The Judicialization of Mega-P The Judicialization of Mega-Politics in E olitics in
Egypt’s Administr s Administrative Courts: Insight into The Rulings of the Egyptian
State Council (2000-2020)
Introduction
The interrelationship between law, courts and politics has always been complex and
multidimensional. The role and significance of courts as a political actor are prominent
dimensions of this interrelationship. In this regard, the world has witnessed a profound
transfer of power from representative institutions to judiciaries over the last decades.
1
Courts all over the world are making significant policy decisions that were previously
perceived as the purview of politicians.
2
The judiciary increasingly gains more authority as
an influential institution interacting with other political actors in a society. The range of
activities over which courts exercise considerable authority has immensely expanded
quantitatively and qualitatively. The increasing political significance of courts has
expanded in scope to comprise the most core political, moral, social and economic
controversies.
Theoretically, the Separation of Powers doctrine connotes that judges are competent with
resolving disputes. Their fundamental function is to apply law. On the other hand,
politicians, mainly the elected representative of the people, are responsible for making law.
Accordingly, the process of policy-making is essentially entitled to politicians.
Establishment of public policies is the outcome of political interactions that take place
within the representative institutions of a society. Politicians are supposedly the ones
responsible for providing solutions to social, economic and political quandaries through
democratic means.
1
Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75
FORDHAM L. REV. 721 (2006).
2
Tom Ginsburg, The judicialization of administrative governance: Causes, consequences and limits, 2008 at
1
Over the past decades, judicial power has expanded all over the world.
3
In the context of
separation of powers, while practicing their main function i.e. judicial review, courts
gradually expand their authority and constantly issue rulings pertaining to the most pivotal
social, economic and political predicaments in many countries. Hence, the process of
policy-making has been deeply integrated with the core function of judges to interpret and
apply the law. This led to the emergence of what may be termed the “judicialization of
politics”. The locus of political activity and making public policies, regarding fundamental
matters in almost all aspects, has been transferred to courtrooms. The judicialization of
politics has expanded its ambit to comprise what is termed “megapolitics”- matters of
ultimate political significance in a society. The ever-increasing judicialization of politics
and mega-politics is considered one of the most striking phenomena in late-20th and early-
21st century government.
4
It is argued that:
Core political controversies are framed as predominantly constitutional
ones, with the concomitant assumption that courts are the suitable forum to
deal with them. The list of examples seems endless: the fate of the American
presidency or national health care plan; what is the exact meaning of Israel's
self-definition as a Jewish and democratic state; the legitimacy of the
German bailout deal or the status of German sovereignty in the larger EU;
the validity of Russia's war in Chechnya or accession to the WTO; the
dollarization plan in Argentina; disqualification of political parties in
Turkey, Belgium and Spain; the scope of Islamic law as a source of
legislation in Egypt or Malaysia; whether sending Korean troops to Iraq is
allowed; whether violation of term limits by incumbent leaders in
Colombia, Uganda, or Venezuela is constitutional.
5
There have been constant endeavors to explore and assess the tendency towards the
judicialization of politics. These attempts mainly focus on the situation in established
3
Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD HANDBOOK OF LAW
AND POLITICS 81, 82-87
4
Ran Hirschil, The Fuzzy Boundaries of (Un)Constitutionality: Two Tales of Political Jurisprudence, 31 U.
Queensland L.J. 319 (2012).
5
Id.
democracies like the US and European countries,
6
and in nascent democracies.
7
What is
usually at stake is the democratic credentials of judicial review. Tremendous controversies
are raised about the expansion of judicial review and whether it is a counter-democratic
practice or it can be reconcilable with democracy. The fact that courts have been promoted
and gained more authoritative power than before has precipitated fierce debates on whether
this power increase at the expense of the representative institutions. On the other hand,
unfortunately, the judicialization of politics in authoritarian regimes rarely receives
plausible attention in the academic work and if so, focus is mainly directed to constitutional
courts.
8
This work endeavors to analyze cases of the Egyptian State Council’s involvement in mega-
politics i.e. core political, social and economic controversies. The purpose if this work is
of tripartite significance. First, it seeks to enrich the literature on the judicialization of
mega-politics through examination of the phenomenon in Egypt as a part of the
understudied region of the Arab World. In the meanwhile, it fills in a pivotal gab by
studying administrative courts instead of concentrating only on the Supreme Constitutional
Court (hereinafter referred to as the SCC). Second, this work explores the interrelationship
between administrative courts, law and politics to determine whether the engagement by
courts in the policy-making process reflects the occurrence of the judicialization of mega-
politics in a comparable way to the situation in consolidated democracies. Third, this work
attempts to trace the development of the judicialization of mega-politics not only through
examining the final declaration of courts’ rulings, but also via thorough legal examination
6
See, e.g., Martin Shapiro, Juridicalization of Politics in the United States, 15 INT’L POL. SCI. REV. 101
(1994); Cristine Landfried, The Judicialization of Politics in Germany, International Political Science
Review, 1994; Russell A. Miller, Lords of Democracy: The Judicialization of Pure Politics in the United
States and Germany, 61 Wash. & LEE L. REV. 587 (2004); Barry Holmstrom, The Judicialization of
Politics in Sweden. International Political Science Review, 1994.ANDFRIED
7
See, e.g., JUDICIALIZATION OF POLITICS IN LATIN AMERICA (Rachel Sieder et al., eds. 2005);
Chien-Chih Lin, The Judicialization of Politics in Taiwan, 3 AsianJLS 299 (2016); CHIEN-CHIH LIN, THE
JUDICIALIZATION OF POLITICS IN NEW DEMOCRACIES.
8
See, e.g., Duncan McCargo, Competing Notions of Judicialization in Thailand, Contemporary Southeast
Asia Vol. 36, 2014; Alexei Trochev, Less Democracy, More Courts: A Puzzle of Judicial Review in Russia,
2004.
of the verdicts substance to point out the mindset of judges and their legal and judicial
means to judicialize pure politics. Such dual examination provides a more comprehensive
and profound understanding of the proliferation of judicialized mega-politics and help to
specify the factors which fundamentally affects its emergence and progress. Furthermore,
this work proposes that the occurrence of the judicialization of mega-politics in the State
Council courtrooms has been constantly observed all over the past twenty years from 2000
to 2020. Administrative judges have clearly exhibited robust engagement in matters of
utmost social, economic and political significance.
This thesis proceeds in three parts. Part 1 illustrates the definition of the phenomena of
judicialization of politics and mega-politics and their proliferation as global trends and then
move to the situation in Egypt to demonstrate the jurisdiction and functions of the State
Council (administrative judiciary) in Egypt. Part 2 indicates the forms of judicialization of
mega-politics in administrative justice through analysis of some major judgments that
represent the engagement of administrative courts in major social, economic and political
quandaries. Part 3 articulates the factors contributing to the administrative courts’
judicialization of mega-politics.
Chapter I. The phenomenon of the judicialization of mega-politics.
This chapter seeks to illustrate the global tendency towards the judicialization of politics
and mega-politics and depict the common literature’s main theories for explaining this
phenomenon. Besides, it elaborates the emergence of the judicialization of politics in Egypt
in the past two decades especially in the judgments of the Supreme Constitutional Court
(SCC). Then it explores the judicial competence and functions of the State Council in Egypt
as an endeavor to explain why a nondemocratic regime may empower administrative courts
to the extent that they are capable of judicializing mega-politics.
A. The judicialization of politics and mega-politics as global trends.
To “judicialize” is to “treat judicially, make judicial in character, to subject to judicial
process or decision.”
9
In this regard, “judicially” refers to “capacity of judge, in relation to
the administration of justice by legal process, by sentence of a court. ”
10
Accordingly,
judicialization simply refers to the expansion of treating a wide range of aspects judicially.
On the other hand, undoubtedly there is no universal or legally accepted definition of
9
Lexico Dictionary, Powered by Oxford, available at https://www.lexico.com/definition/judicialize (last
visited Jan. 14, 2022).
10
Torbjorn Vallinder, The judicialization of politics- A worldwide phenomenon, International Political
Science Review 1994.
“politics. In other words, it has a numerous number of definitions according to the lens
through which it is perceived.
11
In the context of this research, I address the term “politics” as the art of government. The
word “politics” originates from the Greek word “polis”, which means city-state. Therefore,
politics mainly relate to what concerns the state; its aims, purposes and institutions. A
narrow definition of politics in this regard is the study of the government- a collection of
officers who make, interpret and enforce rules for the whole community.
