Can the Constitution be Unconstitutional? asks Mohamed Nour Farahat* Ever since the amendment of Article 76 of the Egyptian constitution and the legislative changes that followed, political and legislative reform has been the foremost topic of discussion in Egypt. According to official pronouncements, the process of political reform is set to continue. Beyond venturing into a discussion of the details of the legislative changes already implemented or yet to come, it is imperative at this stage to provide much needed guidance to present and future legislators through an in-depth examination of the general nature of the legislative process. Certain basic questions need to be raised. The pivotal question has to do with what is meant by the term "rule of law" in a democratic society. Is the "rule of law" simply the promulgation and enforcement of legislation , regardless of their content and the methods of their enforcement? History shows us that even the absolute rule of tyrants was exercised by means of legislation passed by subservient legislative bodies. The Nazi state, for example, based its policy of ethnic cleansing on legislated principles. Stalin, Franco and other famous dictators in modern and ancient history also performed their tyranny under the cover of legislation passed by their legislatures. The important question is : Is it enough that a state exercises its authority according to legislated rules for us to say that it is governed by the rule of law? Or does the legitimacy of the legislation in any given state depend on whether universally accepted principles are binding to its legislative authority? Obviously, the latter is the correct answer, since any legislative body must be bound by the principles of the valid constitution otherwise the laws it passes would be considered unconstitutional. However, though simple, this answer does not present a complete solution to the legitimacy problem, which is many- faceted. Two other essential questions need to be addressed. The first has to do with whether there are principles even higher than the written constitution that govern the legislative process. The second question is: Is it possible to consider a subsequent constitutional amendment unconstitutional if it contravenes these higher principles? Throughout history, scholars of law and politics have been preoccupied with the search for a definition of higher universal principles that would supersede ordinary positive laws. Recourse to these higher principles was most urgent in times when the legislative and executive powers in a given state fused into one another to the extent that the laws promulgated did not reflect the citizens' aspirations for freedom and justice. The search by jurists and philosophers for a higher "natural" law that supersedes ordinary laws can be credited with elevating the concept of legitimacy to a higher level. It has been imbued with a philosophical stature that would justify the nullification of an unjust ordinary law, even if it technically fulfilled accepted norms of legitimacy. Aristotle's ideas on natural law, St. Thomas of Aquinas's ideas on eternal, divine and natural law, and the ideas of Jean Jacques Rousseau and John Locke on the social contract and the state of nature, as well as the ideas of Muslim scholars on legal ideals ( Al Maqased Al Shariia) , all fall under the same rubric, since their ultimate purpose was to place limits on the positive power of the legislative authority in order to curb its freedom and discretion to legislate at will. The most prominent modern attempt to elevate the concept of justice above ordinary legislation can be found in the efforts of the esteemed French jurist L.Duguit ( 1859- 1928), who so aptly noted: " As I grow older and delve deeper into the study of law, the more convinced I become that law is not a creation of the state, but rather something outside the state; and that the idea of the law is totally independent from the idea of the state; and that legal principle is equally binding on the state as well as the individual." Duguit concludes from this that " the state is subject to a higher legal principle from which it cannot escape....". He is, thus, telling us that the legislative authority exercised by the modern state is bound by higher unwritten legal principles. These principles are embedded in the social conscience or, what is referred to as, the principle of social solidarity. The state cannot rescind these principles by invoking its legislative power, even if this power is based on a parliamentary majority. Egypt's prominent jurist, Abdel Razzak El Sanhoury (1895-1971), attempted to formulate a theory of the boundaries of legislative authority in his study entitled, "Unconstitutional Legislation and the Abuse of Legislative Authority,"( Conseil d'Etat Magazine, 1952). We shall look here at El Sanhouri's understanding of what constitutes abuse in legislation. El Sanhouri explains that while certain legislation may outwardly conform to the principles of the written constitution, legislative abuse would, nonetheless, have taken place if the legislative authority deviated from a set of unwritten, but binding, higher principles that apply equally to both ordinary and constitutional law. What are the standards that El Sanhouri proposes to use to determine whether abuse of legislative power has taken place? El Sanhouri steers away from using the public interest standard to evaluate the actions of the legislative authority, preferring instead to apply more objective criteria. The first standard he uses relates to the nature of the legislation itself, that is, whether it is in its essence of a truly general and impartial nature. If, despite outward appearances, a law in fact lacks this general and impartial nature, then it is an unjust law. El Sanhouri says " this standard of abuse is a purely objective one since it does not require us to delve into the hidden intent of the legislation. We need only prove that the law in question is, in reality, tailored to specific instances and that this was eminently clear to Parliament at the time of legislation." The second standard of abuse comes into play in cases where the constitution grants a definite purpose to the legislature, which in turn oversteps that purpose as defined by the constitution. For example, if the constitution forbids the closing of newspapers except when needed to protect social order, and the legislature expands the understanding of what constitutes 'protection of the social order' to broaden its power to close newspapers, this is an abuse of legislative authority. The third standard of abuse applies if, under the pretext of preserving good order, the legislature restricts the rights and freedoms of citizens instead of guaranteeing them. However, in our view, by far the most important standard for legislative abuse is whether the legislature contravenes the higher principles or the spirit of the constitution ( the theory of a higher law). Examples are: If the constitution places a high value on individuality and the legislature unjustifiably curtails individual rights; or if the constitution stresses the value of a multiparty system and the legislature acts to ensure the predominance of one political party over all others; or if the constitution ensures the independence of the judiciary and the legislature promulgates laws that either directly or indirectly impinge on this independence. In all these case and others, the legislature would be abusing its legislative powers since it would be contravening the higher principles and the spirit of the constitution. It is noteworthy that El Sanhouri, in this study, refrains from applying any standard that lacks precise legal definition to determine cases of legislative abuse. That is why he steered away from searching for hidden intent in legislation. This is understandable given that at the time of his writing the concept of constitutional surveillance was not yet fully developed. Nevertheless, we do not doubt that El Sanhouri's theory is amenable to adaptation in light of developments in constitutional jurisprudence and in light of political developments. In conclusion, what is important to emphasize is that the power of the legislature to legislate is by no means absolute, and that the parliamentary majority that controls the legislature does not have a free hand to legislate as it pleases. Legislatures must adhere to restrictions and boundaries embodied in higher standards and they must refrain from the abuse of legislative power in the drafting of ordinary laws and of constitutional provisions. We, therefore, have no problem in declaring certain constitutional provisions to be "unconstitutional" if they fall within any of the standards of abuse described above. Thus, notwithstanding the contradiction in terms, it is possible for the constitution to be unconstitutional. * The writer is a professor of law, Zagazig University and UN human rights consultant
