The Egyptian Organization for Human Rights
Amendment to the Constitutional Court Law
Wednesday 22 July 1998The new amendment to the Constitutional Law constitutes an aggression on legality, a breakdown of the rule of law and a disregard of the principle of equality of all citizens In unjustifiable haste and without previous presentation to the People's Assembly, the genuine legislative body according to Article 86 of the Constitution, the President of the Republic issued Decree no. 168 of 1998 amending paragraph three of Article 49 of the Supreme Constitutional Court Law no. 48 of 1979. The new amendment states that: "Paragraph three of Article 49 of the Constitutional Court Law shall be replaced by the following provision: A ruling of unconstitutionality of a provision of a law or a regulation shall entail the non-applicability of this law or provision as of the date following the publication of the ruling, unless another date is specified by the ruling. However, if a ruling of unconstitutionality is made on a tax provision, it shall be implemented only as of the day following its publication, without prejudice to the benefit that a claimant may get from such provision being ruled unconstitutional." After deep legal study of the new amendment, the EOHR concludes that this amendment comes in the context of a governmental campaign aimed to undermine the supervisory role of the Supreme Constitutional Court to examine the legitimacy of laws and regulations, and to continue its policy of tightening its control on all state's institutions. Moreover, the new amendment breaches the Egyptian Constitution in form and content, and if implemented, it will actually undermine the rule of law in Egypt. The following are the main EOHR comments on the new amendment. First: The amendment reveals straightforwardly that the government is gravely worried and annoyed by the high number of verdicts of unconstitutionality made by the Supreme Constitutional Court. Since its establishment in 1979, the Court declared 121 legal provisions unconstitutional. These provisions comprise 476 infractions of the Constitution. Since 1981, fifty of them were announced unconstitutional by the Court, 32 of which in 1996 and 1997 alone. The Constitutional Court even declared whole laws unconstitutional, which in some instances entailed a change in the financial gains resulted form the implementation of these laws, in addition to compelling the state to reimburse the money obtained through such laws, as has been the case with the law imposing a tax on the Egyptian workers abroad. The EOHR is surprised about the way the government has responded to the vedicts of unconstitutionality of a large number of laws issued by the Constitutional Court. Instead of analyzing the reasons that render the laws issued by the legislative body unconstitutional and amending them, the government has launched an organized campaign against the Supreme Constitutional Court, a campaign that has been joined by some high state officials. And after a failed attempt to present a draft to undermine the whole role of the court, now comes this amendment aimed at ensuring that the government will not have to pay back the funds it obtained from imposing unconstitutional taxes on Egyptians abroad. The EOHR believes that the high number of unconstitutionality verdicts is mainly due to the prevailing political nature of the legislative process, the negligence of the legislative body, and its failure to ensure that all new laws are in conformity with the Constitution. This is particularly true given the hastiness by which the making of laws is characterized in the last period. The EOHR believes that the only possible way to deal with the phenomenon of 'legislative deviation' is by referring to the genuine rules and not by resorting to exceptional laws that, by their very nature, contradict the Constitution. The first step that has to be followed in this regard is to assign the drafting of laws only to experts, and to ensure their compliance with the Constitution. In this regard, article 63 of the State Council Law states that before a new law is issued by any governmental body, the draft law must be presented to the legislative department of the State Council for revision and drafting, or jurists must be assigned in the said department to draft it in order to ensure that the law will be clear, accurate and in accordance with the constitution. The EOHR affirms that the only democratic way to combat the phenomenon of 'legislative deviation' is to reinforce the power of the Supreme Constitutional Court, not to undermine it. All the provisions and principles of the Constitution, regardless of their value, remain theoretical slogans unless an independent body with binding powers becomes responsible for their protection and for securing commitment to them. It may be appropriate here to quote the second Khalifa Omar Ibn Al-Khattab in his famous letter to those he appointed to the judicial affairs: "It is useless to speak about a right that is unenforceable." This is the same belief that led many modern systems to state the right of the judiciary to supervise the constitutionality of laws after practical experience proved over the centuries, and as stated by the Egyptian administrative court on 30 July 1952, that judicial supervision is "The only effective supervision that would guarantee people's natural rights and general freedoms, and keep the regime within its legitimate constitutional limits." Based on this premises, the EOHR affirms that the new amendment devoids of any real meaning