Former top court judge challenges Egypt's new constitution
Lone female judge on highest court files complaint questioning charter's legality
The only female judge to sit on Egypt's highest court said Tuesday she has filed the first legal challenge against the country's highly contentious constitution, which cost her the seat she held.
Tahani el-Gebali said she filed her complaint to the Supreme constitutional Court questioning the legality of the charter, which she said was drafted and passed illegally.
The constitution has highly polarized Egyptians. Despite massive rallies organized by the opposition against the charter, which turned deadly at times, and calls for delaying putting it to a vote, the document passed by a 64 per cent "yes" vote in a referendum last month in which around only 33 per cent of voters participated.
Islamist President Mohammed Morsi and supporters of the charter had argued its passing would restore stability to Egypt and complete a rocky transition toward democracy. But the opposition challenges it because it was drafted by a Constituent Assembly dominated by Islamists amid a boycott by liberal and Christian members.
The court is to convene on Jan. 15 for the first time since the constitution came into effect. It is unclear whether it will immediately look into el-Gebali's suit. But experts said that it was unlikely the court will intervene in the charter now that it has passed in a referendum, given that judges have so far avoided such a direct clash in their tussle with Morsi over the balance of powers throughout the constitution-writing process.
El-Gebali a vocal critic of Muslim Brotherhood
El-Gebali, who sat on the constitutional Court for nearly a decade, was removed from her post because the new constitution reduced the size of the court from 18 judges to 10. Within the judiciary, el-Gebali was one of the most vocal opponents to the rise of the Muslim Brotherhood to power, even urging the then-ruling military last year against quickly holding parliamentary elections, since Islamists would likely win the biggest share — as eventually happened.
On Tuesday, el-Gebali said she asked the court in her suit, filed earlier this week, to nullify the consequences of the
'Do these people realize what they are doing to the nation? Blood was shed for the sake of this document.'— Tahani el-Gebali, former top court judge
constitution's passage, including the reduction in the court size. She argues that the forced reduction violates the independence of the constitutional Court, as do other provisions in the constitution that she said put the court under the grip of the president, who approves its members, and deny the court's general secretariat the power to select its own members.
"The threat to the rule of law and judicial independence is what is most dangerous about the decisive moment that Egypt is going through," el-Gebali told a press conference in which she announced her legal complaint.
"Do these people realize what they are doing to the nation?" she said. "Blood was shed for the sake of this document."
El-Gebali said the article reducing the court's size was "vengeful," suggesting it was tailored to remove her and other Brotherhood critics on the court.
Charter prompted judges to protest
The passing of the charter was marred in an unprecedented dispute between the president and the court, and the judiciary at large. In November, Morsi issued presidential decrees that made him and the constitutional Assembly immune from judicial oversight. The decrees aimed to prevent the constitutional court from dissolving the assembly, but it sparked a backlash from the judiciary, which said Morsi was trampling on their independence. Morsi and his supporters accused the courts of being a tool of political opponents to block their agenda.
Amid the height of the crisis that followed, the court tried to convene to rule on the assembly's legality, but its headquarters was surrounded by protesters who supported the charter. The court's judges said they were unable to enter the building and went on strike. Morsi eventually rescinded the decrees but the charter was rushed through an approval process.
'We just shed a regime that erased people's dignity and treated everyone as if they had a price. The new regime is an extension of that, with a change in faces.'— Rights activist Negad Borai
Prominent lawyer and rights activist Negad Borai said the court has the authority to look into the constitutionality of laws, but will not rule against a constitution that has been approved in popular referendum. He said despite outcries against infringement on the judiciary's independence, judges have so far taken little direct action to stop it.
"Why didn't the court protest earlier violations to its independence before it became a constitution," he said. "The judges are lacking the courage and are acting like employees … We just shed a regime that erased people's dignity and treated everyone as if they had a price. The new regime is an extension of that, with a change in faces."
The opposition has said it will continue to challenge the document and will demand amendments to disputed articles once it joins the parliament. Elections are expected to be called within two months; but any modification of the charter would require a two-thirds majority of lawmakers to request a change, to then be put to a referendum.
The top court had also been at loggerheads with the Islamist Muslim Brotherhood as they gained increasing political power after the ouster of Hosni Mubarak. Last summer, the court, which is packed with Mubarak appointees, ordered the dissolving of the Islamist-dominated parliament at the time the military was ruling the country.