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Got Rights? The New Battleground of Public Interest Litigation

The 1990s also saw a new breed of Egyptian human rights organizations that went beyond simply documenting human rights abuses to confronting the government in the courts. The most aggressive group engaged in public interest litigation was the Center for Human Rights Legal Aid (CHRLA), established by the young and forceful human rights activist Hisham Mubarak in 1994. CHRLA quickly became the most dynamic human rights organization, initiating 500 cases in its first full year of operation, 1,323 cases in 1996, and 1,616 by 1997.25 CHRLA’s central mission was to provide free legal representation to those who had experienced human rights violations at the hands of the government. Additionally, CHRLA documented human rights abuses and used the cases that it sponsored to publicize the human rights situation. As with every other human rights group in Egypt, CHRLA depended almost completely on foreign funding, but throughout the mid-1990s foreign funding sources proved plentiful and CHRLA quickly expanded its operations, opening two regional offices in Alexandria and Aswan.

In hopes of emulating the model provided by CHRLA, human rights activists launched additional legal aid organizations with different missions. The Center for Women’s Legal Aid was established in 1995 to provide free legal aid to women dealing with a range of issues including divorce, child custody, and various forms of discrimination. The center initiated 71 cases in its first year, 142 in 1996, and 146 in 1997 in addition to providing legal advice to 1,400 women in its first three years of activity. The Land Center for Human Rights joined the ranks of legal aid organizations in 1996 and dedicated its energies to providing free legal aid to peasants. With the land reform law (Law 96 of 1992) coming into full effect in October 1997, hundreds of thousands of peasants faced potential eviction in the late 1990s and lawsuits between landlords and tenants began to enter into the courts by the thousands. Between 1996 and 2000 the Land Center for Human Rights represented peasants in over 4,000 cases and provided legal advice to thousands more.26 The Human Rights Center for the Assistance of Prisoners (HRCAP) similarly provided legal aid to prisoners and their families by investigating allegations of torture, monitoring prison conditions, and fighting the phenomenon of recurrent detention and other abuses through litigation. In its first five years of operation, HRCAP launched over 200 court cases per year and gave free assistance (legal and otherwise) to 7,000-8,000 victims per year.27 Opposition parties began to offer free legal aid as well, with the Wafd Party’s Committee for Legal Aid providing free legal representation in over 400 cases per year beginning in 1997.28 Similarly, the

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Lawyers Syndicate was active in providing legal aid, and it greatly expanded its legal aid department until the regime froze its functions in 1996.

By 1997, legal mobilization had unquestionably become the dominant strategy for human rights defenders because of the difficulty of creating a broad social movement under the Egyptian regime. Gasser Abdel Razeq, director of the Center for Human Rights Legal Aid and later the Hisham Mubarak Center for Legal Aid, firmly contended that ‘‘in Egypt, where you have a relatively independent judiciary, the only way to promote reform is to have legal battles all the time. It’s the only way that we can act as a force for change.’’ A strong and independent judiciary was so central to the strategy of the human rights movement that activists went beyond simply facing threats to the judiciary and the legal profession on an ad hoc basis; in 1997 activists institutionalized their support for judicial independence by founding the Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP).

Under the direction of Nasser Amin, former legal director of the Egyptian Organization for Human Rights (EOHR), the ACIJLP set to work organizing conferences and workshops that brought together legal scholars, opposition party members, human rights activists, and important figures from the Lawyers Syndicate and Judges Association. The ACIJLP began to issue annual reports on the state of the judiciary and legal profession, extensively documenting government harassment of lawyers, critiquing state sequestration of the Lawyers Syndicate, and exposing the regime’s interference in the normal functions of judicial institutions. Like other human rights groups, the ACIJLP established ties with international human rights organizations including the Lawyers Committee for Human Rights and attempted to leverage international pressure on the Egyptian government.

But the sophistication of these legal campaigns reached new heights when the leadership of CHRLA began to understand that legal challenges in the SCC were potentially the most effective avenue to challenge the regime because constitutional litigation could induce systemic changes. According to Gasser Abdel Raziq, this change in legal tactics came with the 1997 SCC ruling on Article 195 of the penal code, a major case that CHRLA lawyers had helped prepare.29 CHRLA attorneys and the human rights movement in general were already following the activism of the SCC with considerable interest. Abdel Raziq recalled that

we were encouraged by [Chief Justice] Awad al-Morr’s human rights language in both his formal rulings and in public statements. This encouraged us to have a dialogue with the Supreme Constitutional Court. CHRLA woke up to the idea that litigation in the SCC could allow us to actually change the laws and not just achieve justice in the immediate case at hand.30

