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The Supreme Constitutional Court Compromised, a New NGO Law Issued

With the retirement of Chief Justice Asfour in late 2001, the regime would have its opportunity to rein in the SCC. To everyone’s surprise, including SCC justices, the government announced that Mubarak’s choice for the new chief justice would be none other than Fathi Naguib, the man who held the second most powerful post in the Ministry of Justice. Opposition parties, the human rights community, and legal scholars were stunned by the announcement. Not only had Fathi Naguib proved his loyalty to the regime over the years, but he had drafted the vast majority of the regime’s illiberal legislation over the previous decade, including the oppressive law 153/1999 that the SCC had struck down only months earlier. Moreover, by selecting a chief justice from outside the justices sitting on the SCC, Mubarak also broke a strong norm that had developed over the previous two decades. Although the president of the republic always retained the formal ability to appoint whomever he wished for the position of chief justice, constitutional law scholars, political activists, and justices on the court themselves had come to believe that the president would never assert this kind of control over the court and that he would continue to abide by the informal norm of simply appointing the most senior justice on the SCC.61 Mubarak proved them wrong.

The threat to SCC independence was compounded when Fathi Naguib announced that he would expand the number of justices on the SCC by 50 percent by recruiting five judges, four from the Court of Cassation and another from the Cairo Court of Appeals.62 Even more troubling were reports that upon reaching the SCC, Naguib proposed that justices on the court be divided into three benches: one would continue to handle petitions of constitutional review; the other two would concentrate on questions of jurisdiction between courts and interpretation of legislation, the other formal roles of the SCC. The prospect of a divided bench coupled with the regime’s demonstrated willingness to pack the court raised the possibility that activist judges would be isolated on the benches concerned with jurisdictional disputes and legislative interpretation, leaving the far more important role of constitutional review to the new appointees. Although Naguib’s initial attempt to implement this reform was rebuffed by other SCC justices, sources believe that this issue remains unresolved and a renewed attempt to introduce a divided bench may be still be in store.

Several months later, the government issued a new association law (84/2002) to replace Law 153/1999, which had been struck down by the

SCC. The new law proved to be just as draconian, giving the Ministry of

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Social Affairs the power to reject or dissolve any association threatening ‘‘public order or public morality.’’63 But this time around, the human rights movement and opposition activists had been so weakened by the government’s continuous assaults they could do little to oppose it. The regime proved its intent to apply the full force of the law when it ordered the closing of the New Woman Research Center and the Land Center for Human Rights in June 2003.64

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