12
According to
this definition, politics occur only within the government departments, cabinet rooms and
legislative chambers. Hence, only civil servants, politicians and lobbyists are involved in
politics and the vast majority of the people are not engaged. All the institutions that are not
“running the country” are considered as “non-political.”
13
At the top of these institutions is
the judiciary.
Judicialization of politics is a multifaceted concept that has not been inclusively defined.
There are two main approaches attempting to define this phenomenon. The first One depicts
the phenomenon by concentrating on the proliferation of judicial decision-making methods
and legal discourse in every aspect of modern life. Accordingly, the judicialization of
politics refers to “the spread of legal discourse, jargon, rules, and procedures into the
political sphere and policy-making forums and processes.”14 It reflects the situation in
which law, litigation, and legal discourse have permeated every corner of society as a
feature of the complexity of modern societies.
14
It is manifested by the subordination of
almost all decision-making forums in modern societies, especially those adhering to the
rule of law, to quasi-judicial procedures and rules. It is genuinely related to law’s
11
Eugene F. Miller, What Does "Political" Mean? 42 The Review of Politics. 56 (1980).
12
Valeri Modebadze, The term politics reconsidered in the light of recent theoretical developments, IBSU
Scientific Journal (IBSUSJ), 2010 at 41.
13
See HeywoodAndrew, Politics, Macmillan Press LTD, London, (1997). 14
Ran Hirschl, Supra note 1, at 723.
14
Rachel Sieder, Introduction to The Judicialization of Politics in Latin America, at 5.
expropriation of social conflicts and its control of social relations, and accordingly is
sometimes described as “judicialization of social relations.”
15
The other approach of defining the judicialization of politics focuses on the expansion of
the judiciary’s role and the increasing significance of courts as an actor in the political field
compared to other main actors i.e. the legislatures and executives. In this regard, the
judicialization of politics is defined as “the process by which courts and judges come to
make or increasingly dominate the making of public policies that had been previously made
by other governmental agencies, especially legislatures and executives.”
16
It characterizes
“the reliance on courts and judicial means for addressing core moral predicaments, public
policy questions, and political controversies.
17
” Accordingly. the judicialization of politics
represents the expansion of the judiciary’s power at the expense of the legislatives and
executives. Decision-making authority regarding crucial social, economic, moral or
political controversies is transferred to courts from politicians and/or administrators.
18
In my perspective, the second approach provides more proper definition of the tendency
towards the judicialization of politics as it focuses on the expansion of judicial review at
the expense the executives and legislatures, which results in courts determination of the
outcomes of major social, economic and political quandaries and public policy questions.
Amplification of judicial review is the focal point of the phenomenon of the judicialization
of politics. In terms of separation of powers, judicial review is entitled to courts mainly to
preserve this separation. However, judges’ jurisdiction has been largely expanded.
Although judges have to base their decisions on pre-existing constitutional and statutory
texts, their discretion and interpretative authority of these texts are so huge that they get
15
Ran Hirchil Supra note 1, at 724-725.
16
TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND ECONOMIC
DEVELOPMENT IN EGYPT, CAMBRIDGE UNIVERSITY PRESS, 2007 at 26.
17
Ran Hirschil, The judicialization of politics, THE OXFORD HANDBOOK OF POLITICAL SCIENCE, 2011, at 1.
18
Torbjorn Vallinder, Supra note 10, at 1.
embroiled in making public policy decisions as well as establishing judge-made laws.
Hence, they are essentially legislating, not adjudicating.
19
On the other hand, the first approach of defining the judicialization of politics does not
depict the genuine elements of the phenomenon. Rather, it provides for a contributory factor
of judicialized politics. The proliferation of law and legal discourse in all aspects of the
society is not the core of the global trend towards the judicialization of politics. Instead, it
substantially leads to providing more opportunities to courts to deeply involve in public
policy questions, and political controversies, and consequently judicialize politics. The
current situation in which law, litigation and legal discourse prevails in modern societies
represents a favorable political environment enabling judges to get embroiled in core social,
economic and political dilemmas.
Ran Hirschil introduces a distinct category of the judicialization of politics, which he terms
“the judicialization of mega-politics.” It refers to “the reliance on courts and judges for
dealing with core political controversies that define (and often divide) whole polities.”
20
He indicates that it comprises a few subcategories such as judicialization of electoral
processes; judicial review of executives’ prerogatives in the fields of macroeconomic
planning or national security; core restorative justice controversies; judicial corroboration
of regime transformation; and, most importantly, the judicialization of formative collective
identity, nation-building processes, and struggles over the very definition of the polity as
such.22
Hirschil differentiates between the judicialization of mega-politics on the one side, and on
the other side, the judicialization of “ordinary” public policy making. The latter refers to
the involvement of judges in determining public policy outcomes, mainly through
19
STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 1 (2000).
at 61.
20
Ran Hirschil, supra note 18, at 4-5.
22 Id.
"ordinary" constitutional rights jurisprudence and the judicial redrawing of boundaries
between state organs.
21
It is sometimes also described as “judicialization from below” as it
is often initiated by rights plaintiffs who challenge the public policy decisions or practices
of the executives or legislatures. The judicialization of “ordinary” public policy making is
usually related to expanding the ambit of constitutional rights protection, if threatened by
encroachment of the executives and/or legislatures. Therefore, its common examples are
the cases related to civil liberties and procedural justice in decisionmaking.24
The substantial difference between the two categories of judicialization is political salience.
The judicialization of “ordinary” public policy may appear in cases related to determination
of the right to a speedy trial or to a fair hearing in criminal justice, but they are not
considered as politically prominent as the cases in which courts determine the legitimacy
of a certain polity or a nation’s collective identity, which manifest the judicialization of
mega politics (sometimes termed judicialization of pure politics). It has to be put into
consideration that the political salience may relatively vary in different circumstances.
What is conceived as a controversial matter of a political significance in a given regime
(like the right to abortion) may be considered a nonissue in another polity. As a result, the
criterion of political salience for distinguishing what is considered a judicialization of
mega-politics is “elusive yet intuitive.”
22
Works that attempt to give explanation of the global tendency towards the judicialization
of politics can be divided into four main approaches. The first approach explains the
phenomenon through the lens of rights jurisprudence. According to this rights-centred
perspective, the judicialization of politics stems mainly from the ever-growing awareness
of rights issues and constitutional protection of these rights. Courts are perceived by civil
society groups and political activists as effective and nonpartisan authority for claiming
21
Ran Hirschil, supra note 1.
24 Id.
22
Id. at 728.
their rights and freedoms.
23
The ascendancy of civil rights and liberties contributes to the
judicialization of politics. Such ascendancy is attributed not only to active judges but to the
existence of “support structure” consisted of the influence of advocacy groups, the
establishment of governmental enforcement agencies, the growth of financial and legal
resources for ordinary citizens, and the strategic planning of grass roots organizations.
24
This support structure boosts the access of individuals and interest groups to courts, which
provide them with tremendous privileges. For instance, they are not in need of forming
broad coalitions and seeking for strong political parties to defend and boost their demands
and interests in political field. Courts provide an easier, more rapid and effective
opportunity for them to raise their voice and share in the governance of their society.
Consequently, the growing reliance on courts by individuals and social movements leads
to the involvement of the judiciary in making public policy decisions and hence
judicializing politics.
A second approach, which is a functionalist one, attributes the judicialization of politics to
the increasing complexity of modern societies. States comprises increasingly many
administrative agencies with policy making authorities. For proper government, they
necessitate standardized legal norms and active judiciary as policy makers not just arbiter.
25
On the supranational level, the same tendency towards the judicialization of politics results,
for example in the European Union, from the need for unified legal and administrative
norms across all member states which encounter major coordination problems.
26
23
C. NEAL TATE AND TORBJORN VALLINDER (eds). 1995. The Global Expansion of Judicial Power. New
York Univ. Press, 1995.
24
Charles Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective,
Chicago: Univ. Chicago Press 1998.
25
MARTIN SHAPIRO & ALEC STONE SWEET, On Law, Politics, and Judicialization. New York: Oxford Univ.
Press 2002.
26
Stone-Sweet. Governing with Judges: Constitutional Politics in Europe, Oxford Univ. Press A. 2000. 30
Jasdeep Randhawa, Understanding The Judicialization of Mega-Politics: The Basic Structure Doctrine
and Minimum Core, 2011.
A third approach, which is a court-centered one, argues that courts are the main pillar of the
tendency towards judicialization of politics. They expand their scope of judicial review at
the expense of other organs raising controversies about the traditional principles of
separation of power. In some cases, courts and judges are the ones who largely amplify the
ambit their judicial competence and adjudicate on major public policy questions and then
the same courts may opt to impose self-made judicial restraints on their judicial review.30
These judicial restraints may be grounded on limited capacity of courts to decide on some
pure political controversies and preserving the courts public image.
