Constitutional Earthquakes are Coming
/Few people are interested in earthquake research until the earth starts to move beneath their feet.
Constitutional earthquakes are likely coming in Egypt, probably in waves, many of which have the potential to substantially change the nation's political landscape. Legal tremors are already apparent, and to those who understand the seismic pressures that have already built up along Egypt's constitutional and judicial fault lines, it is as plain as day that earthquakes may happen at any time, especially with regard to human and political rights. The time to anticipate them is now, rather than being caught off guard and hastily trying to understand them on the fly when they happen.
Egypt has three powerful and surprisingly autonomous supreme courts: Court of Cassation, Supreme Constitutional Court, and Supreme Administrative Court. The Court of Cassation is the supreme court of the common court system. The Supreme Constitutional Court (SCC) is a specialized court with exclusive jurisdiction to rule on the constitutionality of laws. The Supreme Administrative Court (SAC) has jurisdiction over cases challenging the legality of government actions, including such issues as the conduct of elections and actions taken to regulate non-government organizations (NGOs).
When necessary funding support is obtained (a work in progress), the purpose of the Egypt Justice Project is to explore and publish legal analyses of the jurisprudence of all three supreme courts regarding issues critical to the future of Egypt.
At the Court of Cassation level, several important issues are in need of research and analysis:
- What are the grounds for the Court of Cassation’s consistent reversals of injudicious lower court judgments, including mass convictions? Is there a pattern, or patterns? What are the legal and factual standards being applied?
- Is there a disconnect between the jurisprudence of the Court of Cassation and practices of some trial court judges regarding standards of justice and due process of law, as the consistent reversals by the Court of Cassation of convictions in sensitive or controversial cases across the political spectrum appear to indicate? If so, on what issues and why?
- What judicial currents within the general court system and most importantly within the Court of Cassation are most likely to dominate and shape the future jurisprudence of the Court of Cassation?
However, the issues with the greatest potential to change the political landscape in Egypt are at the Supreme Constitutional Court and Supreme Administrative Court levels:
Political isolation laws: In a series of rulings in 1986, 1987, and 1988, the SCC struck down political isolation laws denying the right to participate in political life to various political opposition groups. Against that background, when the SCC was presented with a case challenging the constitutionality of the post-revolution political isolation law banning officials of the former ruling National Democratic Party (NDP) from running in the 2012 presidential election, from a legal standpoint the outcome was virtually a foregone conclusion—same facts, same law, same ruling. In view of that jurisprudence and the court’s strong tendency to adhere to precedent, what is the potential for similar outcomes in current cases challenging the constitutionality of political isolation laws aimed at the Muslim Brotherhood and other opposition groups? What is the potential for application of that jurisprudence by the SAC to current government practices?
Election laws: In a line of cases decided between 1987 and 1990, the SCC ruled unconstitutional election laws at the national and local council level limiting candidates to those on state-approved political party lists or tipping the scales in favor of candidates backed by state-approved parties. Two People’s Assemblies were dissolved and new elections were held. Against that background, when hybrid party list/individual candidacy parliamentary election laws were decreed by the Supreme Council of Armed Forces (SCAF) in 2011, the court cited its prior jurisprudence in holding the election laws to be unconstitutional for stacking the deck in favor of party-backed candidates, and again ordered the unconstitutionally elected People’s Assembly dissolved. What is the potential for the same thing to happen again in cases before the SCC and SAC challenging the constitutionality of current election laws and conduct of elections?
- Right of military and police personnel to vote: In May 2013, in the first case to arrive before the court squarely presenting the issue, the SCC ruled that a provision in a draft electoral law continuing the long-standing practice of prohibiting military and police personnel from voting was unconstitutional. The rationale was straightforward: the 2012 constitution provided that every citizens shall have the right to vote; military and police personnel are citizens; therefore it would be unconstitutional to deny citizens serving in the military or police forces the right to vote. The 2014 constitution similarly provides in Article 87 that every citizen shall have the right to vote, subject to government regulation. Article 92 provides that no law regulating the exercise of the rights of citizens may restrict them in a way that infringes upon their essence and foundation. Article 87 states that the law may grant exemptions from the performance of the duty to vote (in Egypt, the law penalizes failure to vote), but says nothing about denying the right to vote. In light of the language of the constitution and the SCC's past jurisprudence, what is the potential for current laws prohibiting military and police personnel from voting to result in SCC and/or SAC invalidation of elections in which the right to vote to was denied to two huge classes of citizens?
