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Al-Ahram Weekly 10 - 16 August 2000 Issue No. 494 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 10 - 16 August 2000 Issue No. 494
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Books Travel Living Sports Profile People Time Out Chronicles Cartoons A time to judge
By Nabil Abdel-Fattah *
A new and dynamic conception of the role of the Egyptian judiciary has been taking shape over the past two decades, manifested primarily in the framework of the regulation of the relationship between the various branches of government, ie, at the very heart of the political process, and impacting on fundamental civil and political rights.
The judiciary has customarily been perceived as the arbiter in administrative, civil and commercial litigation. More common yet is the perception of the judiciary as the enforcer of criminal law. Certainly, it is crime that receives the most widespread coverage in the press, and which is heavily dramatised on screen.
Yet a new awareness of the role of the judiciary is beginning to extend beyond the confines of scholarship and legal and political practice. It had its beginnings in September 1981 when the Supreme Administrative Court ruled executive detention decrees unlawful, ending the immunity of executive decisions justified for decades on the grounds of "national sovereignty." Soon, with the introduction of the multi-party system, the courts acquired the power to confer legitimacy upon newly established political parties, as testimony to which stand the Wafd, Nasserist and other marginal parties. The judiciary proceeded to establish the legal principles that have acted as a bastion for fundamental civil rights, including the right to peaceful assembly. Abdel-Mohsen Hamouda's tenacious pursuit to secure the right to peaceful assembly in order to hold a commemorative ceremony in honour of Mustafa Nahas Pasha, the pre-revolutionary prime minister and head of the Wafd Party, is but one case in point.
The founding of the Supreme Constitutional Court gave additional impetus to appeals against legislative provisions that restrict human and civil rights. Individuals such as Kamal Khaled and Kamal El-Nasharti have been instrumental in spotlighting the role the Constitutional Court has come to play in safeguarding the constitution and in protecting constitutionally guaranteed rights.
The Constitutional Court's ruling to declare the 1990 parliament void on the grounds of the unconstitutionality of Article 24.2 of Law 73 of 1956, in accordance with which civil servants were entitled to oversee auxiliary polling stations, was a landmark decision.
By its recent ruling, confirming the right of the judiciary to supervise parliamentary polling stations, the Constitutional Court has taken yet another lead in upholding constitutional principles and establishing precedents. Further, in affirming its right to validate or abrogate the constitutionality of legal provisions, the court has asserted itself as a vital component in the checks and balances necessary to the political process.
In their interpretation or reconstruction of constitutional provisions, constitutional legislators do not operate in a void. They are constrained by what they deem to be the needs and aims of the society for which the constitution is designed. The Constitutional Court's ruling to abrogate Article 24.2 of the 1956 law on the exercise of political rights, taken precisely with such considerations in mind, helped rectify the balance of political power in society. In a similar vein, constitutional rulings can compel the government and ruling party to reassess their policies and strategies on a host of issues related to the balance of political power, affecting, among other things, their dealings with the opposition parties and the selection process for ruling party parliamentary candidates.
The constitutional judiciary system in Egypt is the backbone of whatever exists of a modern state. By defending constitutional values, principles and institutionalised mechanisms of government, safeguarding them against infraction, it seeks to ensure the effective separation of powers and the proper functioning of the executive and legislative branches of government. In addition, an analysis of the referential framework for the Supreme Court's rulings reveals that it functions to entrench and foster the sovereignty of law, democracy and human rights, as these concepts have come to be understood across the civilized world.
The historic ruling of the Supreme Court came in response to a suit filed against the government by El-Nasharti, a lawyer who ran in the parliamentary elections of 1990. El-Nasharti had filed a suit against the provisions of Law 73 of 1956 permitting non-judiciary members to oversee auxiliary polling stations, provisions which violated Articles 40, 62 and 88 of the Constitution, all of which pertain to the monitoring by the judiciary of parliamentary elections. The quashing of the unconstitutional provisions has far reaching implications for the electoral process, bringing to the fore a number of important principles.
First, the right to stand for elections and the right to vote are intrinsically interrelated. It is essential to safeguard the full and effective exercise of these rights in order to ensure the practical application of the constitutionally stipulated guarantee that citizens have the right to elect their parliamentary representatives.
