The Cairo Court of Cassation on Monday released details of its ruling reversing President Mohamed Morsi's 2012 decision to appoint a new prosecutor-general.
The Cairo Court of Cassation's judiciary members directorate concluded that Morsi's appointment late last year of Talaat Ibrahim as prosecutor-general – along with the concurrent dismissal of former prosecutor-general Abdel-Meguid Mahmoud – was null and void.
Following is an unofficial translation of the verdict's main points, as stated by the court:
In accordance with the legal judicial immunity granted to the prosecutor-general, members of the judiciary and the public prosecution, the prosecutor-general shall retain his post until he reaches the age of retirement. During his term of office, he shall not be transferred to other judicial work, unless upon his request.
As the [appointment] decision represents a direct violation of the judiciary's constitutional immunity, as well as the prosecutor-general's immunity under the current judicial authority law, the decision should have been put before a popular referendum so as to enjoy constitutional legitimacy, rather than being unilaterally issued, immediately upheld and made immune by the executive authority, from which the prosecutor-general should enjoy immunity.
Under article 77 (B) of the Judicial Authority Law (which remains in effect according to article 222 of Egypt's newly-ratified constitution), the decision shall not be considered a legal or constitutional decree unless it is ratified by Egypt's Supreme Judicial Council.
The appointment was based upon a presidential decree that was in turn based upon a constitutional declaration, which was never put to a public vote. The terms of the new constitution, therefore, were not applied following its enactment.
Human rights and basic freedoms, which are acknowledged in international and regional human rights declarations, are among the most agreed-upon supra-constitutional principles. These include the right of litigation and the prohibition of the immunisation of any decision from appeal before an independent judicial authority.
The principles of judicial independence and judges' invulnerability to dismissal are acknowledged in successive Egyptian constitutional documents, including the newly-ratified constitution.
Former prosecutor-general Abdel-Meguid Mahmoud is entitled to file his lawsuit in his capacity as prosecutor-general at the time of the issuance of the presidential decree, which laid down the mechanism governing the new prosecutor-general's appointment. The [appointment] decision was issued prior to the enactment of the new constitution and its provisions.
Decisions included in the two disputed constitutional declarations [issued by President Morsi in November and December 2012] were not put before a popular referendum and therefore the articles contained therein do not enjoy the status of constitutional declarations, which enjoy legislative immunity.
According to the Judicial Authority Law and its successive amendments, the invulnerability of judges to dismissal represents a main pillar of judicial independence.
