JURIST Guest Columnist Mohamed Abdelaal, of the Alexandria University School of Law in Egypt, discusses the complexities of the current state of the Egyptian Supreme Constitutional Court…

After the now-ousted President Mohamed Morsi of the Muslim Brotherhood assumed power in Egypt in June 2012, the country witnessed a huge wave of political polarization. That is, Egypt’s liberal bloc and civil society organizations accused Morsi of attempting to seize power and continued to cast doubt upon his legitimacy. On the other hand, Egypt’s Islamists showed great support for President Morsi, accusing his opponents of trying to halt the state by being biased against the president’s policies and by refusing any initiative to bring the conflicting parties together. Such polarization was evident in the judiciary as well. Specifically, a number of judges gathered in a coalition known as Qudāh mn ajel Misr (Judges for the Sake of Egypt) to support Morsi’s presidency and legitimacy. Likewise, Judge Ahmad El-zined, the Chairman of the Egypt’s Judges Club, led those judges who opposed Morsi, calling for the toppling of his regime.

However, disagreement between the judiciary and the president reached its acme when President Morsi issued the 2012 Constitutional Declaration on November 22, 2012. The declaration immunized the Constituent Assembly responsible for drafting the 2012 constitution, preventing it from being dissolved by the judiciary and its work from being challenged in court. This was in violation of the 2011 Constitutional Declaration issued by the Supreme Council of the Armed Forces (SCAF) and approved in a popular referendum after the Revolution of 2011 to serve as the country’s fundamental law until the drafting of a new constitution. Additionally, the declaration immunized President Morsi’s decrees and decisions from judicial oversight. Further, the declaration dismissed of the Prosecutor General Abdul Majid Mahmoud, who was appointed by President Hosni Mubarak, in violation of the Judicial Authority Act.

However, the way the Supreme Constitutional Court (SCC) responded to this declaration was lame. The Court denounced the declaration, describing it as a mere attempt by Morsi to grab power and to degrade the judiciary by immunizing his decisions. Further, many judges appeared in the media to urge people to demonstrate and protest to topple the declaration. Likewise, rights and political activists strongly opposed the declaration, arguing that it solidified despotism. Thus, the Court’s reaction did not go further than merely objecting without proceeding to any legal-judicial action, which raises the question of whether the Court has the authority to review constitutional acts.

At first sight, reviewing the constitutionality of constitutional acts seems odd simply because judicial review is concerned with the constitutionality of ordinary laws, which are inferior to the constitution. Consequently, the standard of review is whether these ordinary laws are consistent with the measures, norms and principles found in the constitution. Nevertheless, the constitutions of some countries grant constitutional courts the power to examine the constitutionality of constitutional acts. For instance, Article 148(1) of the Turkish Constitution of 1982 (PDF) empowers the constitutional court to review the constitutionality of constitutional amendments.

Further, Article 146(a) of the Romanian Constitution of 1991, as it stands in the 2003 revised version, authorizes the constitutional court to adjudicate on initiative to revise the constitution. Likewise, the constitutional courts of some countries granted themselves the power to decide over the constitutionality of constitutional acts without having such power included in the constitution. Specifically in 2009, the Czech Constitutional Court ruled that Constitutional Act no.195/2009, regarding shortening the term of the Office of the Chamber of Deputies, was unconstitutional on the basis that it was an individual and retroactive act, and thus violated the requirements of a democratic state governed by Art. 9(2), an unamendable (PDF) provision in the constitution. Moreover, in the remarkable case Minerva Mills Ltd. v. Union of India, the Indian Constitutional Court ruled that the 42nd Amendment of the Indian Constitution is unconstitutional because it violates the basic structure of the constitution.

However, in Egypt, the case is different. Specifically, Article 192 of the current Constitution (PDF) of 2013 determines the jurisdiction of the SCC to be: “(1) decide on the constitutionality of laws and regulations; (2) interpret legislative texts; and (3) adjudicate disputes regarding affairs of its members, disputes pertaining to the implementation of its rulings and decisions, disputes between judicial bodies and entities with judicial mandate and disputes that raise implementation of two final contradictory rulings.” In addition, after emphasizing the Court’s power to examine the constitutionality of laws and regulations and to interpret legislative texts; Law No. 48/1979, regarding the establishment of the SCC and the determination of its procedures and jurisdiction, authorizes it to interpret laws and presidential decrees that have the authority of law (Art. 26). Consequently, neither the constitution nor Law No. 48/1979 authorizes the SCC to review the constitutionality of constitutional acts. Further, there is no precedent where the SCC exercised its judicial review power to examine the constitutionality of a constitutional act.

In fact reviewing the constitutionality of constitutional acts is to a great extent related to the idea of a proactive judicial review, which allows the court to proactively test the constitutionality of laws before they come into effect. However, the Constitution of 2013 as well as Law No. 48/1979 support the idea of subsequent judicial review; that is, that the SCC can only review the constitutionality of laws and regulations after their actual issuance and in regard to an ongoing judicial case in which a constitutional challenge is raised. Thus, the idea of proactive review does not actually exist.

Indeed, if the SCC had the authority to examine the constitutionality of constitutional acts in 2012, the Court would have been able to nullify the 2012 Constitutional Declaration issued by President Morsi without being involved in conduct such as threatening not to adjudicate judicial cases and urging the general public to protest. So, the question is how the Court’s jurisdiction can be expanded to review constitutionality of constitutional acts.

The first option is to introduce a constitutional amendment that empowers the SCC to proactively check the constitutionality of constitutional acts and amendments before they become binding. However, this option seems a bit difficult given the complicated procedure for amending the constitution. Precisely, according to Article 226 of the constitution, the amendment may be requested by the president of the Republic or one-fifth of the members of the House of Representatives, before the latter decides to accept the request in whole or in part by a majority of its members. Further, it should debate. If the text of the articles to be amended is approved by a two-thirds majority of the House’s members, the amendment is put to a public referendum within 30 days of the date of approval.

The second option is that the Court can try to add such power to its jurisdiction through affirmative action by ruling on the constitutionality of constitutional acts and amendments by itself, without waiting for a constitutional or legislative authorization. In fact, this approach is likely to be challenged by both the executive and legislative branches on the ground that neither the constitution nor the Court’s law supports it. Despite that, this approach remains effective since the verdicts of the SCC are final and cannot be appealed.

Now the question is what standard of review the Court should adopt. According to Article 226 of the 2013 Constitution, “texts pertaining to the principles of freedom and equality stipulated in this Constitution may not be amended, unless the amendment brings more guarantees.” Thus, the constitution made all provisions regarding the principles of freedom and equality unamendable if an amendment hinders such principles. Consequently, the Court can declare a constitutional amendment or a constitutional act unconstitutional if it infringes the principle of equality or fundamental freedoms or restricts their practice. Further, the Court’s jurisdiction must extend to reviewing amendments that undermine the country’s basic constitutional principles, such as democracy and rule of law. However, the Court must be very cautious while exercising its power. Likewise, the Egyptian jurisprudence must play a great role in developing the standard of review and in determining what is considered a permissible amendment and what constitutes an impermissible one that must be nullified by the Court.

Mohamed Abdelaal is an Assistant Lecturer of Law at the Alexandria University School of Law in Alexandria, Egypt. He is also an S.J.D. Candidate at the Indiana University Robert H. McKinney School of Law.

Suggested citation: Mohamed Abdelaal, Can The Egyptian Supreme Constitutional Court Extend its Jurisdiction?, JURIST-Academic, Oct. 9, 2014, http://jurist.org/academic/2014/10/mohamed-abdelaal-egyptian-court.php