Composition and Selection
Article 193 of the 2014 constitution provides, “The [Supreme Constitutional] Court is made up of a president and a sufficient number of deputies to the president.” At present, the number of deputies to the president is ten.
The President of the SCC serves as its Chief Justice, and the Deputies (also called Vice-Presidents) serve as what in the U.S. Supreme Court would be called associate justices.
The constitution also provides for the appointment of a body of commissioners, who are judicial officers who serve as advisory staff to the court: “The Commissioners Authority of the Supreme Constitutional Court is composed of a president and a sufficient number of [vice-]presidents in the authority, advisors and assistant advisors.”
The SCC commissioners conduct a preliminary review of all incoming cases and prepare advisory reports (which may take the form of draft judgments) that are submitted to the court before cases reach the justices for review and decision.
Article 193 of the constitution also stipulates that the court’s president, other justices, and commissioners are selected by the general assembly of the court, meaning the collective body of its sitting justices: “The General Assembly chooses the court’s president from among the most senior three vice-presidents of the court. It also chooses the vice-presidents and the members of its Commissioners Authority, who are appointed by a decree from the President of the Republic. The foregoing takes place in the manner defined by the law.”
In other words, SCC selects its own members, and implicitly even decides how many justices will serve on the court. The President of the Republic has only the authority to make the official appointment as an essentially ministerial formality, not the authority to select whom to appoint
It was not always so. During President Hosni Mubarak’s time in office, he had the unfettered authority to select the SCC’s president, and could choose its deputies from among those nominated on two lists, one submitted by the court’s president and one submitted by the general assembly of the court. President Mubarak also had the authority to decide how many justices would serve on the court.
In 2001, President Mubarak broke with long-standing tradition by failing to appoint the next most senior judge of the court to serve as its president, and instead reached outside the court to both select and appoint Fathi Nagib, who had been the author of much of the illiberal legislation struck down in then-recent years by the SCC. Chief Justice Nagib promptly nominated and gained the presidential appointment of five new justices to the SCC, an obvious move to pack the court with justices more to Nagib’s (and by extension, Mubarak’s) liking. The 2014 constitution was drafted in such a manner as to preclude the potential for a recurrence of such court-packing by the President of the Republic.