BEYONDPOWER:NEO-SH AÅ FI`ISMORTHE ISLAMICCONSTRUCTIVEMETAPHORIN EGYPT’SHIGHCONSTITUTIONALCOURT P O L I C Y

OussamaArabi*

``Between what exists bypower andwhat exists byself-subsistence, there is a difference.’’ (Al-Niffar §,MuslimSufi, tenth century)

Inthe two decades prior to1970, the ordinary Egyptian judiciary, enjoying an historical record ofimpartiality andeven-handedness, assumed thecritical functionof controllingthe conformity of laws withthe Constitution and protecting citizen rightsfrom the encroachments ofthe executive. 1 The1971 Constitution, however, providedfor the creation ofan extraordinary judicial instance to systematically andeffectively defendthe Constitutional rights andsupreme policy principles ofthe state as theyare definedin the various Articles ofthe Constitution,which materialised bythe creation in1979 of Egypt’s High ConstitutionalCourt ( al-Mah.kamaal-Dust uÅriyyaal-`Uly aÅ)byvirtue of Law No.48/ 1979.The status ofEgypt’ sHighConstit utionalCourt in the contemporarypolitical landscape is singularin that its seven Justices are chosen

*OussamaArabi (Doctorate,Sorbonne University), is an independent scholarin Islamiclaw; he has recentlyauthored Studiesin ModernIslamic Law andJurisprudence (Kluwer, Araband IslamicLaws Series,2001). 1 Aformof decentralized judicial reviewexisted in Egyptsince 1946 when theState’s Administrative Court, Majlis al-Dawla ,wascreated to decide powerabuses of the executive against state employees and ordinarycitizens. In the1930s and 1940s,ordinary Egyptian courts,working under the 1923 Constitution, applied an unsystematicform of judicial review, attimes refusing to implement acertain statutebecause it wascontrary to theConstitution, butwithout explicitly declaring it unconstitutional. In itsvanguard Ruling of1948on CaseNo. 65, theAdministrative Court established the precedent of constitutionalcontrol for the lower Egyptian courts.The Court decided: ``. ..regardingthe duties of the courtswhen facedwith alaw thatis contraryto the text of theConstitution or its spirit: Thereis nothing in Egyptian legislation topreventEgyptian courtsfrom examining theconstitutionality of laws, letalone decree-laws. ... When theConstitution [of 1923] provided, in Art.30, thatthe judicial poweris exercisedby the courts, it confidesto them jurisdiction tointerpretthe laws and toapply themin the litigation arisingbefore them. It follows thatthey have jurisdiction, in caseof conflict between these laws, todetermine the law which shall be applied.’’ (Ascited in Enid Hill, ``Judicial Review in Egypt and theUnited States’’,in TheRole ofthe Judiciary in theProtection of Human Rights ,Eugene Cotran and Adel OmarSherif (eds.), The Hague, Kluwer Law Intenational, 1997,pp. 324±325. In 1969,the firstEgyptian Constitutional Courtwas created as an independent judicial bodyenjoying exclusive jurisdiction overthe constitutionality of laws and regulationson Egyptian soil; it wasto be superceded bythe present High Constitutional Courtorganised by the 1971 Constitution.

ArabLaw Quarterly,[2002] # 2002Kluwer Law International.Printed in theNetherlands.

323 324 ARABLAWQUARTERLY bytheCourt’s general assembly from theupper judiciary and appointed, until the age ofretirement, bythe President ofthe Republic, with no interference either fromthe government or thelegislature (People’s Assembly). Its mandateis to safeguard thecompliance of legislation and administrative decrees, i.e. all statute laws withthe Articles oftheEgyptian Constitution; and to interpret thelegislative texts inexistence. Wheneverthe matter ofunconstitutionalityof alaw or decree is raised before theCourt, this requires interpretingthe said Articles andtexts in order todetermine theissue ofthe case. Intheir interpretive actionthe Constitutionaljudges make finaldecisions onthe constitutionality of particular laws or legal provisions, 2 decisions thatbecome binding for thewhole judicial apparatus, andwhich neither the executive nor the legislative are able tocontest, thatis tosay, politicaldecisions as theystand to affect bothgovernmental action andparliamentary legislation. SomeCourt decisions are more politicalthan others inthat they express new policyrules thatcannot be directly elicited fromthe Article ofConstitution or legislative text(Law) underreview; so while theCourt interprets thelaw, itisactually creating it, invigoratingit withnew meaningsand expandingits empire tovirgin legal territory. Onthe following pages Iexposedifferent facets ofEgyptian Constitutional jurisprudenceon Islamic law inthe 1990s, placing under focus the desire or will animatingit, whichI style as thatof the ``political judges’’,in contrast tothe motivatingideal ofmedieval religious jurisprudence,that of the pious jurist. The EgyptianConstitutional magistrates issue decisions onthegoverning principles of Islamic law intheir capacity as official Highjudges of thestate, trained, educated, andseasoned throughlong years inEgypt’s French inspired judicial apparatus and experience; theyare notautonomous self-declared jurists seeking,first and foremost, individualproximity to God through personal devotionto His Law. Whilesuch inner religious satisfaction accrues tothe upper judges’ activity as upholdersof Divine Law, their regard is fixedmore ontheouter consequences of their judiciallawmaking for publicorder andstate policy.As state magistrates, theyare boundin their legal deliberationsto respect theconstraints imposedby theConstitution, constraints thatdo notallow themmuch leeway inthe creation of thelaw. Formally, lawmakingis theexclusive task ofthelegislative inEgypt, and eventhe High judiciary has toanchor its effective rulingsin the intent of some legislative textor Article ofthe Constitution, as will appear below.Most significantly,theConstitution al magistrates declared aim intheir Islamic jurisprudenceis tointerpret andgive procedural weight and substance toa politicaldesire, thatof Egypt’s legislators whenon 22 May 1980 the People’s Assembly votedthe historic ConstitutionalAmendment to the effect that:``The

2 Constitutional litigation in Egypt, byvirtue of Law No. 48/1979,requires two necessary conditions: (1)It could only originateat a lowerlevel oflitigation, when thejudge presiding overa particularcase eitherdecides to transfer its jurisdiction tothe High Constitutional Courtbecause he hascertain doubts aboutthe constitutionality of the legal provisionthat he is aboutto apply; or,alternatively, authorises oneof theparties to the lawsuit toappeal theconstitutionality of the said provisionsbefore the High Constitutional Court;and (2)Constitutional lawsuitsought always to be anchoredin adirectand personalinterest of the party concerned.