A forth approach, which is a realist one, contends that the judicialization of politics is, first
and foremost, a political not a juridical phenomenon.
27
Courts are political institutions
which work within the same social, political, and economic spheres, like other political
institutions, in a given society. Based on this perception, political support is a prerequisite
for the judicialization of politics, especially that of mega-politics.32 The phenomenon is
largely the outcome of the intentional delegation of policy making authority to courts by
politicians. There are a number of reasons for this delegation by the political stakeholders
including minimizing risk by transferring political responsibility to courts, avoiding
difficult and thorny decisions. On the other hand, political opposition may seek for
judicializing politics via resorting to courts in order to obstruct government and challenge
its policies. The absence of a political environment that is conducive to the judicialization
of politics, especially that of mega-politics, would result in a legislative and/or executive
backlashes against courts. They comprise legislative overrides of controversial verdicts,
encroachment on judicial appointment procedures to ensure the appointment of
“compliant” judges, in addition to establishment of constraints on the scope of judicial
review.
27
Ran Hirschil, supra note 1 at 753
32 Ran Hirschil, supra note 18 at 17.
In my view, courts are the main driving force leading to the judicialization of politics. A
convergence of social, legal and political factors is necessary for the existence and
continuity of judicialized politics. However, all variables are the same, judges are the
cornerstone of the tendency towards the judicialization of politics. The scope of judicial
review is, first and foremost, determined by judges. In both civil-law and common-law
states, judges are entitled the competence of judicial interpretation of constitutional and
statutory rules. The amplification of the ambit of judicial review and engagement of judges
in crucial social, moral and political controversies are basically contingent on the strategic
choice by judges to explicitly or implicitly declare their judicial competence over the
subject-matter of the dispute and adjudicate on the outcome of the
controversies.
28
Undoubtedly, the explosive growth of government power at every level, which necessitates
the escalation of judicial review over various agencies and institutions of the government,
as well as the proliferation of rights discourse all over the society contribute to the
judicialization of politics. However, they do not solely account as the main grounds for the
emergence of this phenomenon. On the other hand, the need of political support as a
prerequisite for the judicialization of politics and the intentional delegation of public policy
making authority to judges by politicians do not explain the appearance of judicialization
of politics, let alone that of mega-politics, in authoritarian polities like Egypt,
29
Russia,
3031
an Thailand,
32
where “political support” is unlikely to be provided to courts by politicians
in power.
In Egypt, the judicialization of politics has been constantly and evidently manifested in the
SCC’s decisions. The SCC has managed to expand it powers and decide on the outcomes
28
In chapter 3 of the thesis, I will provide further elaboration and consolidation of the argument that courts
are the main driving force leading to the judicialization of politics.
29
See Tamir Moustafa, Supra note 17.
30
See Armen Mazmanyan, Judicialization of Politics: The Post-Soviet Way, Oxford University Press,
31
.
32
See Duncan McCargo, supra note 8.
of numerous social, economic and political controversies. It is argued that the SCC was, at
first, empowered by the controlling regime mainly for economic considerations related to
the objective of attracting foreign direct investment by providing credible commitment that
property rights would be protected through an independent process of judicial review.
33
However, the Court gained additional leverage with which it intervened in other
policymaking spheres, including civil and political rights and humanrights-related
controversies. Analysing the SCC’s decisions indicates that it served as a “dual-use”
institution. On the one hand, it has corroborated the regime’s fundamental economic
objectives and accommodated its political interests.
34
On the other hand, it served as the
most significant resort for human rights groups, opposition parties and political activists to
boost civil and human rights safeguards.
35
Furthermore, the scope of involvement in crucial
moral and political controversies extended to the collectiveidentity contentions like the core
question of the status of Shari’a rules as the primary source of legislation in addition to
various prominent questions related to religion.
36
The apparent tendency towards the
judicialization of politics in Egypt is consistent with, and actually provides an empirical
evidence in support of, the proclamation that in the “nonconstitutional” Arab World, written
constitutions can provide a ground work for possible limited constitutional government.
37
Although these constitutions are perceived to have a relatively limited effect in regard to
imposing restraints on the exercise of the government power, they may effectively
contribute, with other mechanisms, to the establishment of some sort of accountable
government.
33
Tamir Moustafa, Law versus the State: The Judicialization of Politics in Egypt. LAW & SOCIAL INQUIRY,
vol. 28, no. 4 at 885.
34
As for the economic interest of the regime, the Court, for example, supported the regime’s transition from
socialist-oriented economy to capitalism by striking down socialist-era legislation. As for the political arena,
the Court, for example, ruled that the Egyptian Security Courts constitutional and permanently delayed
issuing a ruling on the constitutionality of civilian transfers to military courts.
35
Tamir Moustafa, supra note 37.
36
Ran Hirschil, The Judicialization of Mega-Politics and the Rise of Political Courts, The Annual Review
of Political Science, 2008, at 104; Examples of these cases are the following: al-Mah. kamah al-Dustūrīyah
al-‘Ulyā [Supreme Constitutional Court], case no. 20, session of 4 May 1985, year 1; al-Mah. kamah
alDustūrīyah al-‘Ulyā [Supreme Constitutional Court], case no. 8, session of 18 May 1996, year 17.
37
See NATHAN J. BROWN. THE RULE OF LAW IN THE ARAB WORLD: COURTS IN EGYPT AND THE GULF,
CAMBRIDGE UNIVERSITY PRESS 1997.
The embroilment of the SCC in fundamental political quandaries through a series of
decisive verdicts was also prominent in the transition period after the revolution of 2011.
The court is criticized for its plain intervention in pure political controversies “in a manner
that would have been unthinkable prior to the Revolution.”
38
The SCC empowered itself
and supported judicial despotism over core political questions simply through stating that
it is practicing no more than its judicial competence of the constitution interpretation. The
judicialization of pure politics by the SCC took part in a series of ever-escalating
constitutional crisis that could have been avoided if the Court embraced constitutional
silence, by which constitutional courts in other authoritarian regimes like Chile and Serbia
managed to create apolitical judicial culture to their respective regimes.43
B- Jurisdiction and Functions of administrative courts in Egypt
Prior to engaging with the cases manifesting the judicialization of mega-politics in
administrative courts, it is of paramount importance to briefly elucidate, first, the State
Council’s judicial competence according to its statute (law no. 47/1972) and the
constitution. Second, I depict roles and functions of administrative courts as influential
institutions interactive with other components of the society.
Egypt is a civil-law state that follows the Latin model of the judiciary structure; composed
of three main judicial bodies: ordinary courts, administrative courts, and at the top, one
constitutional court (the SCC). On the other hand, the Egyptian legal system embraces a
tripartite hierarchy of legal rules. First, the Constitution, which all other rules have to be in
conformity with. Second, legislative (statutory) rules: which are those enacted by the
legislature. Third, bylaws (regulations): which are detailed rules issued by the executive
38
Mohammad H. Fadel, The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional
crisis, and constitutional silence, OXFORD UNIVERSITY PRESS, 2018, at 938. 43 Id. at 937.
branch’s ministries, agencies and departments. They have to comply with the two superior
categories of legal rules (constitutional and statutory ones).
Constitutional Review is exclusively entitled to the SCC by virtue of consecutive Egyptian
constitutions. Striking down statutory rules falls exclusively within the scope of the SCC’s
judicial review rather than any other judicial institution. The only ground for invalidating
a legislation is to be declared unconstitutional by the SCC. Accordingly, administrative
courts have no judicial review of any action of the legislature and not authorized to strike
down a legislation.
In 1946, the State Council (administrative judiciary) was established and entitled to limited
jurisdiction over certain administrative disputes.
39
In 1972, The State Council’s jurisdiction
was expanded to encompass all administrative disputes.
40
It has comprehensive judicial
review over actions and decisions of the executive’s agents and departments. It was, at first,
affiliated to the executive branch, but in 1984, it acquired institutional independence by
virtue of a legislative amendment and was declared an
“independent judicial authority” pursuant to the provisions of the 1971 constitution.
41
As for the functions of administrative courts, there used to be a widely accepted assumption
in comparative law literatures that democracy is a prerequisite for the emergence of judicial
power.
42
This is attributed to the hypothesis that courts in authoritarian polities are
perceived to be puppets, and often claws, in the hands of the controlling regimes that are
not likely to possess reasonable independence. Some scholars advocated this perception
claiming that “It is hard to imagine a dictator, regardless of his or her uniform or ideological
stripe, inviting or allowing even nominally independent judges to increase their
39
Law no.112/1946 on the establishment of the State Council.
