Justice Tahany El-Gebaly reveals her staunch support for the principles of democracy, equality and respect for universal human rights in interview with Beyond's Samia Farid Shihata Established 25 years ago and consisting of 17 judges, the Supreme Constitutional Court (SCC) is the highest legal authority in Egypt. Deep inside the imposing building it occupies on the banks of the Nile, Justice Tahany El-Gebali has been quietly making history since 2003 when she became the first woman SCC judge. Today, she continues to be the only sitting woman judge, not only in the SCC, but in the regular court system and in the Conseil d'Etat (Magles El-Dawla) courts as well. Justice El-Gebaly has a long history in public service. She was the first woman elected to the board of the Lawyers' Syndicate and to the Permanent Secretariat of the Union of Arab Lawyers, and also was a member of the opposition (the Nasserist Party). Beyond met with Justice El-Gebaly to discuss the SCC's role and a number of other legal and constitutional issues currently under debate in the public arena. Below are excerpts of the interview. What is the role of the Supreme Constitutional Court? First of all, the Supreme Constitutional Court stands above the ordinary court system, the Conseil d'Etat, and the administrative court system. It also stands above the legislature, which must not promulgate any law that is contrary to a SCC ruling. It also stands above the executive, which is also bound not to take any action contrary to a ruling of the SCC. Second, the SCC is the final authority on the interpretation of law. A notable example is when the Court was asked to resolve differences in interpretation of the law dealing with the evasion of compulsory military service by a member of parliament. The SCC ruled that such service was a basic requirement for a citizen's political participation. This interpretation resulted in the removal of 22 members of parliament. Another important example is when the SCC ruled on what was meant by "judicial supervision of elections" in the constitution. The SCC interpreted that to mean complete and direct judicial supervision of both major and secondary election committees. The court's interpretation rendered the elections for parliament existing at the time unconstitutional. Parliament was dissolved and early elections were called for in 2000. Third, in cases where there is a contradiction between two final rulings of two different courts, such as an ordinary court and the Conseil d'Etat, it is the SCC that issues a binding decision on which of these rulings should be enforced. Its decision is binding on both courts in question. Can an article of the constitution be unconstitutional? I am a supporter of the important school of constitutional legal thought that emphasises the oneness of the constitution and looks at it as an organic consistent whole. The articles must be compatible with one another and no article should contradict another article in the constitution. I hope that this view gains strength in our legal jurisprudence and our constitutional court system since constitutional legal practice is inevitably influenced by intellectual preferences. I do not believe in the idea that anyone can be totally without a position with regard to literally everything. There are schools of legal thought that promote tyranny, and others that help undermine tyrannical tendencies. If I occupy a seat on the constitutional court and I am a true believer in the values of freedom, democracy and respect for human rights, this will be reflected in my judgments. It is my hope that we have, at the very least, a majority among us that believes in strengthening the values of freedom and democracy in order to safeguard our nation from the challenges confronting it. How does the Supreme Constitutional Court supervise the constitutionality of the nation's laws? As a general rule, the SCC is entrusted with the supervision of the constitutionality of specific laws after they are passed by parliament. However, the amendment of Article 76 of the constitution included a stipulation that the SCC should review the draft of the presidential election law prior to its passage in parliament. The reason put forward for granting this exceptional jurisdiction to the SCC was the "special gravity" of this new law based on Article 76. Thus, it is the draft law on presidential elections that was submitted to the SCC for constitutional review, not Article 76 itself. That the amended Article 76 was as detailed as the presidential election law that followed it led to confusion in peoples' minds. In fact, the consensus of constitutional law scholars was that the inclusion of such details in an article of the constitution constitutes a serious and unprecedented constitutional flaw. Going back to the issue of post or prior supervision of the constitutionality of the laws by the SCC, it does well to note that by accepting to rule in a number of cases challenging the constitutionality of the presidential election law after the law came into effect, the SCC established a very important principle, namely its continued jurisdiction over the body of law after its passage in parliament, despite having ruled on it when it was still in draft form. What are your views on the criticisms levelled against Article 76 of the constitution? Both constitutional scholars and public opinion have agreed that this article contains numerous flaws. I hope that the upcoming amendment of the article will correct all of them. As citizens, we have all been following the discussions of this article for over a year and we hope that the constitutional drafters this time will be guided by the stated objective of the article, making sure that it does not obstruct or contradict other basic rights guaranteed by the constitution. This is not only the responsibility of the drafters, but also of those who will discuss the draft, and finally of the public who must also take its responsibility seriously by expressing its will through the upcoming referendum on this and other constitutional amendments. In your opinion, why do we still not have women judges in the normal court system? The problem is the prevailing culture in our society, which has continued to regress away from the enlightenment that Egypt was previously known for. We have become captive to cultures that are not compatible with our level of social development. We seem often to be discussing issues that were resolved many years ago. This endless rehashing makes us appear to be a nation without memory. The problem was never a legal one, either in the constitution or in the law. I am shocked that three and a half years after my appointment to the SCC, the judiciary is still unable to grant Egyptian women their constitutional right to become sitting judges. This is both sad and regrettable since throughout its history the judiciary was a bastion of social progress. It is an aberration that instead it now acts as an obstacle to progress and to the attainment of a constitutional right. Thankfully, there seem to be some steps being taken these days to open this career path to women. However, what we really need is a long-term strategy to overcome this historic and huge gap in equality of opportunity in the judiciary. Is it not surprising that women have been practicing lawyers for over 80 years, have twice headed the administrative court system, constitute over 52 per cent of teaching positions in national faculties of law, and yet they are still deprived of becoming judges? Some civil society groups have drawn attention to the fact that the Anti-Corruption Treaty ratified by the Egyptian parliament some time ago has not been published in the Official Gazette and therefore is not being enforced? Do you have any comment? I cannot comment on whether this is true or not as, frankly, this is the first time I hear of it. However, if this were indeed the case, it would be a legislative scandal by any standard. There are, without doubt, procedural arrangements that must be followed with regard to international treaties, and publication in the Official Gazette is part and parcel of these procedures. These procedural arrangements are considered constitutional arrangements par excellence. Not respecting them would constitute a grave violation of the constitutional rights of the Egyptian people who should be informed of the treaties their country has entered into and who have the right to supervise their implementation through constitutional instruments. For an international treaty to become part of a country's law it must pass by certain procedural steps. In Egypt, these procedures are written in the constitution. Hence, non-implementation of any of these procedures would constitute a violation of the constitutional rights of the Egyptian people.
