THE HIGHEST AUTHORITY?
The Constitution and the law in Egypt


Part 1: Analysis of Higher Constitutional Court rulings
Part 2: Historical reasons for unconstitutional laws
Part 3: Constitutional control systems
Part 4: The importance of a system of judicial control
Appendix 1: Higher Constitutional Court rulings referred to in the report
Appendix 2: Human rights and civil liberties provisions in the Constitution which have been violated


Introduction


Background

The Egyptian Constitution provides many guarantees against the abuse of human rights and civil liberties. A series of rulings by the Higher Constitutional Court has revealed that many existing laws seriously violate the human rights and civil liberties guarantees that are enshrined in the provisions of the Constitution.

These rulings have led to a heated debate over the role and jurisdiction of the Court in regulating both the legislative authorities and (since laws can be passed by presidential decree) the executive authorities.

The Government's response to the current debate indicates a worrying tendency to limit the scope of the Court's jurisdiction and downgrade its role to that of a consultative authority.

The executive authorities, represented by the president, decide which judges preside in the Higher Constitutional Court. Consequently, the Court's independence from both the executive and legislative authorities is somewhat restricted. However, CHRLA considers that the Court has a vital role to play in upholding the provisions of the Constitution and that its independence and the extent of its jurisdiction should be consolidated and expanded.

Scope of the report

The government claims that only a small percentage of laws have been found to be unconstitutional. The report investigates the actual extent of this phenomenon. Part I contains an analysis of 93 Court rulings (until February 1996) on unconstitutional laws.

Part II defines the historical reasons for the existence of unconstitutional laws and, in Part III, the development of the constitutional control system in Egypt is examined and compared with the mechanisms used to regulate laws in other constitutional systems.

Lastly, in Part IV, the significant role of the Higher Constitutional Court is clarified and ways in which this role can be supported, rather than weakened, are suggested.

Summary of conclusions

1. The problem of unconstitutional laws has serious and far-reaching implications.

a) To date, the Higher Constitutional Court has ruled that 53 of the Constitution's 211 articles (i.e. about 25 percent) have been violated by various laws.

b) Various laws have violated almost all of the human rights and civil liberties guarantees contained in the Constitution. These include: equality between citizens, (violated 34 times); the right to private property (violated 31 times); citizens' rights to nomination and voting in various local and national government bodies, including the People's Assembly, (violated eight times) and the principle that the State itself is subject to the law (violated eight times)!

c) The Government has been compelled to dissolve two People's Assemblies, a Shura Council and several local councils because the People's Assembly (controlled by a large majority of National Democratic Party (NDP) members) insisted on passing unconstitutional laws regulating the elections for these bodies.

2. The problem of unconstitutionality is not limited to laws dating from before 1971.

The Government claims that most of the laws that have been found to be unconstitutional were passed decades ago. However, the report shows that, whereas 36.5 percent of the laws ruled unconstitutional were passed before the 1971 Constitution was in place, 63.5 percent were passed subsequently. Of these, 38 were passed during President Sadat's presidency and 22 during President Hosni Mubarak's presidency. Many other laws have been challenged as unconstitutional and have been dismissed on technicalities.

3. The use of presidential decrees has significantly contributed to the problem of unconstitutional laws.

Thirty-four of the 93 rulings of unconstitutionality by the Higher Constitutional Court concern laws which were originally issued as presidential decrees. Twenty-one of these were issued by President Nasser, 16 by President Sadat and three by President Mubarak.

4. The constitutional and parliamentary void experienced during the Nasser presidency significantly contributed to the problem of unconstitutional laws.

During President Nasser's presidency, precedence was given to revolutionary legitimacy over legal and constitutional legitimacy. During this period, there was no People's Assembly for nine years and no one People's Assembly completed its full five-year term. The problem was aggravated by the one-party system and by the absence of civil institutions in the form of political parties, unions, etc.

All these factors undoubtedly contributed to the existence of laws which were later found to be unconstitutional.

5. The problem of unconstitutional laws continued, during the Sadat presidency, because of the wider scope and greater use of presidential powers.

The provisions of the 1971 Constitution allow the president to issue decrees having the force of law, whether in the presence or the absence of the People's Assembly, and to take other exceptional measures including dissolving the People's Assembly, "if necessary." These provisions strengthened the executive authorities at the expense of the legislative authorities.

The ruling NDP was established, and headed, by President Sadat and the large NDP majority in the People's Assembly was always prepared to allow Sadat to issue presidential decrees and to approve any law proposed by the executive authorities - whether it contradicted the Constitution or not.

6. The lack of an effective opposition in the People's Assembly during President Mubarak's presidency has contributed to the problem of unconstitutional laws.

President Mubarak has not sought to widen the scope of presidential powers with regard to the law. However, the fact that the NDP, headed by the President, controls an increasingly larger majority of seats in the People's Assembly has contributed to heightened pressure by the executive authorities on the legislative authorities.

The current People's Assembly is also characterized by low attendance and a lack of debate. Accordingly, some of the most far-reaching legislation has been passed by a tiny proportion of members. For example the 1992 Political Parties Law was passed by a vote of only 16.5 percent of the total members and the 1995 Press Law by a vote of only 7 percent of the total number of members.

Laws proposed by the executive authorities are increasingly being passed within just a few hours, or days at the most, of the draft being presented. Protests as to the unconstitutionality of some of these laws from the few opposition members within the People's Assembly have been ignored.

7. Additional safeguards should be considered to avoid unconstitutional laws.

The report recommends the consideration of several alternative solutions aimed at limiting the problem of unconstitutional laws. Among these are providing the Shura Council with a role in this respect or referring draft laws to the State Council for revision or re-drafting before they are passed.

8. The role of the Higher Constitutional Court remains crucial in controlling the problem of unconstitutional laws.

CHRLA completely rejects any suggested alternatives which would supersede the authority of the Higher Constitutional Court and calls on all those concerned with the proper implementation of the Constitution and the principles of human rights to uphold the jurisdiction of the Higher Constitutional Court.

9. The role of the Higher Constitutional Court should be developed and strengthened.

CHRLA considers that by lifting some of the restrictions which currently limit the role of the Higher Constitutional Court the problem of unconstitutional laws will be alleviated. For example, institutions and individuals should be given the right to file direct suits to the Court challenging the constitutionality of a law.

A full-scale revision of the Court's role is necessary but CHRLA stresses that any changes should be carefully considered and strictly regulated to avoid future problems.




Introduction | Part 1 | Part 2 | Part 3 | Part 4 | Appendix 1 | Appendix 2

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