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The Judicialization of Egyptian Politics

Egyptian judicial institutions and the Egyptian legal profession have a long and rich history of progressive political activism.4 Although independent judicial power was impaired through much of the Nasser and Sadat eras, courts reemerged as prominent political institutions with the establishment of the independent Supreme Constitutional Court (SCC) in 1979, and with judicial reforms to the civil and administrative courts in 1984.5 Almost immediately, opposition activists mobilized through the courts to achieve important victories.6 In one of its earliest rulings, the SCC enabled hundreds of prominent opposition activists, such as Wafd Party leader Fuad Serag Eddin, to return to political life.7 Another ruling in 1988 forced the legalization of the Nasserist Party against government objections.8 The SCC even ruled national election laws unconstitutional in 1987 and 1990, forcing the dissolution of the People’s Assembly, a new electoral system, and early elections.9 Similar rulings forced comparable reforms to the system of elections for both the Upper House (Maglis al-Shura) and local council elections nationwide.10 Although rulings on election laws hardly undermined the regime’s grip on power, they did significantly undermine the regime’s corporatist system of opposition control.11

Even when the regime reversed course and initiated a campaign of political retrenchment throughout the 1990s, judicial institutions became the main avenue of political resistance.12 Opposition activists

continued to score victories in the SCC throughout the decade, most

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Table io.i. Egyptian Political Parties in 1995

Party

Date of establishment

Avenue for attaining legal status

NDP (ruling party)

1976

presidential decree

Tagemmu Party

1976

presidential decree

Liberal Party (Ahrar)

1976

presidential decree

Socialist Labor Party

1977

approved by Political Parties Committee

Wafd Party

1978

administrative court ruling

Umma Party

1983

administrative court ruling

Green Party

1990

administrative court ruling

Misr al-Fatah Party

1990

administrative court ruling

Union Democratic Party

1990

administrative court ruling

Nasserist Party

1992

SCC ruling

Populist Democratic Party

1992

administrative court ruling

Egypt Arab Socialist Party

1992

administrative court ruling

Social Justice Party

1993

administrative court ruling

Al-Takaful

1995

administrative court ruling

notably in the area of press liberties. In February 1993, the SCC struck down a provision in the code of criminal procedures that required defendants in libel cases to present proof validating their published statements within a five-day period of notification by the prosecutor.13 On the heels of this legal victory, the Labor Party successfully challenged a provision of Law 40/1977 concerning the opposition press and vicarious criminal liability in front of the SCC.14 The court initially took a cautious approach in its 1995 decision by limiting the ruling of unconstitutionality to the president of political parties. However, just two years later, the SCC extended its ruling to ban the application of vicarious criminal liability to libel cases involving the editors in chief of newspapers.15

Judicial activism in the administrative courts and the SCC also enabled opposition activists to successfully challenge decisions of the regime- dominated Political Parties Committee and to gain formal opposition- party status. By 1995, ten of Egypt’s thirteen opposition parties owed their very existence to court rulings (see Table 10.1).

Opposition parties and human rights organizations, once at odds with one another, also began to understand that they were fighting the same struggle for political reform. In the mid-1990s they started to work with one another, and cooperative efforts began to bear fruit almost immediately. This is perhaps best exemplified by their effort to monitor the 1995 People’s Assembly elections. Six months prior to the elections, leading human rights organizations in conjunction with the major opposition parties announced their plans to establish the Egyptian National

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Commission for Monitoring Parliamentary Elections. The idea of a citizen-based electoral monitoring commission was a historic first for Egypt, but the campaign picked up considerable momentum in a short period of time. In just a few months, the commission had grown to involve over 100 academics, over 600 human rights activists, many prominent journalists, and the five most important opposition parties.16 Dr. Saad Eddin Ibrahim, professor at the American University in Cairo and head of the Ibn Khaldun Center for Development Studies, was appointed secretary-general.17 The goal of the commission was to monitor the election from start to finish and to systematically document electoral corruption in Egypt for the first time in order to induce pressure for political reform and to generate documentation that would facilitate litigation in the courts.