40
Article 10 of Law no.47/1972 states that “The State Council has jurisdiction over … and all administrative
disputes.
41
Article 2 of Law no. 136/1984.
42
Tamir Moustafa, supra note 37 at 885.
participation in the making of major public policies.”
43
Recently, there has been a
recognition that even in highly-restricted political regimes, courts increasingly gain judicial
authority. The empirical study in such polities indicate that courts are not irrelevant to
political life. Rather, they perform various roles that are influential and interactive with
other political institutions of an autocratic state.
4445
In this regard, courts are perceived to
help regimes pursue significant objectives such as maintaining social control, attracting
capital, maintaining bureaucratic discipline, adopting unpopular policies, and enhancing
regime legitimacy.
46
In this regard, I argue that Egyptian administrative courts have been entitled relatively
extensive scope of judicial review in order to perform three fundamental roles: managerial,
economic and political. First, they provide significant means to boost discipline in the
immense bureaucratic machinery. Although a restrictive regime is likely to pay little
attention to safeguards of individual rights and basic freedoms, its need of an efficient
functioning of the entire administrative apparatus is apparent. Administrative courts
provide effective channels for reinforcing bureaucratic compliance and monitoring the
executive’s officials. In the 1970s, administrative courts’ competence was expanded to
“restore discipline to a rapidly expanding and increasingly unwieldy bureaucracy.”
47
Second, in 1972, administrative courts were entitled, pursuant to legislative amendment of
their statute, to comprehensive review over the executive branch’s agencies and
departments. Empowerment of administrative courts was in consistency with a more
overall strategic judicial empowerment tendency of the regime. It was deployed as an
economic motivation to entice foreign investors to establish their private investments. After
Nasser era, the Egyptian regime was transformed from a state-monopolized economy to a
liberal one. Accordingly, there was genuine need of direct investments especially that of a
43
Tate, C. Neal. 1995. Why the Expansion of Judicial Power in THE GLOBAL EXPANSION OF JUDICIAL
POWER. New York Univ. Press, 1995at 28.
44
Tamir Moustafa and Tom Ginsburg, Introduction: The Functions of Courts in Authoritarian Politics,
45
, in LAW AND COURTS IN AUTHORITARIAN REGIMES, Annual Review of Law and Social Science, 2004 at 2.
46
See generally id.
47
Tamir Moustafa, Law and Courts in Authoritarian Regimes, 10 Annu. Rev. Law Soc. Sci. 2014. 281–99, at
284.
large scale. Administrative judiciary provided, along with the SCC, authentic legal security
for both national and international investors, who were totally aware of the oppressive
process of capital nationalization that took place during Nasser’s era. Alongside with other
constitutional and legal guarantees, administrative courts have been serving as a substantial
check on the executive’s potential encroachment on property rights.
48
Third, consecutive Egyptian regimes have often deployed administrative courts to bolster
their political legitimacy. In Egypt, some scholars contend that law primarily serves as an
efficient and disciplined exercise of state power- a feature described as “rule by law.”
49
One
of the main characteristics of this feature is to constantly maintain the appearance of a
“liberal” and “democratic” state, in which the judiciary is, in legal terms, capable of reining
in the executive authority via practicing judicial review. Administrative courts were granted
comprehensive review of the executive’s actions to boost and enhance the image of
effective checks and balances to sustain the regimes’ political legitimacy.
Chapter II. Forms of the judicialization of mega-politics in the Egyptian
State Council:
This Chapter analyses a number of remarkable administrative courts’ judgments that
apparently involve judicialization of mega-politics. Given the fact that these courts issue
thousands of verdicts all over the state, it is important to define certain criteria to distinguish
judgments that manifest judicialized mega-politics. In my view, a given verdict highlights
the judicialization of mega-politics when it possesses one or more of the following
characteristics: 1) narrows the doctrine of sovereignty acts, considered as one of the
48
Tamir Moustafa, supra note 37 at 885.
49
Tamir Moustafa, supra note 51, at 282.
cornerstone prerogatives of the executives because it falls outside the realm of judicial
review. 2) encompasses explicit judicial law-making concerning pivotal matters, as an
intervention of the judiciary in the substantial prerogative of the legislatures i.e. enacting
law. 3) involves adoption or abolition of a public policy related to substantial social,
economic, or political questions. All these situations represent the transfer to the judiciary
of the public policy-making authority, previously held by legislatures and executives.
It should be emphasized that the following three forms of judicialization of mega-politics
should not be subject to binary-model of assessment; either representing constantly
excessive expansion of judicial review or permanently falling within the legitimate scope
of judicial competence. Rather, all forms of judicialization of mega-politics ought to be
assessed on a case-by-case basis according to the facts of the case, the nature of the actions
in question, and the relevant constitutional and statutory framework. Accordingly, in the
following chapter I analyze each verdict separately to indicate the legal grounds and
judicial techniques deployed by administrative judges to expand the conventional realm of
judicial control over the executive’s actions whether relevant to crucial social, economic or
political matters. Besides, I evaluate the judgment in order to indicate whether the court
trespassed borders of judicial control and encroached on the jurisdiction of the executive
and/or the legislature, or the court exercised its competence in consistency with the
constitution without infringement of another authority’s jurisdiction.
It should be pointed out that the suggested criteria for determination of forms of the
judicialization of mega-politics are basically related to the legal substance of the following
judgments rather than their actual political implications. These criteria are contingent upon
the constitutional and legal bases of these verdicts engaging in core social, economic and
political matters. Hence, it is outside the scope of this research to trace social and political
outcomes of these judgments. Besides, it is beyond its scope to evaluate values, social
backgrounds, ideological approaches of judges. Research scope is limited to engaging with
the legal grounds, judicial techniques and legal reasoning of judges in establishing their
jurisdiction over various disputes and consequently judicializing mega-politics.
A- Narrowing the doctrine of sovereignty acts:
The “Acts of Sovereignty” doctrine refers to a set of actions performed by the executive
branch that are exempted from judicial review. The doctrine has been explicitly stated in
all the statutes regulating the State Council. Law no.112/1946 that established the Egyptian
State Council provided for the exclusion of sovereignty acts from administrative courts’
judicial review.
50
The same doctrine is embraced by all consecutive statutes regarding the
State Council including the current law in force no. 47/1972 which regulates the structure,
organization and competence of the State Council.
51
However, none of these laws provides
a definition of the acts of sovereignty.
A number of approaches attempt to set a criterion for determination of what is meant by the
acts of sovereignty in order to differentiate them from ordinary administrative acts subject
to judicial control. One approach adopts the “political motive” criterion, which relies on
the motive behind the executives’ actions. The action is considered an act of sovereignty
when the motive that induced executive authority to take it is “political” and hence falls
outside judicial control. Otherwise, it is an administrative action when the motive behind it
is administrative, and consequently it is subject to judicial review. This approach was first
introduced by the French judiciary which chose not to engage in matters of political nature
and implications in order to maintain its authority of judicial review over other
governmental acts.
52
This approach was heavily criticized for being inaccurate in
determining the acts of sovereignty, especially as there are plenty of governmental actions
that have both political and administrative motives. Second, this criterion enables the
executive branch to exclude judicial review over administrative actions by declaring there
is a political motive for performing these actions when in fact there is not.57
50
Article 6 of law no.112/1946.
51
Article 7 of law no. 9/1949, article 12 of law no. 165/1955, article 12 of law no. 55/1959.
52
See MOHAMMED R. ABDELWAHAB, Al-Kada’ Al-Idari (ADMINISTRATIVE JUDICIARY), Arabic, Dar
Elgamaa El-gadida, 2011 at 233 (Explaining the approach and elucidating its aspects of criticism). 57 See
id.
A second approach argues for the “nature of act” criterion. Since both administrative and
sovereignty actions are taken by the executive branch, an objective criterion contingent
upon the nature of the act itself is helpful in distinguishing acts of sovereignty.
53
According
to this criterion, the executive authority performs two main functions, governmental and
administrative. The actions taken by the executive branch as “a government” authority are
considered acts of sovereignty. The “governmental” function is apparent in all major
actions taken by the state as a political unified entity as well as decisions protecting its
supreme national interests.
54
On the other hand, When the executive authority acts as an
“administrative” authority, its actions are therefore administrative and subject to judicial
review. The administrative function of the executives is what relates to the daily application
of law and the relations between individuals and local and central departments of the
executive authority.
