Egypts Interpretive Incorporation of Human Rights: The Supreme Constitutional Courts Use of International Sources and Prospects for Its Article 2 Analysis

• Author: Megan L. McMillan
• Position: J.D. candidate, The University of Iowa College of Law, May 2007
• Pages: 1090-1127

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I Introduction

The Supreme Constitutional Court of Egypt (SCC), as the constitutional court of a secular Arab republic, stands in a unique position. Through its interpretation of Article 2¹ of the Egyptian Constitution-which the Court asserts as authority to invalidate laws based on their conflict with historically fundamental Islamic principles-the SCC has the potential to generate a vital discussion between the predominant Egyptian political faction and Islamic fundamentalist civil society regarding the proper roles of religion and the State within the parameters of international civil, political, and human rights norms.

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The SCC's Article 2 doctrine has been criticized for the wide latitude it gives judges in the interpretation of Islamic law, and for the Court's lack of legitimate authority in Islamic jurisprudence.² There is valid concern that if the Article 2 test is too subjective and an activist Islamic fundamentalist court were to ever come to power, the test may be used to sweep away progressive secular legislation. But similar concerns are common to all systems of judicial review, and in the case of the SCC, the concern is perhaps overstated. This Note examines the institutional posture, statutory authority, and self-imposed doctrinal restraints of the Court, and advances an optimistic view of the SCC's Article 2 doctrine. This optimism stems partially from the development of a distinctive form of constitutional interpretation within recent SCC case law, whereby the Court references international human rights conventions³ in applying more generalized articles of the Egyptian Constitution. For ease of reference, this Note names this practice as interpretive incorporation-a term that reflects the significance of the doctrine's upshot: incorporating international obligations into national law. Effectively, the Court has accepted the obligations of human rights conventions as a part of Egypt's higher law, which may be used to strike statutory law. Remarkably, it has done so in a state where political candidates struggle to appear sufficiently Islamic,⁴ and where alignment with the West is consistently a losing strategy.⁵

Although the strong counter-majoritarian currents underlying this doctrine have exposed the Court to scholarly criticism, a strong case can be made that the SCC's innovative interpretational method in fact provides a cultural lense with which to view international norms, and as a result strikes a palatable balance between liberal values and sectarian principles. This Note argues that if the SCC were to combine its interpretive incorporation doctrine with its practice of applying narrowly construed Islamic principles, it may achieve a more perfect doctrine that integrates these two influential value systems, resolving their compatibilities through discussion.

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The beginning sections of this Note contextualize the unique position of the SCC. Part II provides a brief comparative analysis of the legal obligations assumed by various states when treaty law and domestic law come into conflict to locate the importance of the SCC's methodological practice in the larger debate of monist and dualist theories of national incorporation of international law.

Part III introduces the Egyptian political environment. This Part observes that the Mubarak administration has had difficulty in its attempts to contain the political influence of influential Islamic fundamentalist groups. In the past decade, groups such as the Muslim Brotherhood have gained great societal influence by providing key social services such as prolific membership in professional and religious organizations.⁶ An overwhelming majority of the population (demographically 90 percent Sunni Muslim) adopts Islam, a religion that is intended to govern every aspect of an individual's life, including one's social and legal relationships.⁷ The secular and civil law systems, in their encouragement for modernization and interaction with the West, sometimes come into conflict with religious influences. This delicate legal and political context underlines the importance of finding a forum for the resolution of discord between the legal rights of individuals and societal religious devotion.

Part IV reviews the SCC doctrine, underscoring the significance of the increasingly abundant citations to international human rights treaties in the SCC opinions and articulating the judicial restraint built into the Court's Article 2 analysis. The SCC's use of international treaties is unique in that it articulates the rights guaranteed by the Egyptian Constitution through Egypt's international commitments. Interpretive incorporation shows great potential to enhance the effectiveness of treaties at the national level, and it may be used to bridge the ideological fissures that exist between Lockean notions of human rights and the traditional values in Islamic societies.

Arab constitutional scholars call Article 2 an Islamic fundamentalist victory over constitutional compromise, which essentially changes the structure of the regime to a "constitutional theocracy."⁸ For example, Clark Lombardi argues that the subjectivity inherent in the current interpretational method of Article 2 jurisprudence rests as a silent weapon, ready to be wielded by any Islamic fundamentalist-mindedPage 1093 judges who may be assigned to the Court in order to undermine the liberal international human rights standards in Egyptian law.⁹

Part IV also briefly addresses the institutional and political factors that enable and restrict the SCC's ability to integrate foreign concepts and Islamic principles into Egyptian constitutional law. This Part suggests that the SCC has enough power to advance the current administration's goals of alignment with the world community's liberal value system, but not enough power so that it could become a tool of the opposition and rule against these values.

Part V describes how this jurisprudence might prove valuable to Egypt and Arab states in general. The relative autonomy enjoyed by the SCC, combined with more developed methods of judicial interpretation involving the expanded use of international conventions on human rights, will allow the Court to take on an increasingly larger role in the development of liberal human rights rhetoric in Egypt. The strong role played by the SCC in Egypt has the potential to satisfy the losers in Egyptian politics through peaceful means,¹⁰ increase the protection of political minorities,¹¹ and strengthen the Egyptian Constitution. This is because the language of international human rights conventions provides the substantive ammunition to strike down legislation unfavorable to modern notions of human rights and to further articulate the boundaries of citizens' rights.

Even more optimistically, while this form of interpretation increases the Court's ability to expand rights definitions, it also limits the subjectivity inherent in the Court's Article 2 analysis. The substance of treaties does not provide for certain outcomes; the greater number of steps taken by the SCC in the direction of refining the ambiguous language of the Egyptian Constitution, the greater the number of stepsPage 1094 that would need to be taken backward in order to reverse this jurisprudence.

Part VI explores briefly the institutional context in which the Court operates, and predicts that it has enough political capital, statutory insulation, and international support to continue its relatively activist jurisprudence, while maintaining certain political limits.

Finally, Part VII identifies some of the potential compatibility problems with Islamic principles and Western notions of civil, economic, and political rights. This Part suggests that the Court's doctrine might operate as a forum for the important political discussion that must take place to further integrate these sometimes competing value systems.

II Comparative Review of Domestic Judicial Treaty Incorporation

At the conclusion of a treaty in any particular state, uncertainty might remain as to the breadth of the treaty's domestic application. The legal obligations of states are called into question when difficulties arise in regards to the compatibility of treaty language and constitutional or domestic law. The two principal competing theories of these obligations are monism and dualism.¹² Under monism, the national laws of states are subordinate to the greater framework provided by international law and custom. Any conflicts of law under this...