Political Isolation/Participation Laws

The following are summaries, in chronological order, of Supreme Constitutional Court (SCC) cases relating to political isolation laws, or political participation laws. Cases decided under each constitution or constitutional declaration are preceded by a list of the relevant provisions of that constitution or declaration.

Relevant Provisions of 1971 Constitution

Article 8
The State shall guarantee equality of opportunity to all citizens.

Article 14 (first sentence)
All citizens have the right to public offices, which are assigned to those in trust in the service of the people.

Article 40
All citizens are equal before the law. 

They have equal rights and duties without discrimination between them due to race, ethnic origin, language, religion or creed.

Article 47
Freedom of opinion is guaranteed. 

Every individual has the right to express his opinion and to disseminate it verbally or in writing or by photography or by other means within the limits of the law. Self-criticism and constructive criticism is a guarantee for the safety of the nation.

Article 62
Citizens shall have the right to vote and express their opinions in referendums in accordance with the provisions of the law. Their participation in public life is a national duty. The law shall regulate the right to stand for election to the People’s Assembly, the Shura Council and the local councils in accordance with the electoral system it specifies….

Article 66
Penalties shall be personal. 

There shall be no crime or penalty except by virtue of the law. 

No penalty shall be inflicted except by judicial sentence. 

Penalties shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing them.

Article 187
Legal provisions apply only from the date of their entry into force, and shall have no retroactive effect. However, provisions to the contrary may be adopted in other than criminal matters, with the approval of the majority of the members of the People’s Assembly.

Cases Decided Under the 1971 Constitution

SCC Case 56, Judicial Year 6, June 21, 1986 (published in Official Gazette No. 27, July 3, 1986)
The SCC struck down a law that prevented prominent opposition activists from participating in an upcoming People’s Assembly election. 

Law 33 of 1978 (Law for the Protection of the Homeland and Social Peace) stated that “whoever caused the corruption of political life before the July [1952] revolution, either through participation in the leadership or the administration of political parties in power before the revolution … shall be deprived of the right to join political parties, and of the exercise of rights and activities of a political nature ….”

The challenge to that political isolation law was brought by Fu‘ad Serag al-Din, who before the 1952 revolution had been head of the Wafd Party. 

The government argued that the SCC had no jurisdiction over the law because it had been ratified in a popular referendum, making it a political act of the people beyond constitutional review by the judiciary. 

The Court disagreed, and held that the law was an unconstitutional deprivation of political rights and freedom of speech.

(Note: Hundreds of pre-revolutionary figures were thereby returned to political life, including Wafd Party and Nasserist Party leaders.)

SCC Case 49, Judicial Year 6, April 4, 1987 (Official Gazette No. 16, April 16, 1987)
The SCC struck down another provision of the 1978 political isolation law that banned from political life anyone convicted in Anwar Sadat’s 1971 crackdown on opponents of his new government. 

The plaintiff, Dia‘ al-Din Dawud, founder and president of the Nasserist Party, argued successfully that the law imposed a retroactive punishment and denial of political rights in violation of Article 66 of the 1971 constitution (which required individualization of penalties through judicial sentences) and Article 187 (which prohibited the retroactive application of laws in criminal matters). 

(Note: The equivalent ex post facto provision in the 2014 constitution is Article 95.)

SCC Case 44, Judicial Year 7, May 7, 1988 (Official Gazette No. 21, May 26, 1988)
Law 40 of 1977 banned acceptance of any application to form a political party if its leaders had initiated or encouraged principles or practices opposing President Anwar Al-Sadat’s Camp David accords with Israel.

The SCC struck down a provision of that law under which the opposition Nasserist Party had been denied registration because its proposed founding members had publicly expressed their opposition to the peace treaty between Egypt and Israel. 

Relevant Provisions of 2011 SCAF Constitutional Declaration

(Note: Article 14 of the 1971 constitution [all citizens have a right to public office] was omitted from the 2011 constitutional declaration.)

Article 7 (Note: Compare Article 40 of 1971 constitution)
All citizens are equal before the law.

They have equal public rights and duties without discrimination on grounds of race, ethnic origin, language, religion or creed.

Article 12 (Note: Compare Article 47 of 1971 constitution)
The State shall guarantee the freedom of belief and the freedom of practice of religious rites.

Freedom of opinion is guaranteed.