55
This approach is criticized for ambiguity. It is incapable of providing
a clear and decisive tool of differentiating between the two main functions of the executive
as they are overlapping in many actions.
A third approach argues for a “judicial list criterion” for determination of sovereignty acts.
As the doctrine of sovereignty acts was basically created by the judiciary, resorting to
judgments would clearly reveal the nature and forms of these acts. Jurists analyze verdicts
related to acts of sovereignty to classify them according to the judges’ perspectives into one
inclusive list. According to this approach, acts of sovereignty are those performed by the
executive power and not subject to if judicial power control if the court so decides.
56
53
See Justice KHALED HAMMAD, Hodud al-reqaba al-qada’ea ala soltat al-idara al-taqdiria,
(BOUNDARIES OF JUDICIAL REVIEW OF THE ADMINISTRATION’S DISCRETIONARY POWER), Arabic, 2nd
Edition, 2013, at 427 ((providing plenty of cases as examples of the approach and indicating its aspects of
criticism).
54
MOHAMMED R. ABDELWAHAB, supra note 56 at 236.
55
WAHEED RAAFAT, Reqabat al kada’ lea’mal al-dawla (JUDICIAL REVIEW OF THE STATE’S ACTIONS), Arabic,
at 142.
56
SOLIMAN TAMAWI, Al-Kada’ Al-Idari (ADMINISTRATIVE JUDICIARY), Arabic, 1967, at 421.
Based on reviewing judgments of the State Council, Law scholars classified sovereign acts
into four main groups: 1) acts related to foreign affairs and international relations with other
countries 2) acts related to war actions 3) acts related to safety and internal security of the
state 4) acts related to the relationship between executive and legislative authorities.
57
Jurisprudence provides some examples of the State Council case-law since its
establishment for each of the four categories as following.
1) Acts related to foreign affairs:
Actions of the executives related to foreign affairs are considered acts of sovereignty. This
include all actions pertaining to negotiations with other states, concluding and signing
international treaties and conventions. Also, actions related to international relations with
other states or international organizations falls in the realm of sovereignty acts.
Establishment or cutting diplomatic relations with a state or an international organization
and joining, withdrawal from an international entity are examples of actions performed by
the executive branch as a “government” authority and accordingly are exempted from
judicial review.
The Egyptian State Council declared non-competence over the presidential decree to
conclude the 1979 Peace Treaty with Israel for being an act of sovereignty.
58
In addition,
administrative courts declared that they lack jurisdiction over the application for cutting
diplomatic relation with Germany.
59
The State Council adopted the same approach and held
that it has no jurisdiction to order the executive branch to close the Israeli embassy and
57
Justice RAMADAN S.NEGM, Dur al-kadaa al-idari fi reqabat al-sulta al-taqdiria lel-idara, (ROLE OF
ADMINISTRATIVE JUDICIARY IN REVIEW OF THE ADMINISTRATION’S DISCRETIONARY POWER), Arabic, Dar
Al-Nahda Al-arabia, 2016, at 118 ((providing plenty of cases as examples of the approach)
58
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 287, session of 1 May. 1979, year
33 (Egypt).
59
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 1202, session of 29 May. 2007,
year 61 (Egypt).
expel the ambassador
60
and the same for Turkish embassy and ambassador and considered
all these actions as sovereignty acts.
61
2) Acts related to war actions:
Actions pertaining to war are considered acts of sovereignty that are immune from judicial
control. Declaration of war, decisions related to military operations, and seizure of ships by
force in the time of war are examples of these actions. The Egyptian State Council ruled
that inspection of ships in war time falls in the realm of sovereignty acts as it is connected
to military procedures taken by the state for its security.
62
Similarly, it ruled that it has no
jurisdiction over the order by the Minister of Interior to police officers to fight the British
troops which attacked police stations after revoking the 1936 Treaty.
63
Following the same
approach, the State Council ruled that the decree of acquisition of a piece of land, belonging
to the Egyptian territory, by the Army Commander is not considered an act of sovereignty
because it is neither related to war actions nor a defending the territory of the state. As the
challenged decree is issued in regard to a regular administration of the Egyptian armed
forces, it is considered an administrative act that is subject to the review of administrative
courts.
64
3) Acts related to safety and internal security of the state:
The third group of actions considered as acts of sovereignty are those related to safety and
internal security of the state. Declaration of martial law and declaration of the “emergency
60
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 78330, session of 26 Oct. 2019,
year 69 (Egypt).
61
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 17701, session of 26 Oct. 2019,
year 69 (Egypt).
62
MOHAMMED R..ABDELWAHAB, Supra note 56 at 247.
63
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 13, session of 19 Jan. 1956, year
7 (Egypt).
64
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1942, session of 25 Dec.
1982, year 27 (Egypt).
state” are one of the most evident examples of these actions. Nevertheless, as this group of
actions are more directly related to protection of individual rights and freedoms, courts
have attempted to limit the scope of sovereignty acts related to internal security of the state.
The Egyptian State Council ruled that the presidential decree of declaration of the
“emergency state “is immune form judicial control for being an act of sovereignty as it is
taken by the executive as a government authority for internal security of the state. However,
the decisions and measures taken by the executive to implementation of the state of
emergency are not considered acts of sovereignty and shall be subject to review of
administrative courts to determine its compliance with law.
65
These measures include
detention, seizure and confiscation of property, and revoking the license of newspapers.
66
4) Acts related to the relationship between executive and legislative authorities:
Actions of the executives in connection with the legislative authority, especially measures
and decisions prescribed by the constitution and election statutes are considered acts of
sovereignty. They comprise the decisions calling for holding or adjourning parliamentary
elections as well as dissolution of the parliament. Draft laws submitted by the executive to
the legislature in addition to the promulgation of law are also beyond judicial review.
The State Council ruled that the presidential decision calling for holding the parliamentary
elections is an act of sovereignty that falls outside judicial control.
67
It also held that the
presidential decision calling for referendum on constitutional amendments is an act of
sovereignty.
68
65
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1438, session of 6 Mar.
1983, year 31 (Egypt).
66
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 3123, session of 22 Dec. 1981,
year 35 (Egypt)
67
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1939, session of 12 Dec.
1987, year 30 (Egypt).
68
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 26206, session of 23 May. 2005,
year 59 (Egypt)
The previously illustrated list of sovereignty acts, classified and categorized by jurists, has
been constantly embraced by administrative courts for decades. The court of Administrative
Justice (CAJ) ruled in many cases that
Sovereignty acts are those actions taken by the government as a
governing authority, not an administrative one. They include actions
of the government in relationship with the two houses of the
Parliament, foreign affairs with other countries, defending public
security from internal disturbance or an external enemy. The
criterion of sovereignty acts is an objective one contingent upon
the nature of the actions themselves not the incidental circumstances
surrounding them.
69
In my view, I agree with the judicial list criterion of sovereignty acts. However, two points
have to be put into consideration. First, the Egyptian constitutions prohibit exempting any
administrative action or decision from judicial control.
70
As acts of sovereignty are
exercised by the executive, they have to be perceived as an exception of the constitutional
prohibition to exclude administrative acts from judicial control. Therefore, the scope of
sovereignty acts has to be largely narrowed to comprise only the pure political actions that
are not justiciable according to their nature. They are so considered if the judiciary has no
credible tools to legally assess these acts and decide on whether they are in conformity with
the constitutional and legal rules. For instance, governmental decisions of international
recognition of a new state, cutting diplomatic relations with another state, or declaration of
war are considered non-justiciable actions because judiciary does not acquire
comprehensive and reliable knowledge and tools to assess their legality or constitutionality.
Conventional legal grounds of assessment of administrative actions like reasonableness,
legitimacy, necessity, or proportionality would be considered invalid and inappropriate if
utilized by courts in order to consider these actions. Second, the judicial list of sovereignty
69
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 587, session of 26 Sep. 1951,
year 5 (Egypt)
70
See Article 68 of the Egyptian Constitution of 1971 and article 97 of the 2014 constitution.
acts develops through time and varies according to the constitutional framework on one
side and the degree of political freedom on the other side. The more constitutional rights
are guaranteed and genuinely protected, the less acts are perceived to be sovereignty acts.
As previously elaborated, acts of sovereignty are a set of actions performed by the executive
branch that are exempted from judicial review.