The findings of the commission were startling. In the months leading up to the elections, the commission documented hundreds of irregularities in voting lists and harassment by government officials.18 Human rights groups also recorded the regime’s crackdown on opposition candidates. Two months before the election, the unofficial headquarters of the Muslim Brotherhood was closed by the government, and eighty-five leading Islamists, including four former members of the People’s Assembly, were tried before a military court. In the month leading up to the election, 1,392 more Islamists and opposition party members were detained so that opposition candidates would be unable to place representatives at the polling stations to prevent government-orchestrated election fraud.19 Additionally, election campaign materials for opposition figures were seized, dozens of election workshops were derailed, and opposition marches were prevented or suppressed. Human rights organizations documented thousands more irregularities during the election itself including physical assaults on voters and candidates, ballot box stuffing, vote buying, and other forms of electoral fraud, as well as the extensive use of state resources for regime-friendly candidates.20 By all accounts, the 1995 People’s Assembly elections were the most corrupt and violent on record, with 60 people killed and up to 820 seriously injured.

The cooperation between opposition parties and human rights groups through the national commission produced immediate results. In the months following the elections, 914 petitions challenging election results across the country proceeded on to the Court of Cassation. The detailed reports and extensive documentation provided by human rights organizations were the most important pieces of evidence in these cases. Judges concluded that electoral fraud was rampant, ruling that 226 seats in the People’s Assembly (over half of the total 444 seats) should be disqualified. Opposition parties lauded the Egyptian judiciary for its role in exposing the corruption of the regime with headline banners such as, ‘‘Judges Confirm the Collapse of Governmental Legitimacy.’’21 Opposition newspapers continued to publicize the irregularities and gave a prominent voice to the findings of human rights groups. Al-Shab described the elections as ‘‘a massacre,’’ Al-Wafd described them as ‘‘the worst elections in Egypt’s history,’’ and even articles printed in the government-run newspaper, Al-Akhbar, could not deny that ‘‘The names of living persons disappeared and those of the dead reappeared.’’22

Despite impressive success in the courts, however, not a single seat was turned over to opposition candidates and no new elections were held for seats ruled invalid by the administrative courts. As in previous elections, the regime-dominated People’s Assembly invoked Article 93 of the constitution, which explicitly states that ‘‘the People’s Assembly shall be competent to decide upon the validity of the membership of its members. . . . Membership shall not be deemed invalid except by a decision taken by a majority of two-thirds of the Assembly members.’’ Fathi Sar- our used this article to justify the refusal of court rulings and instead claimed that the People’s Assembly would initiate its own hearings into allegations of election fraud.23 Moreover, the High Administrative Court issued a ruling on November 17, 1996, that gave the People’s Assembly, rather than the administrative courts, the final word on election challenges. The ruling dismayed opposition activists, and judges were disturbed by their inability to have rulings implemented. However, in this circumstance, the explicit wording of the constitution itself prevented the judiciary from playing a more assertive role.24

Following the 1995 People’s Assembly elections, Egyptian opposition parties again turned to the SCC in an attempt to break the regime’s control of elections. Lawyers representing the main Egyptian opposition parties worked together to challenge the constitutionality of the election law, and their focus turned to Article 88 of the Egyptian Constitution, which states that ‘‘the law shall determine the conditions which members of the Assembly must fulfill as well as the rules of election and referendum, while the ballot shall be conducted under the supervision of the members of a judicial organ” (emphasis added). Using this article, opposition activists filed court cases challenging the legal framework governing elections, which allowed for state employees to supervise election substations where the majority of electoral forgery occurred. As we will see, these efforts paid off handsomely five years later when the SCC ruled in favor of full judicial supervision of elections.

 
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