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Beginning in late 1997, CHRLA initiated a campaign to systematically challenge repressive legislation in the SCC. CHRLA’s first target was Law 35 of 1976, which governed trade union elections. CHRLA initiated fifty cases in the administrative and civil courts, all with petitions to challenge the constitutionality of Law 35 in the SCC. Ten of the fifty cases were successfully transferred, and within months the SCC issued its first verdict of unconstitutionality against Article 36 of the law.31 CHRLA also successfully advanced three cases to the SCC that challenged sections of the penal code concerning newspaper publication offenses and three additional cases dealing with the social insurance law.32 CHRLA was further encouraged by activist judges in the regular judiciary who publicly encouraged groups in civil society to challenge the constitutionality of NDP legislation. Some activist judges went so far as to publicize their opinion of laws in opposition newspapers and vowed that if particular laws were challenged in their court, they would transfer the relevant constitutional question to the SCC without delay.33

The ruling of unconstitutionality on Law 35 and the additional fourteen pending decisions in a three-year period represented a tremendous achievement, given the slow speed of litigation in Egyptian courts and the relatively meager resources at the disposal of the human rights movement. Although the results may seem modest, the human rights community came to understand that constitutional litigation was perhaps the most effective way to challenge the regime. Until the CHRLA campaign, activists, opposition parties, and individuals initiated cases in an ad hoc fashion, but CHRLA’s coordinated strategy of constitutional litigation was a first.

The SCC had drawn the interest of the Egyptian human rights community for years, but CHRLA’s successful constitutional challenges prompted the rest of the human rights community to consider the possibility of constitutional litigation more seriously. A number of conferences and workshops were sponsored to examine the possibilities afforded by constitutional litigation, some of which brought together human rights associations and SCC justices.34

Other human rights organizations were eager to emulate CHRLA’s approach. The Land Center for Human Rights set their sights on contesting the constitutionality of the regime’s land reform program as well as a variety of labor laws. By the close of 2001, the Land Center successfully transferred two cases to the SCC. The first petition challenged the constitutionality of Law 96 of 1992, liberalizing owner-tenant relations in the countryside. The other petition challenged the constitutionality of Law 177 of 1967, which governed the activities of the Principal Bank for Agricultural Development and Credits. Like other human rights

activists, lawyers at the Land Center said they were encouraged by the

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many bold SCC rulings on political issues. However, human rights activists attempting to safeguard the last vestiges of Nasser-era economic rights for the poor were far more pessimistic about the possibility of successfully defending these rights through the SCC, despite the many socialist-oriented provisions in the constitution, because of the free- market orientation of many of the justices on the SCC.

Ironically, as human rights groups used litigation as their primary tool for challenging the regime, they themselves were without solid legal footing due to the restrictions of Law 32/1964 governing civil associations and periodic interference from the Ministry of Social Affairs.35 Constitutional litigation therefore became the dominant strategy not only for challenging government legislation but also for challenging the Law on Associations to expand the legal foundation of civil society itself. At an NGO workshop convened by the Cairo Institute for Human Rights Studies in December 1996, leading human rights activists began to consider constitutional litigation as the most effective avenue for challenging Law 32 and for liberalizing the legal framework that constrained NGO activities. Discussions revolved around the previous rulings of the SCC, the legal basis for challenging the constitutionality of Law 32/ 1964, and a strategy for initiating litigation and transferring cases to the SCC. The final position paper of the workshop stated that

The freedom of forming associations is documented in the Egyptian Constitution. The Supreme Constitutional Court has asserted in its rulings that if the constitution authorizes the legislator to organize a constitutional right (like the right to form associations by groups or individuals), this entails that the right is not taken away, undermined or complicated. . . . the participants thus have called for proceeding with legal appeals that cast doubt over the constitutionality of the law.36

More than ever, it was apparent that the “constitutional consciousness’’ of civil society had reached a new plateau. Moreover, the discussion of the legal basis for challenging the constitutionality of the law took on increasing sophistication. In addition to discussing how specific articles of Law 32 violated the constitution, participants in the workshop considered how the law violated the International Covenant on Civil and Political Rights, which had been ratified by the Egyptian government. The discussion of how the law violated Egypt’s international treaty commitments was no longer a strictly academic debate because under the leadership of Justice Awad al-Morr, the SCC had demonstrated that international laws signed into force would be used to support the court’s interpretations of constitutional provisions. The legal tactics of human

rights activists engaged in constitutional litigation began to mirror the

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language of the court to take advantage of the opportunity that the SCC was providing.

Constitutional litigation was also combined with other tactics. Throughout 1997, a network of sixteen human rights organizations, three leading opposition parties, and a number of prominent academics drafted a new bill on associations. The draft law sought to remove legal restrictions on the establishment of civil associations and to restrict the regime’s ability to interfere in the activities of NGOs. By February 1998, the draft law was presented to the People’s Assembly by Ali Fateh Bab of the Labor Party, Ayman Nour and Fouad Badrawi of the Wafd Party, and Mohammed Abdel Aziz Shabban of the Tagemmu Party. Opposition parties never expected the legislation to pass through the People’s Assembly. Rather, they used the draft law as an opportunity to expose the shortcomings of Law 32 in opposition newspapers and to draw attention to the campaign to challenge the constitutionality of the law in front of the SCC.

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