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Al-Ahram Weekly 31 August - 6 September 2000 Issue No. 497 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 31 August - 6 September 2000 Issue No. 497
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Travel Living Sports Profile People Time Out Chronicles Cartoons Letters Courting constitutionality
By Nur Farahat *One suspects that Nathan Brown, political science professor at George Washington University, is at this moment in the process of revising the conclusions he drew in The Rule of Law in the Arab World (Cambridge University Press, 1997) in light of the Egyptian Supreme Constitutional Court's ruling that Article 24 of Law 73/1956, on the exercise of political rights, is unconstitutional. Because this article violated Article 88 of the Constitution, which provides for full judiciary supervision over the electoral process, it called into question the legitimacy of the last parliament. Although the term of that parliament has just ended, President Mubarak nevertheless acted prudently and efficiently, introducing an executive law to make the necessary legislative amendment ensuring full judiciary supervision over parliamentary elections.
The ruling constitutes a milestone in the pivotal role the Supreme Constitutional Court has played in regulating the relationship between the executive and legislative authorities, and in many other areas as well. Since its inception in 1971, this court has annulled 119 legislative provisions pertaining to many important and sensitive issues in Egyptian political and social life. Moreover, it has invalidated three parliamentary assemblies.
Brown does not subscribe to the common view that the emergence of the modern Egyptian legal system is linked to the general liberal trend prevailing in Egypt during its transition to a capitalist economy. Rather, he holds that it is the product of the process of centralisation, intended to tighten the state's grip on society's affairs. This analysis, however, is at odds with the record of the Supreme Constitutional Court, not to mention that of the Court of Cassation and the State Council Court, in safeguarding the separation of authorities as well as civil and human rights. The record of these courts, moreover, is all the more significant in view of the blurred lines between the government and ruling party and the general failure to admit that respect for the Constitution must override party affiliations. How can it be said that the Egyptian judiciary is an extension of the centralised state when it has consistently engaged liberal principles in the defence of civil and human rights, even at the expense of the legislative authority's stability or the executive authority's policies?
On the other hand, it is not necessarily a cause for joy that the rectitude of our political system requires the courts' constant vigilance. That, too, is an unnatural situation. Constitutional jurisprudence in France, for example, frequently suggests that government by the judiciary implies the absence of democratic values in society, or at least an insufficient consciousness of these values. The judiciary's primary function is to prevent deviation from the law; if it is compelled too frequently to intervene in legislative matters affecting political life, one must conclude that some essential flaw exists.
What is the flaw in Egyptian political institutions that compelled the Constitutional Court to invalidate parliamentary elections three times running and to rule dozens of legislative acts unconstitutional? Why was the Court of Cassation forced to nullify the membership of many parliamentary deputies and why did the State Council rescind the decisions of the Political Parties Committee on numerous occasions?
The recent Supreme Constitutional Court ruling illustrates some of the dynamics of the situation. This ruling addressed the long-standing demand of opposition parties and advocates of democracy in Egypt. The ruling party, which represents the government, has, of course, always had a stake in securing as great a majority in parliament as possible, and its response to the opposition's demand has been twofold. It argued, firstly, that there were not enough judges to oversee the balloting process in all polling stations and, secondly, that judiciary monitoring was a formal supervisory capacity that did not require the actual physical presence of judges at the polling stations. The court's ruling upheld the opinion of the opposition and further held that practical considerations should not impede the implementation of a constitutional provision, particularly as there was nothing to prevent holding elections over several days.
The ruling simultaneously cast into relief an important weakness in our political system: the general inability of the opposition parties to influence legislative realities alone. Because the ruling party represents the overwhelming majority in parliament, and abides strictly by the directions of the executive authority, the executive authority has become the primary source of all legislation.
One could argue that this situation is only natural; that as long as the ruling party represents the majority in parliament, it must necessarily determine the trend of legislation. However, this reasoning can cover a multitude of ills. After all, party allegiance in parliament should never be so strong as to supersede the oath members take to respect and abide by the Constitution.
Simultaneously, the opposition in a democratic society should do far more than to whisper slogans. Freedom of expression is a cardinal tenet of democratic practice, but, alone, it is an insufficient condition for effective popular participation in the decision-making process. If a society's governing institutions lack the mechanisms to ensure that the opposition not only has the ability to voice its views but to act on them so as to influence the direction of legislation, then these institutions are marred by a fundamental flaw.
In all events, while the recent Constitutional Court ruling may have furnished the bases for fair elections, the elections' fairness is also contingent upon the voters. No matter how stringent the legal provisions, there must exist the awareness and determination to translate them into reality.
*The writer is professor of law at Zaqaziq University.
