The Amendment cancels the Role of the Supreme Constitutional Court And Nullifies Guarantees of the Accused in Criminal Cases

Arab Centre for the Independence of the Judiciary and the Legal Profession

The Arab Centre for the Independence of the Judiciary and the Legal Profession (ACIJLP) followed with profound indignation the Presidential Decree issuing a law amending Paragraph 3 of Law No. 48 of 1979 on the Supreme Constitutional Court (SSC). The amendment stipulates that ” a verdict of unconstitutionality of a text in a law or bill result in its inapplicability as of the day following the publication of the verdict, unless the verdict specifies another date for that. A verdict of unconstitutionality of a tax-related text, can only have immediate effect in all cases, without violating the plaintiff ‘s benefit from the verdict of unconstitutionality of that text “.

Before the amendment, this paragraph stipulated that ” a verdict of unconstitutionality of a text in a law or bill results in its inapplicability as of the day following the publication of the verdict. If the verdict of unconstitutionality was related to a criminal text, rulings issued on the basis of that text are considered null and void. The Head of the Legation Authority immediately informs the General Prosecutor of the verdict to put it into action “.

It is to be noted that the Egyptian government has been annoyed by numerous SCC verdicts, especially regarding the retroactive effect of these verdicts. Clear examples for such verdicts include:

1. The unconstitutionality of the legislative text on the basis of which the People‘s Assembly elections of 1987 took place. One consequence of the SCC‘s verdict issued in 1990 on the unconstitutionality of the text, was the invalidity of the Assembly‘s formation, and therefore necessarily the unconstitutionality of all laws passed by the Assembly. As the SCC realized this would have led to a constitutional breakdown, the verdict asserted that invalidity does not negate laws and decrees passed by the Assembly since its formation and up to the verdict‘s publication.
2. The unconstitutionality of tax laws, as verdicts of unconstitutionality of such laws necessitate returning back the collected taxes.

The ACIJLP estimates that the issuing of this amendment through a Presidential Decree in the absence of the People‘s Assembly, and without the existence of a case of necessity-enabling the President to take hasty measures that cannot be delayed until the Assembly is convened - constitutes a violation of the constitution and the jurisdiction of the legislative authority. It also constitutes a violation of the independence of the SCC, creates unnatural and illogical situations, violates the principle of equality between citizens before the Law, and opens the door for the government to issue unconstitutional legislations. Following are the details.

First: The Amendment Violates the Constitution (the Non-existence of a case of Necessity):

The amendment was based on Article 47 of the Egyptian constitution enabling the President of the Republic to issued decrees having the force of law, in order to confront a case of necessity that cannot sustain delay; estimating such cases was left to the President.

The explanatory memorandum of the new amendment states: ” Since many cases currently before the SCC relate to tax-related texts whose constitutionality is contested, and since the SCC sessions take place throughout the summer, necessity requires - as the people‘s Assembly will convene regularly in November - to quickly issue this amendment in the form of a decree having the force of law as a measurement that cannot be delayed, on the basis of Article 147 of the constitution “.

The ACIJLP consider this to be a strange justification. There are no objective justifications containing such a necessity. The issuing of this amendment in the absence of any dangers resulting from emergency conditions requiring hasty confrontation, under the supervision of the People‘s Assembly, is absolutely non-justifiable. Providing the President with this authority does not mean freeing it from constraints stipulated by the Constitution, including the occurrence - in the absence of the People‘s Assembly - of an emergency allowing the use of this exceptional legislation license which was not the case regarding this decree. This was asserted by the SCC itself in a number of its verdicts (its verdicts of 4/5/1985 and 21/6/1986 for example).

Second : The Amendment Violates the Function and Independence of the SCC (Providing the SCC with a political function contrary to its status as a court of legitimacy and a court of texts):

The new amendment entitles the SCC in each verdict specifically to decide on its date of enforcement; either immediate or retroactive enforcement. This in the opinion of the ACIJLP subjects judges of the SCC to political pressures, as they have to estimate whether verdicts of unconstitutionality should be enforcement retroactively or immediately, on the basis of political considerations that the judge himself estimates. The ACIJLP sees that this will overstrain the SCC in issuing its verdicts. The decision regarding the date of enforcement will be subject to the psychological burden put on the judges, and it will no doubt be influenced by the court‘s relationship to the executive and legislative authorities, and the whims and desires of these two authorities, especially those of the government. And despite the fact that the amendment entitled the SCC to this power, it has not established a clear and sharp standard organizing the effects of SCC verdicts without vagueness or confusion.

Third: The Amendment Creates Unnatural and Illogical Situations:

The ACIJLP thinks that the vagueness and broadness of the amendment, except for tax contentions, creates unnatural and illogical situations. The amendment will mean that a legislation would be constitutional in a certain period and non-constitutional in another. In the case of a verdict of unconstitutionality, the legislation would be constitutional for the period prior to the verdict, and unconstitutional for the period after the verdict. This will be the case if the SCC decided that its verdict has immediate effect, or if the legislation in question has been in effect for a long period and then the SCC decided that its verdict be enforced for a limited period prior to its issuing.