Second, not only does the constitution guarantee that every citizen has the right to exercise his political rights, it further exhorts citizens to participate in public life. Indeed, it extols such participation as a patriotic duty that should be undertaken in those realms in which the sovereignty of the people manifests itself, as this is the foundation of any system based on the will of the electorate.
Third, while Article 62 of the Constitution permits legislators to regulate the exercise of political rights, such activity is tempered by the important caveat that all legislation must conform with the spirit of established constitutional principle and provision.
Fourth, Article 88 of the Constitution states that voting in parliamentary elections must be monitored by members of the judiciary. This provision is clearly intended to ensure the integrity of the voting process and the optimum fulfillment of its objectives. As the recent court ruling announced, members of the judiciary "are the best able to carry out the supervision of the balloting process due to their impartiality and the fact that they are subject only to the dictates of their own conscience." It continues: "In order for voters to be able to choose their representatives in a safe and confident climate [judicial] supervision must be substantive rather than merely formal or professed."
Fifth, as the preceding suggests, if the balloting process in the auxiliary polling stations is to comply with the law, all possible efforts must be made to obviate any tampering with results. The balloting process rightfully occupies an exalted place in the democratic system, guaranteeing the citizens' right to elect their parliamentary representatives, and hence constitutes a manifestation of the sovereignty of the people, which, as Article 3 of the Constitution states, is the source of all authority.
Sixth, it is essential to introduce legislative provisions to enable the judiciary to perform its supervisory tasks effectively. The objection that there are insufficient members of the judiciary to supervise auxiliary polling stations -- a long-standing government argument -- is unjustified. If the constitution ordains effective judicial supervision, such a provision cannot be suspended or postponed simply because of its seeming impracticability, particularly as there is nothing that ordains that parliamentary elections must be staged on the same day. To think otherwise is to render constitutional guarantees and conditions devoid of substance. As the court said in its recent ruling: "Any excuse on the grounds that practical considerations stand against the application of the constitution's provisions is not acceptable, because constitutional requirements cannot be parleyed by excuses."
The important principles brought to the fore by the recent Constitutional Court ruling have had numerous political repercussions. Above all, it lent support to the positions of opposition parties, such as the Wafd, which has based its platform on constitutional and legal issues, and specifically the extent to which certain laws, regulations and government decisions conform with the principles and provisions of the Constitution.
The Wafd, the Tagammu and other opposition parties have long called for full and effective judicial supervision of the electoral process to safeguard that process against the falsification of polling cards, tampering with ballot boxes and other forms of rigging. Their position is not without substance. Until recently, only five per cent of polling stations have been subject to judicial supervision, the remaining 95 per cent being headed by civil servants.
As a result, with respect to the issue of democracy and the electoral process, the government and the ruling party have, at least for the present, been placed on the defensive in the lead up to the forthcoming parliamentary elections.
Over the past five decades, certainly, a certain laxity has come to characterise much policy formulation. It must be noted that on several occasions the government has itself sought to introduce legislation that contained constitutional discrepancies, knowing full well that such laws would eventually be subject to appeal on the grounds of their unconstitutionality. In so doing, it aimed to achieve specific, short-term objectives. One was to obtain an overwhelming majority of seats in parliament to allow for the smooth passing of a range of laws -- pertaining to property ownership and various aspects of the social-political system -- that would not have been possible had parliament more accurately reflected the various political forces in society. A second aim has been to exclude political forces that might jeopardise the composition of the ruling elite.
Another important issue raised by the recent Constitutional Court ruling concerns which members of the judicial branch are qualified to supervise polling stations. Should this capacity, say, be extended to members of the prosecutor general's office? The opposition, certainly, would argue that only those members of the judiciary acting as judges should fulfill such a role.
The Constitutional Court in Egypt represents a continuation of the traditions, values and institutions of the modern justice system, which has formed an avenue towards the modernisation of political life in Egypt in general. And it appears that the institution will continue to forge this path.
* The writer is an expert at Al-Ahram Centre for Political and Strategic Studies.
