The Primacy of the Law and the Constitution – Their Consistency and Compliance with International Law – the Egyptian Experience Dr

3 The Primacy of the Law and the Constitution – Their Consistency and Compliance with International Law – The Egyptian Experience Dr. Adel Omar Sherif * 1 INTRODUCTION The law serves as a yardstick by which individuals measure their expectations and their actions. In this way, the rule of law constitutes a means of preventing conflict, and a means of managing conflict when it does arise. By giving the law primacy through domestic legislation, states acknowledge formally that they too are entities whose actions are subject to the law. However, as states become less reticent about committing themselves to such requirements, international obligations are making their way onto the domestic playing field and straining traditional views of the primacy of domestic law and of the national constitution. As international law gains more acceptance, it threatens to become a new legal order competing with domestic law for primacy. As a result, international law is challenging states to harmonise their domestic laws with their international obligations. Not surprisingly, states are responding to this challenge with various degrees of success via a variety of legislative, constitutional and judicial means. In this article, I shall discuss these legislative, constitutional and judicial means with a focus on the Egyptian experience after first discussing the meaning of the rule of law. 2 DEFINING THE RULE OF LAW The phrase “rule of law” has acquired notoriety in human rights and democracy discourse. Although they may do so with the best of intentions, human rights lawyers, scholars, non-government organisations and institutions evoke it with a frequency that greatly exceeds the frequency with which they analyse its * Dr. Sherif is the Deputy Chief Justice of the Supreme Constitutional Court of Egypt. He would like to thank Hala Rashed, a member of the Law Society of Upper Canada and an intern at the Supreme Constitutional Court of Egypt, for her assistance in the preparation of this article. 4 Articles definition and scope. Its indiscriminate use threatens to confuse or even strip the expression of any meaning. Of course, given the international context in which it is being considered, the rule of law is likely capable of many different meanings, which only makes analysis of its definition and scope that much more of a worthy exercise. The contemporary idea of the rule of law may be traced to the British jurist Albert Venn Dicey. Although pronounced over a hundred years ago, his articulation of the rule of law remains one of the best, so much so that the highest courts in the world, including that of South Africa, still cite it:1 That “rule of law” then, which forms a fundamental principle of the Constitution, has three meanings, or may be regarded from three different points of view. It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government. Englishmen are ruled by the law, and by the law alone; a man may with us be punished for a breach of the law, but he can be punished for nothing else. It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals ... The “rule of law”, lastly, may be used as a formula for expressing the fact that with us the law of the Constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and parliament so extended as to determine the position of the Crown and of its servants; thus the Constitution is the result of the ordinary law of the land. Other national courts cite similar characteristics for the rule of law. For example, the Supreme Court of Canada recently described the “rule of law” as follows: “[t]he ‘rule of law’ is a highly textured expression, … conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.” At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action.’2 In fact, the Court particularised, albeit not exhaustively, various components of the rule of law. First, the law is supreme over the acts of both government and private persons, or in other words, there is one law for all. Secondly, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative 1 Albert Venn Dicey, An Introduction to the Study of the Law of the Constitution, 10th Edn. (1959) at pp. 202-3, cited in National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), 37 I.L.M. 1101 (High Court of South Africa) (Lexis). 2 Reference re Secession of Quebec [1998] 2 S.C.R. 217 at para. 70, online: Supreme Court of Canada Lexum <http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/ 1998scr2_0217.html>..

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