The vital role of the SCC
Today, Egypt's Supreme Constitutional Court rules on the constitutionality of two important pieces of legislation, underlining the crucial role it has played in the country's recent history, writes Ahmed El-Tonsi*
Egypt has been avidly awaiting two verdicts for weeks that may be issued by the country's Supreme Constitutional Court (SCC) on highly politically sensitive issues that will have repercussions on the elections, both presidential and legislative. A changed political landscape will inevitably result from either of the two verdicts, leading to the possible dissolution of parliament and /or the cancellation of the results of the first round of Egypt's recent presidential elections.
At the same time, the reports of the Court's Commissioner body, though not binding on the Court, have highlighted the fact that the challenged laws, the law on the legislative elections and the law on political isolation, are constitutionally void. As a result, Egypt's courts, politically active during the rule of former president Hosni Mubarak, have become all the more so after his ousting. Egypt was once described by Judge Brinton of the old Mixed Courts as being a "litigious society", and the country has been witnessing increased activism on the part of the judiciary over the past few decades, particularly in the domain of rights, including the whole set of political rights such as the rights to party formation and political participation. Many litigants have also pursued legalistic approaches to redeeming their political, economic or social rights.
The SCC has not been an exception to the increased activism on the part of the courts, where these have become the main forum for adjudication on political demands raised by those excluded or asking for a greater role on the political scene. It has been in the forefront of the Egyptian judiciary in safeguarding human rights over recent decades. The SCC, for example, twice declared legislative elections held during Mubarak's rule to be void, leading to the dissolution of two out of eight parliaments. Moreover, it has also been highly active in the domain of safeguarding property rights, and it held unconstitutional many of the Nasserite decrees of the 1950s and 60s, for example, laws that sequestered agricultural property or nationalised other assets, on the grounds that they encroached on inviolable private property rights safeguarded by the constitution.
Put differently, the SCC has been one of the major players in the political arena over recent decades, and it has reflected, as well as enhanced, some of Egypt's patterns of sociopolitical development over the last few decades. The emergence of the SCC as an independent judicial institution has been the outcome of the judiciary's struggle to attain and maintain its autonomy against the intrusions of the executive. It has been a chapter, a very important one, in the history of the Egyptian judiciary. It is therefore important to look at the performance of the SCC within a historical context related to the evolution of the judicial review of the laws in Egypt, as well as the history of the judiciary as a whole.
THE HISTORY OF JUDICIAL REVIEW: Apart from the 1971 Constitution, no Egyptian constitutional document, starting from the Constitution of 1923, has ever mentioned the judicial review of the laws as being a prerogative of the Egyptian judiciary. The judiciary's acquisition of such a vital function should be interpreted as a major leap on its part, with the judges being able to assert their independence vis-³-vis the executive.
According to the legal scholar Enid Hill, "while it is true that the major features of the Egyptian judicial institutions are identifiably copied from their French counterparts, yet in the course of the years since the reception of French codes and judicial institutions many of these laws and institutions have become Egyptianised." Of particular importance among such adaptations within the Egyptian judicial system has been the intrusion of judicial review, something that has not had a French counterpart until very late in the French Fifth Republic when the prerogatives of the French Constitutional Council were expanded in 2008. In contrast, it was in the early 1920s that Egypt saw the beginning of cases raising claims of the unconstitutionality of a given law. A famous lawsuit before the Alexandria Criminal Court, for example, where the defendants, a group of Egyptian Marxists, were accused of forming an illegal association with the aim of manipulating workers and farmers against landowners, a crime punishable by Article 151 of the Penal Code, was fought on the grounds, made by the defendants under Article 14 of the 1923 Constitution, that this Article was constitutionally void since Article 14 guaranteed freedom of opinion.
The Court examined the claim of non-constitutionality and concluded that there was no contradiction between the challenged law and the 1923 Constitution, which did not stipulate the right of Egyptian courts to decide on the constitutionality of the laws. This verdict was upheld by the Court of Cassation at the time, then a special circle in the Criminal Court, for the same reasons of the conformity of the challenged law with the 1923 Constitution.
Further lawsuits were then raised claiming the non-constitutionality of certain laws, among them the Tala primary court case in 1926 and a later case heard before the Court of Appeal in 1941, and both of these reflected the uncertainty of the judges at the time over the right of Egypt's courts to rule on the constitutionality of the laws. Yet, the fact remains that the few lawsuits raising the issue at the time did have significant political implications, reflecting the characteristics of the era. The Tala case, for instance, turned on a conflict in the elections law that had been tailored by Ziwar Pasha in order to exclude the Wafd from winning the elections and gaining a majority in parliament.
