicion. Mahmoud El-Khodeiri, a reformist independent judge, argues that Sultan is not the right man for the job. Nor, says El-Khodeiri, should the president of the republic name the man who will be responsible for heading the SCC. “This is a glaring breach of judicial independence. President Mubarak should rather be keen that chief judges, as well as those of the SCC, remain completely independent, from the president of the republic in particular, and from the executive authority as a whole.”
El-Khodeiri believes it is unfair that Mubarak should appoint the chief judge who will be in charge of supervising the 2011 presidential elections which Mubarak, or his son, is expected to contest. “How can Sultan be a fair and neutral head of the Commission charged with supervising elections in which President Mubarak — the man who appointed him — is likely to run?” El-Khodeiri points out that the current minister of justice, Mamdouh Marei, was chairman of the SCC during the 2005 presidential elections. “Some believe that at the absence of international monitors Marei manipulated the 2005 presidential elections in favour of Mubarak and as a result was promoted later to the position of the minister of justice,” says El-Khodeiri.
Mahmoud Mekki, another reformist judge, claims the SCC has been led by government placemen for the best part of a decade. In the 1980s and 1990s, he argues, the SCC acted independently of both the government and presidency. “They ordered twice in the 1980s that the People’s Assembly be dissolved and ruled in 2000 that the 1990 and 1995 People’s Assembly elections were rigged and that parliamentary elections should be fully supervised by judges,” said Mekki. “The 2000 SCC ruling, in particular, irked the government and President Mubarak very much, prompting the latter to make sure that future chairmen of the SCC remained loyal to him and that their rulings did not cause any political troubles for the regime.” El-Khodeiri recalls that in 2006 President Mubarak chose Maher Abdel-Wahed to be chairman of the SCC, though he was previously a prosecutor-general and a criminal law judge. “He, like Sultan, was chosen because of loyalty rather than any experience in constitutional law,” says El-Khodeiri. Before his appointment Sultan had served as chief justice of the Cairo Southern Court and head of the commission supervising polls at professional syndicates, a post which embroiled him in disputes with both lawyers and engineers. He also served for 10 years as a judicial member of the Military Prosecution- General. Some political activists have joined forces with El-Khodeiri and Mekki, alleging that in appointing Sultan political factors weighed more heavily than expertise in constitutional affairs. “Mubarak wants to ensure that the man who will be in charge of the presidential elections in 2011 is completely loyal to him,” asserts Saad Abboud, an independent MP and member of the newly-elected board of the Syndicate of Lawyers. “The choice of a loyalist who has no experience in constitutional law to be the head of the SCC suggests that President Mubarak is seeking to guarantee 2011’s presidential elections run smoothly in his favour, or else that the SCC play a role in preparing the constitutional ground for Mubarak’s son Gamal to inherit power from his father.” Mohamed El-Dakrouri, chairman of the ruling National Democratic Party’s (NDP) Ethics Committee and a former legal adviser to President Mubarak, claims such arguments are unfounded.
Article 173 of the constitution, he says, empowers President Mubarak, in his capacity as chairman of the Supreme Council of Judicial Authorities, to name the head of the SCC. “Appointing the SCC’s chairman does not mean that the president has the upper hand in the court or that its chairman is politically loyal,” says Dakrouri. “Rulings issued by the SCC are the outcome of deliberations by members of its board as a whole rather than by its chairman.” “The important question is how rulings are issued by the SCC,” Dakrouri continued. “During the 1980s and 1990s the SCC issued rulings both in favour and against the government.” A case in point, he says, was the 1997 SCC ruling that privatisation did not contradict with the constitution which gave the government a green light to go ahead with economic policies in the face of stiff objections from opposition groups. He refutes claims that SCC orders in the 1980s that the People’s Assembly be dissolved had irked Mubarak. “By contrast, President Mubarak implemented these orders at once, urging NDP officials to amend election laws so as not to be ruled unconstitutional,” said El-Dakrouri. “President Mubarak has repeatedly denied that he is grooming his son, Gamal, to be the next president and describes repeated rumours about this as rubbish,” says Dakrouri. “Inheritance of power is in complete contradiction with Article 76 of the constitution which draws a roadmap to the presidency, clearly stating that political parties and independents be allowed to run in presidential elections provided they meet the necessary conditions.”