By Mai el-Sadany, Yasmin Omar – Carnegie Endowment –
New amendments to the law governing Egypt’s highest court are the latest in a series of steps intended to eat away at the international system; however, they threaten to further isolate the country and insert its judiciary into contentious foreign relations.
Throughout its modern history, Egypt has voluntarily signed onto international treaties and sought membership in international bodies, committing to the international order. But a recent amendment to the country’s laws, if passed, threatens to rob these acts of meaning, isolating Egypt and subjecting its highest judicial power to politicization.
In June, the Egyptian cabinet drafted and introduced amendments to the country’s Law Governing the Supreme Constitutional Court (SCC), which were later sent to the SCC’s General Assembly for review, and are currently being discussed and voted on before the House of Representatives.
If passed by parliament and signed into law (which it was, on Aug. 18), the amendments will grant the SCC judicial oversight over the constitutionality of decisions issued by international organizations and entities, and verdicts issued by foreign courts involving the Egyptian state. More specifically, when a foreign decision or verdict involving Egypt is issued, the amendments would empower the prime minister to file a request to the SCC that the verdict, decision, or obligations stemming from the judgment not be implemented.
Parliamentarians have claimed the law would be important in cases implicating national security. A former deputy to the SCC head described the amendments as necessary to “protect the country from unjust rulings issued abroad that do not take the Egyptian point of view into account.” But these justifications for the amendments are pretext. From hearings before foreign courts to the African Commission, every proceeding that involves the Egyptian state invites the relevant authorities to participate.
WHAT WOULD THIS MEAN IN PRACTICE?
Like most constitutional courts, Egypt’s SCC is responsible for reviewing the constitutionality of domestic laws and regulations in line with the constitution. In this vein, while it falls within the court’s purview to review laws implicating international relations and it has done so in the past, the court does not play a role in reviewing specific foreign and international judgments—which would make little sense as these judgments were issued outside of Egypt in bodies not governed by Egyptian domestic law. With these amendments, Egypt is unilaterally creating a judicial review step and in essence giving the SCC the power to stop enforcement. Though these amendments will not change whether or not a judgment or decision is binding on Egypt, they do provide cover for Egyptian authorities to use domestic law to avoid international obligations.
For example, say Egypt was being brought before the African Commission for a case involving incommunicado detention and torture, and that the Commission issued a binding judgment determining Egypt’s fault and requiring reparations. Egypt’s prime minister could then file a complaint before the SCC to request that it review the case. The SCC could then determine that the judgment is not in line with Egypt’s constitution and could issue a decision stating that Egypt will not be implementing the judgment. In the African system—which Egypt voluntarily joined–the judgment would be considered binding. But in Egypt, authorities would be messaging that it is not.
In effect, Egypt is instrumentalizing the SCC to decide that, at times, international law does not matter; a poetic irony because the constitution—which the SCC is obligated to uphold—grants international obligations the force of law. Egypt is insisting on existing within the international community, but with these amendments, it is attempting to do so on its own terms.
WHAT IS THE CONTEXT HERE?
These amendments are unfortunately consistent with Egypt’s recent efforts to weaken the application of international law on the global stage.
As these amendments are being considered, there is a growing movement in the international community toward holding those committing violations to account in foreign courts. And Egypt itself is under international scrutiny before judicial and non-judicial bodies: Four Egyptian security agents are being tried in absentia in Italy for the murder of PhD student Giulio Regeni; there was a recent attempt to hold the former prime minister to account for torture before a U.S. court; and Egypt is the subject of a stream of UN special procedures communications and was recently the subject of a joint state declaration before the Human Rights Council. It may very well be that Egyptian authorities are preemptively protecting themselves amid this wave.
While these amendments may not have the force of law outside of Egypt, they send a clear message. To those inside the country, including regime allies who have benefitted from a culture of impunity and legislative efforts to claim immunity, these amendments are intended to signal that those committing violations may continue to do so while enjoying protection domestically. To the global community, Egyptian authorities are challenging the international system. They are indicating that they have little regard for it and stating, in clear terms, that they may continue to avoid implementation of adverse judgments.
But this story has not necessarily been about rights and accountability alone—at least initially. Although later changed, the original version of the amendments also grantedthe SCC judicial review over judgments of “foreign arbitration bodies.”
Despite Egypt’s widely-celebrated efforts to pass an arbitration law in 1994, arbitration has not always worked in favor of the state. Investment treaty claims against Egypt have increased in recent years; and reports indicate that Egypt lost more than 74 billion Egyptian pounds (4.7 billion USD) in compensation to foreign countries in international arbitration cases between 2008 and 2017. The original version of the amendments could have been used to sidestep such costly arbitration findings.
As debate ensued in parliament, MPs warned about the adverse impacts that the amendments could have in discouraging foreign investment and their objections led to the removal of “foreign arbitration bodies” from the text. However, its inclusion in the first place remains instructive; and the vague language that does remain, particularly reference to “international organizations and entities,” could presumably still be instrumentalized toward similar effect.
WHY DOES THIS MATTER?
These amendments threaten to have significant political, economic, and judicial implications. Politically, by justifying objections to international and foreign decisions, these amendments violate Egypt’s constitution and international obligations, including the Vienna Convention on the Law of Treaties, which stipulates that a country cannot invoke domestic law as justification for failure to perform a treaty. More broadly, the amendments normalize disregard for the international system, from its resolutions on foreign relations to its verdicts on human rights accountability. They turn this disregard into part of Egyptian legal culture, and they may very well isolate Egypt. While this isolation may create fatigue around bringing Egypt to account internationally, it may also end up hurting the country’s own interests.
Economically, a failure to implement foreign judgments, whether financial or not, may also send the message that Egypt is not a fair player in the international system and may lead to hesitation around on the part of foreign investors and possible withdrawal of opportunities.
Judicially, these amendments subject Egypt’s highest court to politicization and eat away at its independence. By turning the court into a body that is the public-facing messenger of whether or not Egypt will adhere to international judgments, it places a judicial body at the heart of some of the most contentious questions of foreign relations and diplomacy. Additionally, and because of the role of the prime minister in making requests, the amendments place pressure on the court’s judges and subject the judicial system to vague national security considerations that are not publicly articulated.
Mai El-Sadany is a human rights lawyer. She is the Managing Director and Legal and Judicial Director at the Tahrir Institute for Middle East Policy (TIMEP). Follow her on Twitter @maitelsadany.
Yasmin Omar is a human rights lawyer. She is the Egypt Legal Associate at the Tahrir Institute for Middle East Policy (TIMEP). Follow her on Twitter @Yasminoviech.
Carnegie does not take institutional positions on public policy issues; the views represented herein are those of the author(s) and do not necessarily reflect the views of Carnegie, its staff, or its trustees.