There were two schools of thought, holding diametrically opposing views, regarding the possible judicial review of the laws by the Egyptian courts. Lawyer Wahid Raafat was a strong opponent of the Egyptian courts' right of review, claiming that Article 15 in the laiha (administrative order) pertaining to the procedures of the courts prevented them from interpreting or suspending administrative orders. By analogy, Raafat claimed that the laws, superior to administrative orders in terms of legal hierarchy, could also not be interpreted or examined by the courts.
On the other hand, another school of thought, led by Al-Sayed Sabry, was a strong advocate of the courts' right to review the laws. Sabry claimed that depriving the courts of the right to decide on the constitutionality of the laws was a violation of the supremacy of the law, which implied the submission of the ruler and the ruled to the law. The absence of constitutional provisions mentioning the right of the courts to judicial review was unimportant, he held, since there was nothing in the constitution prohibiting the courts from deciding on the constitutionality of the laws.
Debates of this sort continued up until the famous verdict handed down by the State Council in 1948, which ruled for the first time against the constitutionality of a given law and thus asserted the right of the Egyptian courts to revise the laws. This new competence came after three landmarks had reshaped the history of the Egyptian judiciary. The first was Egypt;s signature of the Treaty of Montreux in 1937, which provided for the end of the capitulations system and the phasing out of the Mixed Courts that had existed in the country since 1875 and even a few years prior to the establishment of the National Court in 1883. According to scholar Nathan Brown, Egypt became fully independent in all judicial and legal matters after the signature of the Montreux Treaty.
This independence was further consecrated by the law of 1943 that for the first time established the major premises of the independence of the Egyptian judiciary. Both developments, the Montreaux Treaty and Law of Judicial Independence, were carried out by the Wafd government at the time. However, at the same time this government looked with scepticism on the third development related to the establishment of the State Council. It distrusted this, thinking that the Council would be used against its supporters, particularly after the appointment of one of the Wafd's critics as the Council's first Speaker. Ironically, the only beneficiaries of the law later voided by the State Council were Wafd supporters who had been denied the promotions and compensations offered by the Wafd government while in office, seeing these canceled by its successor minority government led by Ahmed Maher.
The 1948 ruling by the State Council was the watershed between two stages in the history of judicial review in Egypt, and it can be said that the State Council under Judge Sanhouri had both de facto and de jure caused the country's judiciary to acquire the right to decide on the constitutionality of the laws. Legal scholar Ahmed Kamal Abul-Magd has pointed out that the State Council used the same reasoning as that of Justice Marshal in the famous Marbury vs Madison United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the US Constitution.
JUDICIAL REVIEW UNDER NASSER AND SADAT: Several verdicts were later issued by the State Council that asserted its right to decide on the constitutionality and the legality of decrees, decree-laws and laws that may have constituted infringements upon constitutional rights. This active role claimed by the State Council lasted until its confrontation with former president Gamal Abdel-Nasser in 1954, which practically ended its growing role in safeguarding civil liberties and rights. The establishment of the Supreme Administrative Court in 1955 then started a new phase in the domain of the judicial review of the laws in Egypt, with the latter ruling on the constitutionality of nearly all the challenged laws, including those standing in contradiction to the various constitutional documents promulgated during Nasser's rule. Many such decree laws were later brought before the SCC, which has voided many of them, particularly those disallowing the right to litigation.
The Nasserite era represented a setback for the evolution of judicial review in Egypt, and in effect the whole judicial institution suffered from the interventions of the executive during that period. Exceptional courts and laws were endorsed by the regime in its pursuit of reshaping Egypt's economy and society. All the redistributive measures undertaken by Nasser, such as the agrarian reforms, the nationalisations and the sequestration decrees, were laws that reflected the rising revolutionary tide in society that was in complete antagonism to the essentially liberal, if not conservative, nature of the Egyptian judiciary. Though the draft constitution of 1954 stipulated the establishment of the Constitutional Court, this was not in fact established until 1969. Apart from the exceptional courts and laws, Nasser throughout his rule avoided any direct intervention in the judiciary, and what was later described as the "Massacre of the Judiciary" took place during the crisis of the regime in the aftermath of the 1967 setback. It was part of a deeply entrenched mistrust of the judiciary.
