Moustafa Complete

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    6

    Executive Retrenchment and an Uncertain

    Future (19982005)

    Isnt amending the Constitution so easy that it can be done overnight?

    Yes, in Egypt it can take place in a second.

    Question-and-answer session at a lecture by former Chief Justice

    Awad al-Murr at Cairo University, September 25,2000

    By the late 1990s, the Egyptian government was increasingly apprehensiveabout Supreme Constitutional Court activism. In less than two decades of

    operation, the SCC had become the most important avenue for political

    activists to challenge the regime, and the Court continued to issue scores

    of rulings that incrementally undermined the regimes levers of control.

    Egyptian human rights groups were exposing the repressive nature of

    the government both at home and abroad, and rights groups had begun

    to formalize their strategies of constitutional litigation. By 1998, rightsgroups were raising dozens of petitions for constitutional review every

    year. Intent on reasserting its authority, the regime steadily tightened its

    grip on the SCC, the human rights movement, and opposition parties in

    the late1990s.

    This chapter examines the fall of Supreme Constitutional Court inde-

    pendence between1998and2005. In this period, the SCC and its judicial

    support network attempted to stave off political retrenchment by mobi-

    lizing on behalf of one another. Early challenges to the Supreme Con-stitutional Court generated resistance from opposition parties, human

    rights groups, professional syndicates, and the legal profession. Likewise,

    the SCC played a crucial role in defending the human rights movement

    and opposition parties with two of its boldest rulings: one against the

    governments repressive 1999 NGO law and another that required full

    178

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    EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 3/10/2014 2:49 AM via AMERICAN UNIVIN CAIRO

    AN: 206586 ; Moustafa, Tamir.; The Struggle for Constitutional Power : Law, Politics, and

    Economic Development in Egypt

    Account: s6513624

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    Executive Retrenchment and an Uncertain Future (19982005) 179

    judicial supervision of elections. But ultimately, the government was able

    to impose its will by continuously weakening the judicial support network

    and packing the Court with new justices. The exclusive dependence on

    litigation, without more direct modes of political mobilization, ultimatelylimited the ability of political activists to defend themselves and preserve

    Supreme Constitutional Court independence.

    the supreme constitutional court under attack

    As we saw in Chapters 4 and 5, Supreme Constitutional Court rulings

    on property rights claims had drained state coffers of billions of Egyp-

    tian pounds. Pending cases on the SCC docket had the further poten-

    tial to make the early property rights rulings pale by comparison. Most

    significant were ninety-two petitions on the Court docket contesting a

    variety of provisions of the sales tax law. Minister of Justice Seif al-

    Nasr estimated that pending rulings could cost the state up to E 7.7

    billion (approximately $2.3 billion).1 The Constitutional Court was effec-

    tively fulfilling its mandate of protecting property rights against govern-

    ment infringement, but would the government continue to abide by itsrulings?

    The answer to the question came in1998with the first concrete strug-

    gle over Supreme Constitutional Court independence. In July of that year,

    the government attempted to protect itself from pending challenges in the

    sphere of taxation. Mubarak issued a presidential decree that restricted

    retroactive compensation claims as the result of SCC taxation rulings to

    the party initiating the constitutional petition.

    2

    All other citizens wereeffectively denied the right to retroactive compensation for the same

    unconstitutional legislation.3 The explanatory memorandum of the new

    decree rationalized the need for the amendment as the maintenance

    1Al-Ahram Weekly, December1016,1998.

    2 Decree 168 of1998 amending paragraph 3 of article 49 of law 48/1979. The amendmentstates that the outcome of ruling an article in a law or code unconstitutional is that it

    can no longer be applied the day following its publication, unless the ruling sets anotherdate. Ruling the unconstitutionality of a tax article shall only have a direct effect, withoutundermining the benefits to the plaintiff of the issued ruling of unconstitutionality ofthis article.

    3Part of Mubaraks decree theoretically gave the Court more flexibility by allowing itto specify an effective date for rulings of unconstitutionality in noncriminal cases, thusfacilitating its ability to avoid political ruptures (such as the dissolution of the PeoplesAssembly in1987and 1990) if it so chooses.