NGO laws: In 2000, the SCC struck down a repressive NGO Law. Article 75 of the 2014 constitution provides that NGOs may be formed and acquire legal status “upon notification.” Current and proposed future NGO laws impose far more legal restrictions on the formation of NGOs than notification. In light of the constitution and the SCC’s prior jurisprudence, what is the potential for those NGO laws and current government restrictions on NGO activity to be declared unconstitutional?
Protest and demonstrations laws: Article 73 of the constitution provides that citizens have the right to organize public meetings, marches, demonstrations, and “all” forms of peaceful protest, while not carrying weapons, upon providing notification, as regulated by law. The current protest law requires police approval, not just notification. In light of Article 73 and other provisions of the constitution relating to citizens’ freedom of speech and association, what is the potential for the current demonstrations law and government restrictions on protest activity to be declared unconstitutional?
Terrorism laws: In view of the extraordinary breadth of Egypt’s terrorism and terrorism entities laws, what is the potential for the SCC to hold at least some aspects of those laws to be unconstitutionally overbroad, and for the SAC to prohibit some application of those laws to nonviolent protesters and opposition groups and figures?
Freedom of Religion: Article 53 of the constitution states that citizens are equal before the law, possess equal rights and public duties, and may not be discriminated against on the basis of religion or belief. Article 64 of the constitution states, “Freedom of belief is absolute. The freedom of practicing religious rituals and establishing places of worship for the followers of revealed religions [note: meaning Muslims, Christians, and Jews, but not others] is a right regulated by law.” (Italics added.) Article 65 provides that all individuals have the right to express their opinion through speech or any other means of expression or publication. The SCC and SAC (as well as the Court of Cassation) both have jurisprudence relating to the line between religious belief and practice and to government regulation of the latter, including regulation of religious speech. (The Court of Cassation and SAC, for example, have jurisprudence relating to issues such as blasphemy and apostasy from Islam.) What are those lines? How is the constitutional balance struck? Is the state of the law settled or still in flux? How does Article 53 relate to religions other than Islam, Christianity, and Judaism? Based on their past jurisprudence, how are the SCC and SAC likely to rule in future cases?
Military court jurisdiction over civilians: Article 204 of the constitution provides that civilians cannot be tried before military courts except for crimes that represent a direct assault against military facilities, military barracks, or whatever falls under their authority; stipulated military or border zones; military equipment, vehicles, weapons, ammunition, documents, secrets, public funds, or factories; crimes relating to conscription; or crimes representing a direct assault on military officers or personnel because of the performance of their duties, all as defined by law. Article 97 provides that individuals may only be tried before their natural judge and that extraordinary courts are forbidden. What is the potential for the current law expanding military jurisdiction to virtually all public facilities and universities, resulting in the practice of military prosecution of thousands of civilians for offenses having no other apparent connection to the military, to be declared unconstitutionally overbroad?
Freedom of the press: The SCC has pre-2011 revolution jurisprudence defending freedom of the press. Article 71 of the 2014 constitution states that it is prohibited to censor, confiscate, suspend, or shut down Egyptian newspapers and media outlets in any way, subject only to the exception of limited censorship that in time of war or general mobilization, and to crimes relating to incitement to violence, discrimination against citizens, or impugning the honor of individuals. What is the potential for application by the SCC and SAC of that and related provisions of the constitution to current laws and government practices restricting freedom of the press?
Equal rights: Article 53 of the constitution states that citizens are equal before the law, possess equal rights and public duties, and may not be discriminated against on the basis of religion, belief, sex, origin, race, color, language, disability, social class, political or geographic affiliation, or any other reason. What is the potential impact of that provision on current and future laws?
Application of international human rights agreements and conventions: Article 93 of the constitution states that agreements, covenants, and international conventions of human rights ratified by Egypt have the force of law. What is the potential legal impact of that constitutional provision to current laws and government actions?
Yes, it is readily apparent that constitutional earthquakes are likely coming in Egypt, many with the potential to substantially alter the political landscape. Stay tuned for further developments.