Many reasons lay behind the confrontation between the Nasser regime and the judiciary, as represented by the Judges Club. They included issues such as the judges joining the Arab Socialist Union, which infuriated many inside the judiciary. The role of the Judges Club at this time was also instrumental in escalating the conflict with the Nasser regime. One of the decree-laws (81/1969) constituting the "Massacre of the Judiciary" established the Supreme Court, giving it exclusive authority to decide on the constitutionality of the laws. Moreover, this decree-law stipulated additional prerogatives for the newly established Court, including the highly controversial function of its being able exclusively to interpret the articles of the Constitution. Opinions differ about why the regime chose to establish the Supreme Court at this time. The fact remains that the regime sought to establish a political court that could apply a tinge of legitimacy to its decisions, while not linking this to the regular judiciary and its opponents in the Judges Club. The first circle of the Court was to be selected by the executive, and this added much to the sceptical attitude of the judiciary towards the newly established Court.
The performance of the Court itself was mixed. Under certain circumstances it showed itself ready and able to perform independently, while in others it was subject to the whims of the subsequent regime of former president Anwar El-Sadat, particularly in the domain of constitutional interpretation. This was abused by Sadat in his fight against his political opponents, among them Kamaleddin Hussein. Sadat's policies of the Open Door Policy, de-Nasserisation, and the peace negotiations with Israel, as well as his global policy shifts towards the US, all led to opposition to the regime. Yet, it is important to mention that judicial review was first formally stipulated in 1971, a year that saw the passage of articles describing the prerogatives of the Court. Following much debate among the judges, the Bar Association and the ministry of justice, Sadat enacted Law 48/1979 regarding the establishment of the Supreme Constitutional Court, which started its sessions in 1980.
THE WORK OF THE SUPREME CONSTITUTIONAL COURT: The new law to a great extent bypassed the various inadequacies of the law establishing the Supreme Court, and accordingly it was a real leap forward towards the establishment of a truly independent constitutional court in Egypt. Excessive abuse of the Supreme Court by Sadat meant that the new law avoided the major loopholes that had rendered the Court vulnerable to executive intervention, put into effect through changes to the structure and prerogatives of the newly established SCC. According to legal scholar Tamer Mustafa, there was a connection between the establishment of the SCC as an independent judicial institution and the growing need to reassure foreign investors about the investment climate in Egypt in the aftermath of the failures of Sadat's Open Door Policy, as illustrated in the food riots of January 1977.
Gradually the SCC started to perform its assigned role of deciding on the constitutionality of the laws, and its rulings in this domain took place mainly during the rule of former president Mubarak, who showed an initial enthusiasm for the rule of law and personal reverence for the judges and the judiciary. As a result, the SCC took strides to assert its role through rulings that touched upon many aspects of Egypt's politics, economy and society.
Some have wanted to classify the work of the Court from 1979 onwards into various phases. For example, Mustafa argues that the first phase, of emergence, corresponded to the early years of the Court (1979-1990), during which it pushed beyond the boundaries that the regime had intended for it in both its economic and political rulings. It was during this period that the SCC was able to protect property rights by invalidating some of the sequestration decrees issued by the Nasser regime, such as decree 150/1964, as well as later laws issued by Sadat, and to compensate those who had suffered from sequestration, including from laws 69/1974 and 141/1981.
Safeguarding private property rights was the main reason behind the Court's ruling invalidating many of the articles in the nationalisation decrees, namely 72/1963, 117/1961, 118/1961, 38/ 1963, 112/1961 and 134/1964. The ruling of the Court against law 104/1964 is also worth noting, this having denied reparations to landowners whose property was taken into state ownership under agricultural reform laws 178/ 1952 and 127/1961. It can be seen that the SCC's actions to protect private property rights were extensive in this period, and the emphasis placed by the Court on the inviolability of such rights was further stressed when it ruled that private property was crucial to the development of economic individualism, which played an important role in economic development and investment. Put differently, the SCC did not concentrate only on protecting or redeeming private property. It evidently thought that private property could be an instrument in bringing about the new economic order that the Court might have a role in establishing.
This role was clear in the various rulings of the Court regarding privatisation (203/1991), rent control (49/1977) and labour law. Such rulings were mostly handed down in the 1990s, which in many people's eyes saw the expansion of the Court's role in many domains. This expansion, particularly in the domain of privatisation, enabled the Mubarak regime to avoid popular criticism of newly adopted neo-liberal economic policies. What looked curious was the Court's verdict citing its own understanding of the words "public sector" in the 1971 Constitution, which according to Mustafa were interpreted in an extremely liberal way.