71
In the past two decades from 2000 to 2020,
administrative courts have narrowed the doctrine of sovereignty acts, especially regarding
the two categories of 1) acts related to foreign affairs and 2) acts related to the relationship
between the executive and the legislature. Some prominent governmental actions that used
to be considered as sovereignty acts according to the conventional judicial list are subject
to judicial review and perceived as administrative actions. The cases in which
administrative courts narrow the scope of sovereignty acts manifest a form of
judicialization of mega-politics because sovereignty acts are considered one of the
cornerstone prerogatives of the executives and are very often of outright political
appearance. In these cases, although the governmental actions in question obviously
belonged to Egyptian foreign affairs and international relations with other countries, and in
other instances to the relation with the legislative branch, the State Council courts deviated
from the conventional characterization of these actions as sovereignty acts and subjected
them to judicial review. This represents a noticeable redrawing by administrative courts of
the boundaries between the judiciary and the executives through expanding the scope of
judicial review. As I stated earlier, judicialization of mega-politics ought to be assessed on
a case-by-case basis according to the facts of the case, the nature of the actions in question,
and the relevant constitutional and statutory framework.
I examine below four cases manifesting the judicialization of mega-politics through
expansion of judicial review to include some acts formerly perceived as sovereignty acts.
71
As stated earlier, law scholars classified sovereign acts into four main groups: 1) acts related to foreign
affairs and international relations with other countries 2) acts related to war actions 3) acts related to safety
and internal security of the state 4) acts related to the relationship between executive and legislative
authorities.
The four cases are examined in a chronological order. However, it should be noted that
cases no. 1, 2 and 4 are related to narrowing the doctrine of acts of sovereignty pertaining
to some acts related to foreign affairs. Case no. 3 indicates limiting the doctrine of
sovereignty acts in regard to the relationship between the executive and the legislature.
Case 1. Natural Gas Export to Israel (2008):
72
Ibrahim Yousry, a former Egyptian ambassador, filed a lawsuit before the Court of
Administrative Justice (hereinafter referred to as the CAJ) seeking to declare null and void
the Minister of Petroleum and Mineral Resources Decree No.100/2004 and all the affiliated
international agreements and memorandums of understanding. He claimed that Egypt and
Israel signed a memorandum of understanding, by which Egyptian authorities promised to
export natural gas to Israel at an extremely lower price (that does not exceed 1.25 USD per
million British Thermal Units) than its real market value (exceeding 9 USD per million
British Thermal Units). The plaintiff added that according to this memorandum, the
Council of Ministers delegated the Minister of Petroleum and Mineral Resources to
negotiate and conclude natural gas supply contracts with a private company called “East
Mediterranean Gas Company,” which in turn would export natural gas to
Israel.
The CAJ revoked the aforementioned decree of the Minister of Petroleum and Mineral
Resources and all the affiliated acts of the government related to the export of natural gas
to Israel. First, the Court declared that the challenged decrees and actions of exporting
natural gas to Israel by the government are related to the regulation and exploitation of a
significant national resource: natural gas. Accordingly, these actions are not deemed a
matter of international relations, and consequently an act of sovereignty, over which the
court may lack jurisdiction.
72
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 33418, session of 18 Nov. 2008,
year 62 (Egypt).
The Court then established its decision on two main pillars. On the one hand, the challenged
decrees and actions of the government were not initially submitted to parliament for
ratification. This abstention constitutes a gross infringement of the constitutional obligation
imposed over the executive authority whose actions related to the natural resources are
subject to the parliamentary scrutiny by virtue of article 123 of the Egyptian Constitution.
73
On the other hand, the Court stated that the judiciary had always possessed the right to
review the “objective” of the government’s actions to verify that they pursued the public
interest of the people. The court noticed that executive authorities did not publish the
challenged ministerial decree in the Official Gazette, although bound to do. In addition, the
secrecy and simultaneous unjustified velocity that wrapped all the measures and procedures
of the executive authority contradict transparency and hence raise doubts about the real
objective of the government.
The aforementioned judgment was challenged before the Supreme Administrative Court
(hereinafter referred to as the SAC) which upheld it in its substance.
74
However, it split the
subject matter of the lawsuit into two main constituent parts. On the one hand, it stated that
engagement in international and diplomatic relations with Israel is, in itself, an act of
sovereignty that goes beyond the scope of judicial review. On the other hand, the quantity,
prices and other conditions of natural gas export contracts are subject to the scrutiny of
administrative judiciary. The SAC held that the executive authority is obligated to set a
particular mechanism for periodic revision of the conditions of the export transaction
especially those related to the quantities and prices of the natural gas. It is also forbidden
for the executive to agree with the other contracting party on a maximum price for export.
73
Article 123 of the Egyptian Constitution states that “The rules and procedures for granting concessions
relating to the investment in the sources of natural wealth and in public utilities shall be determined by law”
74
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], cases no. 5546, 6013, 7975, session
of 27 Feb. 2010, year 55 (Egypt).
The judicialization of mega-politics is apparently manifested in this lawsuit as on the one
hand, the judiciary narrowed the realm of sovereignty acts, declaring that the only matter
that goes beyond judicial review is the executive authority’s approval to export natural gas
to Israel i.e. the decision to have international commercial relations with Israel. On the
other hand, the State Council deeply engaged in setting the general conditions,
requirements and framework of the Egyptian public policy regarding exploiting one of its
scarce natural resources: natural gas. The judiciary substantially contributed in making a
crucial public policy, which reveals the judicialization of mega-politics in this case.
In my perspective, administrative courts have been always creating their own judicial
techniques in order to immensely expand judicial review of the executive’s actions and
decrees. These instruments facilitate the courts’ intrusion in making public policy decisions
and the judicializing of mega-politics. One of these techniques is what we may term
“dispute fragmentation.” While hearing a case that may be claimed to fall outside the scope
of judicial review, the court divides the subject matter of the dispute into two or more main
parts and declare its competence over the most significant part. This technique is based on
the theory of “detachable decisions,” initially invented by the French State Council and
then adopted by the Egyptian administrative judiciary. The theory addresses any complex
action of the executive that comprises multiplicity of integrated and intertwined decisions,
some of which fall within the ambit of judicial review and the other decisions do not.
In this case, the State Council split the subject matter of the dispute i.e. the complex actions
of the executive, and declare its judicial review over the separable decisions subject to its
scrutiny. The SAC explicitly adopted this technique in its ruling on the natural gas export
to Israel. It ruled that it has no competence to review the sovereignty act of the Egyptian
government to establish international commercial relations with Israel but it has jurisdiction
to review the details and conditions of the concluded contracts. The legal reasoning of the
SAC is praiseworthy because although this case deals with an international agreement
between Egypt and Israel, the SAC delicately differentiated between the “international”
political aspect of the agreement- the decision to establish ordinary relations with Israel on
one side and, on the other side, the “commercial” nature of the agreement- its relevance to
natural gas as a scarce natural resource. Accordingly, the Court considered the former
aspect as an act of sovereignty and the extended its scrutiny to the latter. It considered that
the constitutional obligation of the executives to make the best use of the state’s national
economic resources is what really counts and hence, the degree to which the executives
fulfil this obligation has to be subject to judicial control.
This judgment indicates that the technique of dispute fragmentation is a very fruitful tool
of judicial review. First, it enables the judiciary to extend its scope of review to disputes
whose international element is not the core of the subject-matter. Second, amplification of
the ambit of judicial review to such disputes via this technique serves as an effective
mechanism to reveal information about crucial public policies that lack transparency in all
its aspects.
Case 2. Retaliation for Egyptian victims of 1967 War Crimes (2008):
75
A group of political activists including Wahid Fakhry, the Secretary-General of the
“Socialist Arab Egypt Party”, filed a lawsuit asking the court to issue a verdict obligating
Egyptian authorities, especially the Ministry of Foreign Affairs, to ask the Israeli
government to extradite its citizens accused of war crimes, during 1956 and 1967 wars, to
be adjudicated before the Egyptian Criminal Courts. In addition, the court was asked to
obligate Egyptian government to recourse to the UN organs, especially the Security
Council, to issue a resolution convicting the Israeli perpetrators of war crimes during the
aforementioned wars and establishing a special international criminal tribunal for their
adjudication.
The CAJ accepted the case and ruled that Egyptian government may fully accomplish all
the required actions to guarantee retribution, against Israeli military officers, for war crimes
75
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 7691, session of 4 Mar. 2008,
year 55 (Egypt).
committed against Egyptian civilians and prisoners of wars. The Court assured that both
human rights to life and bodily integrity are embedded in the consecutive Egyptian
constitutions and international agreements. Once these rights are violated, the state shall
provide legal protection for its citizens not only within its municipal judicial system, but
also at the international level. Moreover, the court stated that Israeli troops committed
various forms of war crimes including mass killing of war prisoners, inhumane acts of
torture and murder of Egyptian civilians in Sinai Peninsula. These actions are considered
imprescriptible offences that constitute gross violations of Geneva Conventions.