In reply to this criticism it might be argued that even prior to this amendment there were some exceptions to the principle of the retroactive effect of SCC verdicts, especially those relating to legal situations acquiring res judicata and those relating to criminal rulings. But this argument is refuted by the fact that it is well-established both in SCC rulings and in the explanatory memorandum of its law that these two situations are excepted from the retroactive effect principle.

Fourth: The Amendment Violates the Principle of Equality Between Citizens Before the Law:

The recitals of the amendment state that it aims at achieving legal security by prohibiting SCC verdicts from applying to prior relations. The ACIJLP considers that this amendment violates the principle of equality between citizens before the law. In case of a legislation declared unconstitutional by the SCC, some citizens might benefit from a situation arising from this legislation prior to the verdict of unconstitutionality - and some citizens might be subjected to criminal punishments in the context of that legislation - while the legislation will not be applicable to those entering relationships following the verdict or to those filing the lawsuit. This constitutes a violation of the Constitution and of the principle of equality between citizens before the law and the Constitution.

Fifth: The Amendment Violates the Independence of the Judicial Authority and the Interests and Rights of Individuals in the Name of State Interest:

As a justification for issuing the new amendment, the explanatory memorandum stated that ” there are many cases nowadays relating to tax texts contested for unconstitutionality “, and that the prejudice of applying the principle of the retroactive effect of SCC verdicts will create a huge financial burden on the state that would weaken its ability to carry through its development tasks and raise the level of public services and utilities in the collective interest of citizens.

The ACIJLP views that balancing between the interest of the state and the interests, rights, and freedom of individuals is one of the established fundamentals of legislative policy and philosophy. This legislation, in the opinion of the ACIJLP, is biased to what it calls “state interest” - and the interests of citizens as a collectivity - against the interests and rights of individuals, especially those who paid the contested taxes; for the constitutional lawsuit will only benefit the plaintiff.

The amendment also nullifies numerous guarantees of criminal convicts. Prior to the amendment Article 49/3 stipulated that “if the verdict of unconstitutionality was related to a criminal text, rulings issued on the basis of that text are considered null and void. The Head of the Legation Authority immediately informs the General Prosecutor of the verdict to put it into action”. The amendment thus, in the opinion of the ACIJLP, limits the chances of criminal convicts who have been convicted by military courts to be released or to consider their executions to be lynching, if the SCC issues a verdict of unconstitutionality on Article 6 of the Military Trials Act dealing with referring civilians to military courts. For the amendment has cancelled the retroactive effect of constitutional verdicts relating to criminal texts, and left it to the SCC to decide on this issue in each specific case. This puts a political burden on SCC judges, outside the framework of their judicial function, in addition to its violation of guarantees of criminal convicts that were clearly provided by the old text.

The ACIJLP also estimates that this amendment - under the pretext of favouring state interests - violates the independence of the judicial authority and the conclusiveness of SCC verdicts.

A case to be cited in this regard is a ruling issued by a British court during World War II ordering the closure of a military airport located near the court. As the issue was escalated and had to be settled by Prime Minister Churchil, the latter confirmed the court ruling saying: “It is better for great Britain to lose the war than to be said that it ignored a judicial ruling”. In fact, the amendment amounts to abandoning the essence of constitutional control. In democratic states, it is taken for granted that the rulings of constitutional judiciary - even within a war economy - aquire absolute conclusineness binding for all authorities.

The ACIJLP also thinks that statements in the explanatory memorandum like “the SCC sessions take place throughout the summer” and “many cases currently before the SCC relate to tax-related texts whose constitutionality is contested” and “some other cases are quite dangerous …”, amount to clear admission on the part of the executive authority of interference in the judiciary, in a violation of its independence.

Sixth: The Amendment Strips Constitutional Control of its Content (Allowing the Executive and Judicial Authorities to Issue Unconstitutional Legislations) :

The amendment strips constitutional control of its content; it enables both the executive and legislative authorities to issue unconstitutional legislations that would be enforced until a verdict of unconstitutionality is issued. The two authorities can then introduce limited - and still unconstitutional - amendments on the legislation in question, in violation of SCC rulings. This is particularly dangerous given the quality of legislative performance of the People’s Assembly in Egypt, and the expansion of the executive authority in issuing decrees having the force of law.

Seventh: The Lack of Any Objective Justification for the Amendment:

The explanatory memorandum of the amendment justified limiting the retroactive effect of SCC verdicts on the basis that the prejudice of applying the retroactive effect of these rulings in non-criminal issues has led to numerous practical difficulties amounting to the disruption of stable and long - established legal situations.

The ACIJLP considers the amendment to be lacking any objective justification. The explanatory memorandum of the SCC Law, as well as many SCC rulings have established the principle of taking into account relations and situations that have been stabilised, making exceptions to the retroactive effect principle when needed on the basis of either res judicata of prescription (case 37 of year 9 of constitutional judiciary - session of 19 May 1990). In addition, enforcing the general principle of prescription - especially in civil and financial cases - world negate any objective or logical justification for the amendment, since these principles specify the period of prescription in financial matters as three years.

Contact:

ACIJLP

Cairo , 11461 Egypt

Tel/Fax : (202) 3550871

This document is published online by Derechos Human Rights