the supervisory role undertaken by the Supreme Court, as well as being an attack on the judiciary. The established rule in international judiciary is that 'invalid legal rules are invalid as of the time of their birth.' Given that the rulings of the Constitutional Court are "disclosing", and that its jurisdiction is confined to examine the constitutionality of legal texts as of the time of their issuance, the Court does not deal with the reasons or motives that might have led the legislature to issue them. No doubt, sound legal logic and the considerations of the effectiveness of constitutional supervision impose that a verdict of unconstitutionality of a legal provision or regulation must be enforceable as of its issuance, not as of the time of the ruling announcing its unconstitutionality. The new amendment, in addition, contains a flagrant contradiction by making the challenged law constitutional in the stage prior to the verdict, and unconstitutional after the ruling. This contradiction runs counter to the spirit of justice that must characterize the legislative process. Second: Article 147 of the Egyptian Constitution states that: "In case it becomes necessary during the recess between the sessions of the People's Assembly to take measures which cannot suffer delay, the President of the Republic shall issue decisions which shall have the force of law." But, the explanatory memorandum of the new amendment states that: "Given that a large number of suits presented to the Constitutional Court now are challenges to tax provisions, and that some of these suits would result in grave consequences in such a way that the Court would limit their retrospective effect; and given that the Court holds it sessions in the summer months, and that the People's Assembly will start its ordinary term in November, it was necessary to issue this amendment as a decree, and in accordance with article 147, since it is a measure that cannot be postponed." The EOHR believes that the reasons given in the explanatory memorandum as a justification for the use by the President of the Republic of his exceptional powers on the basis of article 147 of the Constitution are not convincing. The amendment could have been presented to the People's Assembly before the end of its last term, or, rather, the members of the Assembly could have been invited to an urgent session to discuss this law or to wait until next term, in November. All of these were legitimate options that would have respected the provisions of the Constitution. There was no urgent need to encroach on the powers of the People's Assembly. The EOHR believes that the haste with which the amendment was issued was mainly meant to guarantee that the government will be able to evade the consequences of contravening the Constitution and imposing an illegal tax. Third: The new amendment contravenes gravely the principle of the separation of powers. Further, it makes the judges of the Constitutional Court undertake legislative responsibilities, a function that is not for the Court and constitutes a gross intrusion in the jurisdiction of the parliament. Article 178 of the Constitution states that: "… The law shall organize the effects subsequent to a decision concerning the unconstitutionality of a legislative text." This means that deciding the direct or retrospective impact of a verdict of unconstitutionality of a law or a regulation must be governed by the law issued by the authorized legislative power. Contrary to this, the new amendment gives the Constitutional Court the power to decide about he retrospective effect of its rulings. This will involve this Court in legislative matters that are not within its jurisdiction, which is to decide about the constitutionality of a legal provision without examining whether it is appropriate, dangerous, or necessary, and without examining the motives behind its issuance, or deciding the retrospective consequences of the ruling. The Constitutional Court judges but does not legislate. In addition, giving the Court this unconstitutional power would open the door for the executive to interfere into the Constitutional Court. Fourth: The new law disregards the principle of equality between citizens stated in Article 40 of the Egyptian Constitution. It implies an unjustifiable discrimination in the rulings with respect to whether they will have immediate or retrospective impact. On the one hand, the law does not provide equal treatment to people who obtain rulings on the unconstitutionality of a tax provision. In some cases, the Court may state that the ruling has an immediate impact, while in others it may affirm that the unconstitutionality of the challenged provision begins from the day of its issuance, i.e. retrospectively. Similarly, the Court can have the same power with respect to provisions other than those related to taxes. Fifth: The provision stating that a ruling of unconstitutionality on a tax provision will not have retrospective effects contravenes the Constitution, which stresses that citizens must regain the money taken from them upon an unconstitutional law or in an illegal way. Finally, Article 57 of the Constitution states that: "Any assault on individual freedom or on the inviolability of the private life of citizens and any other public rights and liberties guaranteed by the Constitution and the law shall be considered a crime whose criminal and civil lawsuit is not liable to prescription. The state shall grant a fair compensation to the victim of such an assault."
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