Mona El-Nahhas writes on the current heated dispute over the status of the Supreme Constitutional Court in Egypt's draft constitution Members of Egypt's Supreme Constitutional Court (SCC) announced in a statement issued on Monday that the court welcomed the current "understandable attitude" adopted by the Constituent Assembly which agreed to revise the controversial articles related to the SCC's status. "The SCC accepted the invitation of the Constituent Assembly to attend a dialogue and to present its own views," the statement said. However, the statement stressed that the SCC is not ready to give up any of its rights acquired after the revolution. The assembly's decision to revise the controversial articles came just one day ahead of a Higher Administrative Court ruling regarding the fate of the assembly itself. With many legal experts expecting an appeal demanding the dissolution of the assembly to be referred to the SCC, the assembly's move was interpreted as a manoeuvre to end the current hostile stance towards it by the SCC. The development came a few days after SCC members had announced their rejection of the draft constitutional articles that defined the authority and formation of the court. During a press conference on 16 October, judge Maher Al-Beheiri, SCC chief justice, told reporters that meetings of the court's general assembly would not be adjourned in order to decide what should be done in case their demands were not met. Al-Beheiri said that the proposed articles stripped the SCC of its powers and were a flagrant interference in its affairs. The reason behind the press conference was to acquaint the public with the court's reservations regarding the articles relating to its status, he said, bearing in mind that an independent judiciary was necessary to protect the rights of citizens and guarantee the rule of law. According to Al-Beheiri, the SCC had submitted memoranda including the court's own views about its status to assembly chairman judge Hossam Al-Ghiriani. "However, to our surprise, the draft articles contradicted what the SCC had suggested," Al-Beheiri said, accusing the assembly of a hostile stance towards the SCC. Among the articles that stirred the anger of the SCC members was one which gives the president the right to appoint the court's chairman and its members. Before the 25 January Revolution, ousted former president Hosni Mubarak had appointed the SCC chairman and its members often on a personal whim and without paying attention to the rules governing the choice. Former SCC chairman judge Farouk Sultan and current SCC member judge Tahani Al-Gebali were not among the then SCC members when they were appointed to the court under Mubarak's rule. However, "none of the SCC members dared to utter a word of criticism of Mubarak's choice," Salah Sadek, a professor of constitutional law, told Al-Ahram Weekly. It was only after the revolution that the SCC managed to amend the law in a way that gave the court's general assembly the right to elect its chairman and members. As a result, the executive branch would have no role to play, guaranteeing the independence of the court. However, Sadek said that the proposed change would have put authority in the hands of the court, which could lead to an abuse of power. There needed to be restrictions placed on the court's authority, he said. Sadek also expressed his objections to the SCC's reaction to the constitutional articles regulating its future status. "The challenging attitude adopted by the SCC is not acceptable," he said. "I do not understand what they meant by announcing that meetings of the court's general assembly would not be adjourned. This escalation on the part of the SCC contradicts the ethics of the judiciary. If their demands do not get the required response, how will they react? Will they organise demonstrations? Will they refuse to go to work?" In a column published in the daily newspaper Al-Masry Al-Youm, political analyst Hassan Nafaa criticised the way in which the court had expressed its reservations on the draft constitution. "The court took part in the heated political dispute over the new constitution, yet in a rather challenging way, as if it were in a state of war with the assembly," Nafaa wrote. The court had given itself the right, which formally it does not have, to dictate to the assembly what should be included in the constitution regarding its status. Moving to another controversial article, the proposed draft article 184 stipulated that the SCC's control over legislation regulating parliamentary, presidential and municipal polls should be carried out prior to the application of such laws. Al-Beheiri said that the SCC was not against prior control over the legislation, but it wanted its opinion regarding the constitutionality of any such laws to be binding. Professor of constitutional law Merghani Khairi was not in favour of such prior control, saying it would be hard to judge legislation in advance, as faults in any law often only appear after its application. "This article will turn the role the SCC plays in controlling the laws into a rather superficial one," Khairi said, adding that at this critical time, it would have been better not to make major constitutional changes regarding the status of the SCC. Gamal Gebril, chairman of the governing system committee of the assembly, said in press statements that the draft constitution had introduced only small amendments to articles present in the 1971 constitution on the status of the SCC. "The amendments were introduced to serve the public interest," he said. The aim behind article 184 was to avoid a future ruling dissolving an elected parliament and negating elections in which millions of Egyptians had taken part, as happened during the transitional period after the 25 January Revolution. "It is totally unacceptable that the will of 18 judges should be allowed to negate the will of millions of Egyptians," Sadek said. Sobhi Saleh, a member of the Constituent Assembly, also criticised the stance adopted by the SCC, saying that the court was not the custodian of the constitution. "Each body has the right to present its own suggestions in a legitimate way and not through the media. The Constituent Assembly will take into consideration all ideas proposed. However, the final say will be left to the people, who will vote either for or against the new constitution," Saleh said. Commenting on the issue of the prior control over the laws, Sadek said he did not believe this would prevent the SCC from dominating the legislative branch of government. "The SCC will have the authority to declare unconstitutional any law passed by the parliament," Sadek said, adding that the solution lay in making sure that the parliament was able to pass laws conforming with the constitution and reflecting the different groups in society. Before 1979, the year when the SCC was founded, parliaments were able to pass legislation without worrying about subsequent judicial review. During the Mubarak period and particularly in the late 1990s, the SCC did not escape the generally corrupt climate. "The SCC kept on issuing politicised rulings, the last of which ordered the dissolution of parliament in June 2012. This ruling raises several question marks, and it reflects unjustified hostility towards the legislative branch," Sadek said. For its part, the Arab Centre for the Independence of the Judiciary, an NGO, expressed alarm at the articles dealing with the SCC in the draft constitution, viewing them as threatening the independence of the court. In a statement issued last Thursday, the centre strongly criticised Article 184, which lends legislation passed by the parliament immunity from subsequent constitutional control. The statement called upon the Constituent Assembly to reconsider articles 183 and 184 in such a way as to guarantee the independence of the SCC.
