Rule of Law in Egypt

Original contributionby Hatem Elliesie, Doctoral Candidate and Academic Coordinator of the Horn of Africa Projects at Freie Universitaet Berlin, Germany, Vice-Chairman of the Board of the Arabic and Islamic Law Association and member of the Executive Committee of the African Law Association.

I. Rule of Law in Egypt's Context

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In November 2007, the Minister of Justice prepared a draft law to implement this constitutional provision, defining the composition, competencies, and rule of procedure of that council. That law would have questioned the immunity of judges, and decreased the powers of the Supreme Council of Judicial Bodies. (For the text of the draft law see al-Misrī al-Yawm, Cairo, 20 November 2007.) In front of the unanimous criticisms addressed to this draft law by almost all judicial bodies, the Minister of Justice decided to amend the proposal, before the President of the Republic finally requested its withdrawal (Bernard-Maugiron 2008: 406).

III. Judicial Review

Wiki-MarkupGenerally, the Egyptian judicial system is based on French legal concepts and methods. Judges are familiar with civil law systems' concepts, and despite the huge case backlog and time-consuming proceedings, the principles of the due process and judicial review are inherently cherished and respected (Abdel Wahab 2008). In Egypt's current legal system constitutional review is carried out by a special constitutional court (Lombardi 2000: 234). The so called _al-Mahkama ad-Dustūriyya al-'Ulyā_ (Supreme Constitutional Court), the successor institution of the Supreme Court established by Law No. 81 of 1969, was launched in 1971 by the adoption of Egypt's new Constitution (Stilt 2006: 341; Omar Sherif 2002b: 323; Omar Sherif 2000: 1; Elwan 1990: 314; Mulack 1972: 187-194). The Constitution did not provide, however, many details about the new court in its respective Articles 174-178. In implementation thereof, Law No. 48 (1979) (published in al-Mahkama ad-Dustūriyya al-'Ulyā 1981) was issued, organizing the status and competence of the Supreme Constitutional Court (Lombardi 2008: 236; Lombardi 2006: 144; Fahmi 2000: 214). Law No. 48 (1979) (see _al-Jarīda ar-Rasmiyya_ \ [Offical Gazette\], No. 36, Cairo, 9 June 1979, pp. 530-538) entrusted the court with judicial review (Omar Sherif 2002a: 326; Omar Sherif 2000: 1; Elwan 1990: 314). Not surprisingly, the Supreme Constitutional Court acted to protect the courts' power to check legal and administrative abuses and its own specialized power to exercise constitutional review over most government action (Omar Sherif 2002a: 339-400). In short, during the 1980s and 1990s the courts and the Supreme Constitutional Court in particular tried to ensure what North American colleagues would think of as procedural due process. That is to say, they tried to protect individuals from executive and legislative abuse by (1) requiring the political branches to act only through the mechanisms permitted them by the constitution, and (2) ensuring that the branches remain subject to criticism for offensive actions (Lombardi 2006: 148). Historically in Egypt, the "rule of law, \ [at least\] as envisaged by judges, focuses on achieving fairness and equity in application of the law much more than it focuses on making good law" (Brown 1997: 118; Lombardi 2006: 148). Starting in the early 1990s, however, the Supreme Constitutional Court has departed from the traditional judicial focus to advance a substantive, and not simply procedural, view of the rule of law (Brown 1997: 119). The court ruled e.g. that the scope of the power of judicial review "applies to law in its wider objective sense, that of legislative texts creating general and abstract legal status, whether such texts are enshrined in the status adopted by the legislative power, or in subsidiary status adopted by the executive power within its competence as defined by the Constitution. All such texts are characterized by their vast scope of application and the unlimited number of those subject to them. Consequently, if they were to be declared null and void by the Supreme Constitutional Court, the effects would be also far-reaching \ [...\]. That is why it was necessary for such a judicial review to be entrusted to one single court." (Al-Mahkama ad-Dustūriyya al-'Ulyā 1995).unmigrated-wiki-markup

Moreover, like some recently created European constitutional courts, the Supreme Constitutional Court has consistently held that the constitution must be interpreted as an organic whole (Johansen 1997: 365). In this regard, the third President of the _al-Mahkama ad-Dustūriyya al-'Ulyā,_ Muhammad 'Aī Balīgh, stated that "the straight completion of the constitutional building will rise through this organic unity which characterizes the order of constitutional norms. This unity will realize the congruity of the texts of the constitution and it will remove the obscurity that may be mixed with it and the contradiction with which people may think it to be afflicted. Moreover, this court has this organic unity in mind whenever a case put before it is connected with an internal contradiction, which the contestant portends to see between the legal texts he contests and the norms of the constitution. Rather, one has to appeal \ [_bi-l-ihtikām ilā ahkām ad-dustūr_ _jam'ihā_\] to all the constitutional norms so that the Court may make sure that the contested texts do not contradict each other." (Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1984 hattā dīsambar sanat 1986, Dār al-Hannā li'l-Tabā'a, Cairo 1994, 4). In the process of an organic interpretation, the Court has identified a handful of meta-principles that implicitly provide the unifying thread for all constitutional principles. Among these the Court has singled out four that are of particular importance, e.g. an overarching principle requiring Egypt to remain "democratic" (see e.g. Al-Ahkām allatī asdarathā al-Mahkama min Uktūbar 1981 hattā Dīsambar sanat 1983, Dār al-Hannā li-t-Tabā'a, Cairo, no date, 131/ 144; Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1984 hattā dīsambar sanat 1986, Dār al-Hannā li-t-Tabā'a, Cairo 1994, 360; Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1987 hattā'āhar yunyū sanat 1991, Matābi' Dār Akkhbār al-Yawm, Cairo, no date, 98 et seq.) and to respect the separation of powers, and a commitment to ensure that Egyptian law respects the "rule of law" (see e.g. Supreme  Supreme Constitutional Court's Deputy Chief Justice's article Omar Sherif 2002: 318-319).

IV. State Security Courts

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