Accordingly, all branches of the Egyptian government, especially the Ministry of Foreign
Affairs, are obliged to take legal and administrative procedures for determination of the
committed war crimes, their perpetrators, and victims. Then, they have to recourse to the
international community in order to exhibit these crimes as violations of international law
and attain global condemnation. The verdict asserted that Egyptian authorities are legally
bound to enable Egyptian victims of war crimes to sue the Israeli war criminals before
national criminal courts and to pave the way of their adjudications before international
courts. The Court asserted that:
The Egyptian authorities are responsible for citizens’ protection
whether municipally or in case of infringement of their personal
freedoms and bodily integrity rights by an aggressor state. Abstention
from seeking implementation of the Geneva Conventions and other
international agreements to such infringement is considered illegal. In
addition, such abstention hurts the Egyptian public sentiment that
appreciates the prominent role of wartime prisoners as well as the
entire armed forces in performing the sacred obligation of defending
their country. Cooperation among executives and all relevant
institutions to obtain the rights of wartime prisoners nationally and
internationally is legally required.81
The CAJ in this case extensively narrowed the scope of sovereignty acts although the
dispute was genuinely connected to the Egyptian international relations with Israel, the UN
and international tribunals. As previously illustrated, judicial precedents demonstrate that
acts related to foreign affairs with other states and international organizations are inherited
in the judicial list of acts of sovereignty. However, the CAJ adopted a very restrictive
approach of determination of acts of sovereignty related to the State’s foreign affairs. The
Court perceived that the constitutional duty of Egyptian authorities to guarantee the two
human rights to life and bodily integrity of the Egyptian people imposes a constitutional
obligation to take all the required actions to guarantee retribution, against Israeli military
officers, for war crimes committed against Egyptian civilians and prisoners of 1954 and
1967 wars.
Analyzing the legal grounds of this verdict and that of the coming two cases (cases no.3
and 4) clearly indicates that the constitutional framework is one of the main pillars on which
administrative courts expand their jurisdiction over executive actions that was traditionally
perceived as sovereignty acts. Successive Egyptian constitutions has
تاطلس نم هكلمت امب ةيلودلا تايقافتلااو فينج تايقافتا ماكحأ لامعإ نع ةرادلإا ةهج عانتما
81
:cibarA ni sdaer lanigiro ehT اهرابتعاب
ةيصخشلا مهقوقحب ةقلعتملا كلت ةصاخ مهقوقح ىلع ةيبنجأ ةلود نم ءادتعا ثودح لاح وأ لخادلا يف ءاوس ،نينطاوملا ةيامح ىلع ةماوقلا
ىرسلأا ءلاؤه ردقي يذلا ،نييرصملل ماعلا روعشلاب رشابملا هساسم نع لاضف ،ةيعورشملل افلاخم كلذك لاحلاو اهكلسم نوكي ،ةيدسجلاو
مو تاهجلا نم يعدتسي اسدقم امازتلا لثمي يذلا نطولا نع عافدلا يف زرابلا مهرود اهب نيلماعلا نييندملاو ةحلسملا تاوقلا مهع
ايلخادو ايلود مهيوذو ىرسلأا قوقح ءاضتقلا نواعتلا ةلصلا تاذ تاسسؤملاو ةيرادلإا
included robust written provisions on safeguarding basic rights and freedoms in addition to
articles specifically prescribing the jurisdiction and functions of the main state organs.
These two categories of articles have been perceived and employed by administrative
courts as the focal point of extending scope of judicial review. The objective of
strengthening and consolidating the governmental compliance with constitutional
protection of rights enables administrative courts to stand as a vigorous safeguard of these
rights. Based on these constitutional provisions, administrative courts define, on the one
hand, the constitutionally protected ambit for individuals to enjoy and practice their rights
and, on the other hand, the obligations of the executive in order to guarantee these rights.
During this process, the State Council involves in pure crucial political controversies and
hence the judicialization of mega-politics is highly manifested.
In my view, this judgment entails encroachment on the executives’ prerogative of
sovereignty acts. The CAJ excessively interpreted the constitutional obligation of the
executive to protect human rights to life and bodily integrity and turned a blind eye to the
fact that the dispute is genuinely related to foreign affairs although the latter is the core
substance of the dispute not the former. Taking legal actions to guarantee retribution,
against Israeli military officers, for war crimes committed against Egyptian civilians and
prisoners of wars is, first and foremost, contingent upon certain political international
considerations. The executive branch, not the judiciary, is the only authority aware and
capable of weighing these considerations in order to determine which measures ought to
be taken and their proper timing for maximizing effectivity both internationally and
domestically.
Case 3. Revoking presidential decision calling for holding the parliamentary
elections (2013):
76
As previously illustrated, administrative courts case-law consider the presidential decision
calling for holding the parliamentary elections as an act of sovereignty.
77
It falls, according
to the conventional judicial list of sovereignty acts, outside judicial control because it is
related to the relationship between the executive and the legislature. Nevertheless, in 2013
the CAJ struck down the presidential decree of initiating the parliamentary elections and
inviting the voters to cast their votes. The judgment implication was so immense that it
suspended the entire electoral process all over the country. In this case, the State Council
got embroiled in a significant political controversy previously perceived to be immune from
judicial review, and went as far as to judicialize acts at the core of the political process.
The CAJ founded its verdict on the fact that the challenged decree lacks a formal
requirement stipulated by the constitution of 2012, in force at the time of the judgment. The
76
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 28560, session of 6 Mar. 2013,
year 67 (Egypt).
77
See e.g., Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1939, session of
12 Dec. 1987, year 30 (Egypt).
new constitution, after the revolution of 2011, provided that the President must obtain the
approval of the Cabinet before issuance of such decision. The court illustrated that the 2012
Constitutional framework established a mixed system of government (presidential and
parliamentary) on the contrary of the previous constitution of 1971 which embraced a
presidential one. According to the Constitution of 2012, the President became
constitutionally bound, with few exceptions, to possess the approval of the Cabinet before
taking numerous measures as part of his constitutional authority. The presidential decision
calling for holding the parliamentary elections is one of these actions in which the President
shares its authority with the Cabinet.
78
In my perspective, conceiving the outcome of the verdict would falsely lead to think that
the State Council ignores precedents which consider the acts related to the relationship
between the executive and the legislature as sovereignty acts. Nevertheless, this verdict
represents a new approach of administrative courts pertaining to sovereignty acts. This
legal approach claims that the constitutional framework in force is vital in determining
which acts to be considered sovereignty acts. According to this approach, the judiciary
possess jurisdiction over executive actions, although formerly perceived as sovereignty
acts, if the constitution provides for formal or substantive requirements of these actions.
The role of the judiciary is to verify the compliance of the executive to these conditions
whether in the form of procedural stipulation for taking such acts or substantive
requirements pertaining to the subject-matter of the actions.
In my view, this approach is laudable because first, it attempts to narrow the doctrine of
sovereignty acts based on valid constitutional grounds. As a civil-law state, the provisions
of constitution that specifically determines the jurisdiction and functions of the main state
organs, including those on the jurisdiction of the President, must be given imperative
78
It is worth mentioning that the implementation process of this judgment started immediately on 7 March
2013, one day after its issuance. The Higher Committee of Elections issued its decision no.20/2013
declaring the suspension of the parliamentary election procedures all over the state84.
connotation when interpreted. They are not stated in the constitution in vain, Consequently,
when the constitution impose certain constrains on the executive in taking an action, they
must be adhered to. The judiciary is the main organ entitled to assure that constitutional
constraints and limitations are obeyed by the executive. Second, the State Council approach
remarkably boost the rule of law which stipulates that the government as well as individuals
are accountable under the law. The compliance of the executive branch to constitutional
requirements is fundamental to promote accountability of the government to law.
Exempting such actions from judicial review despite the constitutional framework which
stipulates procedural or substantive conditions would enable the executive branch to evade
substantial form of accountability i.e. judicial control.
Case 4. The Egyptian Saudi Maritime Border Demarcation Treaty (2016):
79
The State Council verdict on the Egyptian-Saudi maritime border demarcation treaty,
known as the case of “Tiran” and “Sanafir” islands, is perceived as a historic sentence that
represents the extent to which the State Council has been expanding its jurisdiction in the
realm of Egyptian foreign affairs. On April 10th 2016, Each of Ali Ayoub and Khaled Ali,
two lawyers and political activists, separately filed two lawsuits before the CAJ demanding
annulment of the delimitation of maritime boundaries agreement between Egypt and Saudi
Arabia. Both lawyers claimed that this agreement implied a waiver of the two islands to
Saudi Arabia in violation of article 151 of the Egyptian Constitution of 2014 which
prohibits ceding any part of state territories. They also claimed that the challenged
agreement infringes all previous conventions that considered the two islands as part of the
Egyptian territory. They emphasized that Egypt has always explicitly exhibited its
sovereignty over the two islands for decades through dispersing military troops and police
officers as well as administering the islands via various decrees and executive decisions.