    Copyright

    2007.

    Cambridge

    University

    Press.

    All

    rights

    reserved.

    May

    not

    be

    reproduced

    ina

    ny

    form

    without

    permission

    from

    the

    publisher,

    except

    fair

    uses

    permitted

    under

    U.S.

    or

    applicable

    copyright

    law.

    EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 3/10/2014 2:49 AM via AMERICAN UNIVIN CAIRO

    AN: 206586 ; Moustafa, Tamir.; The Struggle for Constitutional Power : Law, Politics, and

    Economic Development in Egypt

    Account: s6513624

  • 7/25/2019 Moustafa Complete

    3/41

    180 The Struggle for Constitutional Power

    of . . . social and economic stability. According to the explanatory mem-

    orandum,

    the courts retroactive annulment of a tax means that the government wouldhave to return the revenue spent to cover its obligations to those who paid it.

    This would hinder realizing [the governments] development plans, prevent

    it from developing society, and force it to impose new taxes to cover budget

    deficits. All the above are dangerous effects whose severity would destroy

    the prevailing conditions and disrupt the States budget.4

    The government was quite bold in stating that its objective was to

    shield itself from pending and future property rights claims in the area

    of taxation. This was the first concrete test of whether supporters of the

    Court would rise to the occasion to defend the reach of SCC rulings. As

    with the previous veiled threats to the SCC, the regime faced a storm

    of protest. Opposition newspapers were filled with editorials insisting

    that the decree was unconstitutional on both procedural and substan-

    tive grounds.5 NGOs, such as the new Arab Center for the Independence

    of the Judiciary and the Legal Profession, also joined the fray, printing

    extensive critiques in opposition papers.6 Prominent members of the legalprofession, such as the head of the Cairo branch of the Lawyers Syndi-

    cate, also criticized the decree.7 Minister of Justice Seif al-Nasr and other

    4At the same time, the explanatory memorandum of the decree went out of its way to

    state that it satisfied the requirements of constitutional legitimacy. The explanatory

    memorandum for decree168/1998is reprinted in Abd Allah Nassef,Higiya wa AtharAhkam al-Mahkama al-Dusturiyya al-Ulia qabl al-Tadil wa bad al-Tadil. (Dar al-

    Nahda al-Arabiya, 1998), 7578.5 The procedural argument for the unconstitutionality of the law was that it was unnec-essary for Mubarak to circumvent the Peoples Assembly and issue an executive decree.

    The substantive arguments were based on constitutional provisions protecting property

    rights and protecting access to justice. For example, see Numan Goma, The Legislation

    is Contradictory to the Constitution and an Aggression on the Function of the Court,

    al-Wafd, July12,1998; Amending the Law of the SCC is an Aggression on the Rightsof Citizens, al-Ahali, July 15, 1998; Muhammad Hilal, Three Reasons Behind theAttack on the Supreme Constitutional Court,al-Shaab, August4,1998; MuhammadShukri Abd al-Fatah, Remove Your Hands from the Constitutional Court, al-Haqiqa,

    August 8, 1998. Several of these articles are reprinted in Nassef, Higiya wa Athar Ahkamal-Mahkama.

    6See the extensive report by the Arab Center for the Independence of the Judiciary and

    the Legal Profession printed in al-Wafd, July 14, 1998. Also see the extensive critiqueprovided by the Legal Research and Resource Center for Human Rights, printed inal-Wafd, July 17, 1998. The Center for Human Rights Legal Aid issued its own report afew days later inal-Wafd, July20, 1998.

    7See the article by Abd al-Aziz Muhammad, Treasonous Amendment to the Constitu-

    tion and to the Law!al-Wafd, July16,1998.Copyright

    2007.

    Cambridge

    University

    Press.

    All

    rights

    reserved.

    May

    not

    be

    reproduced

    ina

    ny

    form

    without

    permission

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    publisher,

    except

    fair

    uses

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    under

    U.S.

    or

    applicable

    copyright

    law.

    EBSCO Publishing : eBook Collection (EBSCOhost) - printed

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