According to legal scholar Lama Abu Odeh, "the market-orientation has relied for its implementation on the Supreme Constitutional Court playing this role from the top of the judicial structure and striking down the special legislation of the Importation Substitution Industrialisation (ISI) era. Using the pet rules of the market (contract and property, located in the Egyptian Civil Code), the SCC overturned much of what it treated as 'distorting' legislation passed under the ISI." Ironically, the Court, originally established to safeguard socialist gains under Nasser, later acted to legitimise the privatisation programmes. It also exhibited its assertiveness in safeguarding private property through its rulings voiding certain taxation laws, such as the taxation of Egyptians working abroad (229/1989), these verdicts having been irritating to the regime because of their financial and political implications.
In the political arena, the performance of the SCC was pivotal to the establishment of the rule of law as well as the consecration of many civil rights. As mentioned earlier, the SCC was able to assert its independence vis-³-vis the executive in two landmark rulings, the dissolution of parliament in 1987 and then again in 1990. Moreover, the Court was able to set binding legal principles illustrative of its perspective on the separation of powers. In practice the SCC has acted as a real check on the executive as the major lawmaker through voiding many laws it held to be in contradiction with the 1971 Constitution. The voiding of certain electoral laws was just the tip of the iceberg here, given the various rulings of unconstitutionality issued by the SCC against many presidential laws and decree-laws.
Of particular importance were the Court's rulings in the domain of civil liberties and rights, where the Court's verdicts have had extensive implications as a result of its rulings on the constitutionality of laws that it held constituted violations of constitutional rights guaranteed by the 1971 Constitution and including the right to litigation, the right to form and join political parties, the right to freedom of opinion, etc. The role of the SCC in fostering the development of political parties, as well as professional syndicates, was another dimension of this. Safeguarding the freedom of association was the main reason behind the SCC's verdict voiding law 153/1999 on associations, which regulated the rapidly growing area of politically active NGOs.
It also made a contribution to the establishment of due legal process through its voiding of laws that it saw as lacking procedural protections for the accused, such as law 74/1970 on the police surveillance of suspects and decree-law 98/1945 on suspects. A further important verdict was handed down requiring full judicial supervision, invalidating article 24 of law 73/1956. This ruling attracted the anger of the regime, which did its best to curb growing legal activism.
PROSPECTS OF THE SCC: Changes to the procedure for selecting speakers of the SCC by recruiting them from outside the ranks of the Court were part of the regime's attempt to contain the SCC's actions. Many observers have highlighted how the SCC was not able to resist regime pressure in the case of the transfer of civilians to be tried before military tribunals, in which the SCC interpreted law 25/1966 to mean that the president had the right to transfer civilians for trial before military courts.
It would be an over-simplification to suppose that the SCC would be able to go head to head with the Mubarak regime after decades of Mubarak's personal rule. The two forces were unequal, and the regime was losing its patience with the activist role played by the SCC in various domains. According to Brown, "in a series of constitutional amendments in 2007, the regime took steps to ensure that the liberal loopholes the judges had found in Egypt's authoritarian order were closed. Election monitoring, for instance, was handed to electoral commissions. And the authority of the president to refer suspected terrorists to the military courts, which was constitutionally dubious though quite common prior to the amendments, was enshrined in the amended text."
Today, the SCC has been asked to decide on the constitutionality of two laws related to the elections. Surprisingly, the two laws have been rendered controversial through the deliberate intervention of the majority trend in parliament, led by the Freedom and Justice Party (FJP), which maximised its opportunities in the legislative elections as a result of the uneven and hybrid electoral system that combined party lists and independent nominees. The same mistake that had twice been made by the ousted ruling party under the Mubarak regime, the National Democratic Party (NDP), was now being made again, and it will be remembered that in the former case the SCC had each time ruled against the constitutionality of the challenged laws.
In other words, the FJP has been repeating the same mistakes made by the ousted regime, intending to serve the same objective of expanding its control over the legislature. Will we now witness a third dissolution of parliament for the same reasons, yet with different actors? The second question the SCC has been asked to rule on is related to the law on political isolation, which was drafted, discussed and enacted in an exceptionally short time. Once more, this law, reminiscent of those passed by the NDP, has been selectively tailored to meet the needs of specific constituencies and is caught in the same web of unconstitutionality.
The SCC has been one of the most important actors on the Egyptian political scene, and the 25 January Revolution represents a new era in its history. Early signs of the eventual loss of executive domination look promising. That the SCC for the first time in its history has been able independently to select its speaker can be seen as a new development in its pursuit of achieving its long-awaited goal of full independence.
* The writer is a political analyst.