Every individual has the right to express his opinion and to disseminate it verbally, in writing, illustration or by other means within the limits of the law. Self-criticism and constructive criticism is a guarantee for the safety of the national structure

(Note: The provisions of Article 62 of the 1971 constitution relating to the right to vote were omitted from the 2011 constitutional declaration.)

Article 19 (Note: Compare Article 66 in 1971 Constitution)
Penalties shall be personalized.

There shall be no crime or penalty except by virtue of the law.

No penalty shall be inflicted except by a judicial sentence.

Penalties shall be inflicted only for acts committed subsequent to the promulgation of the law prescribing it.

(Note: The provisions of Article 187 of the 1971 constitution relating to a general rule of non-retroactivity of new laws was omitted from the 2011 constitutional declaration.)

Case Decided Under 2011 SCAF Constitutional Declaration

SCC Case 57, Judicial Year 34, June 14, 2012 (published in Official Gazette No. 24 [Subsequent A] on June 14, 2012)

Consistent with its prior jurisprudence under the 1971 constitution, the SCC ruled that Ahmed Shafik, the last Prime Minister to serve under President Mubarak before the January 2011 revolution, could not constitutionally be barred from running for President based solely on his prior political affiliation and government service.

Relevant Provisions of 2012 Constitution

Article 6
The political system is based on the principles of democracy and shura [counsel], citizenship (under which all citizens are equal in rights and duties), multi-party pluralism, peaceful transfer of power, separation of powers and the balance between them, the rule of law, and respect for human rights and freedoms; all as elaborated in the Constitution.

No political party shall be formed that discriminates on the basis of gender, origin or religion.

Article 33
All citizens are equal before the law. They have equal public rights and duties without discrimination.

Article 45
Freedom of thought and opinion shall be guaranteed.

Every individual has the right to express an opinion and to disseminate it verbally, in writing or illustration, or by any other means of publication and expression.

Article 55
Citizen participation in public life is a national duty. Every citizen shall have the right to vote, run for elections, and express opinions in referendums, according to the provisions of the law.

The State is responsible for the inclusion of the name of every citizen who is qualified to vote in the voters’ database without waiting for an application.

The State shall ensure the fairness, validity, impartiality and integrity of referendums and elections. Interference in anything of the above is a crime punishable by law.

Article 76
Penalty shall be personalized. There shall be no crime or penalty except in accordance with the law of the Constitution. No penalty shall be inflicted except by a judicial sentence. Penalty shall be inflicted only for acts committed after a law has come into force.

Article 81
Rights and freedoms pertaining to the individual citizen shall not be subject to disruption or detraction.

No law that regulates the practice of the rights and freedoms shall include what would constrain their essence.

Such rights and freedoms shall be practiced in a manner not conflicting with the principles pertaining to State and society included in Part I of this Constitution.

Case Decided Under 2012 Constitution

In a May 2013 ruling that continues to hang like a sword of Damocles over current election laws, the SCC found nine articles of a proposed political participation law to be unconstitutional, including provisions banning military and police personnel from voting. The court’s reasoning was straight-forward: the constitution guarantees every citizen the right to vote; military and police personnel are citizens; therefore laws depriving military and police personnel of their right to vote are unconstitutional.

(Note: This ruling continues to hang like a sword of Damacles over all subsequent election laws that similarly deny the right to vote to military and police personnel. The critical legal distinction is between denying them the right to vote, thereby violating Article 81 of the 2012 constitution or Article 92 of the 2014 constitution, as opposed to relieving them of the duty to vote or regulating the time, place, or manner of the exercise of their right to vote.)

Relevant Provisions of 2014 Constitution

Article 53 Equality in public rights and duties
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 geographical affiliation, or for any other reason….

Article 87 Citizen participation in public life
The participation of citizens in public life is a national duty. Every citizen has the right to vote, run in elections, and express their opinion in referendums. The law shall regulate the exercise of these rights. Performance of these duties may be exempted in cases specified by the law….

Article 92 Limitations clause
Rights and freedoms of individual citizens may not be suspended or reduced.

No law that regulates the exercise of rights and freedoms may restrict them in such a way as infringes upon their essence and foundation.

Article 95 Punishment
Penalties are personal. Crimes and penalties may only be based on the law, and penalties may only be inflicted by a judicial ruling. Penalties may only be inflicted for acts committed subsequent to the date on which the law enters into effect.

Cases Decided Under 2014 Constitution

[Stay tuned.]