79
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 43866, session of 21 Jun. 2016,
year 70 (Egypt).
After combining the two cases to be settled by one sentence, the CAJ declared null and
void the governmental act of signing the delimitation of maritime boundaries agreement
between Egypt and Saudi Arabia in 2016, which includes ceding of “Tiran” and “Sanafir”
islands to the latter. The Court traced the change in constitutional framework regarding
concluding international agreements in the consecutive constitutions of 1971, 2012 and
2014. Then, it established its ruling on the new constitutional framework provided by the
2014 constitution. It includes explicit prohibition of ceding any part of Egyptian territories
by virtue of article 151 of the Egyptian Constitution of 2014.
80
The Court affirmed that the
constitution defined the scope of the executive branch’s “prohibited jurisdiction” in the
international agreements domain. The constitutional prohibition of executive authority to
cede any part of the territory is absolute and thus cannot be eluded under any circumstances
or justifications. This forbiddance emanates from the territory’s sanctity, which necessitates
legal and judicial protection.
The Court refuted the allegation that the challenged governmental action is an “act of
sovereignty” as it belongs to the international relations domain and thus falls outside the
scope of judicial review. The verdict emphasized that the prerequisite for any international
affairs action to be considered an “act of sovereignty” is compatibility with the Egyptian
constitution. Infringing constitutional provisions entitles the judiciary to revoke any
unconstitutional governmental action or decision. Accordingly, the main basis on which the
court declared its jurisdiction over the dispute, despite being related to an international
agreement with another state, is the constitutional prohibition imposed on the executives to
cede any part of the territory.87
Representatives. Such treaties shall acquire the force of law following their publication in
accordance with the provisions of the Constitution.
Voters must be called for referendum on the treaties related to making peace and
alliance, and those related to the rights of sovereignty. Such treaties shall only be ratified
after the announcement of their approval in the referendum.
80
Article 151 of the Egyptian Constitution of 2014 states that
The President of the Republic shall represent the State in its foreign relations and conclude
treaties and ratify them after the approval of the House of
In all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which
results in ceding any part of state territories.
87 It is important to point out that the Supreme Administrative court upheld the judgment of the Court of
Administrative Justice and refuted the appeal of the Egyptian government in its judgment on the case no.
74236, session of 16 Jan. 2017, year 62 (Egypt). The SAC re-emphasized the same legal grounds of the CAJ
and added additional ones. For further elaboration of the grounds of this verdict, see, Abouelfetouh
ElSammak. To politicize or depoliticize, is that really the question of administrative adjudication?: A study
of the state council judicial interpretation in Egypt. 2019. American University in Cairo, Master's Thesis.
AUC Knowledge Fountain, (He elucidate one of the main grounds of the verdict by stating that:
The court asserted that …. the traditional interpretation of the acts of sovereignty as a
theory should be replaced by a new one, one that reflects a consistent understanding of
the recent constitutional amendments and its effect on the legal system as a whole. The
judgment reasoning asserted on the transcendental value of the people's revolutions of
January 25th and June 30th, that implied new constitutional reforms leading to a new
legal system that changed the preconception of the Separation of Powers concept,
manifested in the great value restored to the people in exercising their right to participate
in the political, social and economic life in Egypt. Henceforward, the legal interpretation
has to respond to this understanding, which is introduced by the recent constitutional
amendment affecting the foundations of the Egyptian legal system.
The Court asserted that Egypt has always manifested its sovereignty over the two islands
and effectively implemented its municipal statutes and executive regulations. Moreover,
Egyptian police troops have always existed on the land of the two islands. The two islands
have been part of “Strategic Areas of Military Significance” as declared by virtue of the
Egyptian Minister of Defense Decree No. 367/1986. The court concluded that:
Undoubtedly, the two islands of “Tiran” and “Sanafir” are Egyptian
lands and part of the Egyptian territory, that lies within the Egyptian
State frontiers. Egypt has always practiced constant sovereignty
over the two islands. They have always been subject to the Egyptian
statutes and regulations. The Egyptian sovereignty over the two
islands is completely attained according to the international
judiciary and jurisprudence criteria. Consequently, ceding these
islands is constitutionally forbidden by virtue of the last paragraph
of article 151 of the constitution. As a result, the governmental act
of signing the delimitation of maritime boundaries agreement
between Egypt and Saudi Arabia in April 2016, which includes
ceding of the two islands to the latter on the allegation that they lie
in the Saudi territorial waters, constitutes a gross violation of the
Egyptian Constitution and thus shall be declared null and void.
Concealment of the unconstitutional waiver of the two islands in the
form of an international agreement for maritime boundaries
delimitation does not render it legitimate.88
In my opinion, the Court of Administrative Justice adopted the same approach as the
previous sentence on the declaration for holding parliamentary elections (case no.3).
Whenever there are constitutional conditions for practicing certain executive competence,
administrative courts possess jurisdiction to review the adherence to these conditions and
the plea of sovereignty acts would not be acceptable. As previously stated, this approach
يربلا ميلقلإا نمض نم ةيرصم ضرأ ريفانص ةريزجو ناريت ةريزج نم لاك نأ هب عوطقملا نم The original reads in Arabic
88
نيناوقلل ناتريزجلا عضختو ،ةرمتسمو ةمئاد ةفصب نيتريزجلا ىلع ةدايسلا رصم تسرام دقو ،ةيرصملا ةلودلا دودح نمض ناعقتو ،رصمل
كحب امازتلا رظحي كلذل اعبتو ،نييلودلا ءاضقلاو هقفلا يف ةرقتسملا ريياعملل اقبط ةققحتم اهيلع رصم ةدايس نأ امك ،ةيرصملا حئاوللاو ةداملا م
(151نيب ةيرحبلا دودحلا ميسرت ةيقافتا ىلع عيقوتلا نم ةيرصملا ةموكحلا لثمم هب ماق ام نوكي مث نمو ،امهنع لزانتلا يلاحلا روتسدلا نم )
ةكلمملاو رصم ليربأ يف ةيدوعسلا ةيبرعلا2016 لخاد ناعقت امهنأ ةجحب ةيدوعسلا ةيبرعلا ةكلملل نيتريزجلا نع رصم لزانت تنمضت يتلاو
ع قافتا فلخ روظحملا لزانتلا اذه رتس ةلواحم نم مغرلاب كلذو ،هلطبت روتسدلل ةميسج ةفلاخم ىلع ىوطنا دق ةيدوعسلا ةيميلقلإا هايملا ىل
.ةيرحبلا دودحلا ميسرت
is commendable because it maximizes the adherence of the executives to constitutional
requirements and consequently promote accountability of the government to law. It should
be emphasized that the main difference between the two judgments is that in the case of
initiating parliamentary elections (case no.3), the constitutional stipulation for issuance the
presidential decree was a “formal” or a “procedural” one: the approval of the cabinet.
Therefore, the judgement reviewed only the compliance with this condition. On the other
hand, in Tiran and Sanafir case, the constitutional requirement for concluding any
international agreement was a “substantive” one: forbiddance of ceding a part of the
territory. Accordingly, the Court had to scrutinize the subject-matter of the case in order to
decide on whether the constitutional requirement was obeyed by the executive branch or
not. The Court traced the historical evidence of practicing the Egyptian territory over the
two islands especially through police and military forces as well as the previous
international agreements that dealt with the situation of the two islands. As the Court found
that the constitutional prohibition was infringed by the challenged agreement, it declared it
null and void based on this constitutional ground. Therefore, the scrutiny of the enormous
pieces of evidence by the court, with the objective of determining whether the two islands
belonged to the Egyptian territory, falls within its judicial competence. Checking the
commitment of the executives to the constitutional forbiddance to cede any part of the
territory lies intrinsically on the judiciary.
81
B) Explicit Judicial Law-making:
Judicialization of mega-politics is apparent when courts explicitly “make” laws concerning
pivotal social, economic or political matters. Explicit judicial law-making constitutes an
intervention of the judiciary into the substantial prerogative of the legislatures i.e. enacting
law. Conventionally, the State Council’s judicial review is limited to applying legal rules,
whether constitutional or statutory, to disputes. Judicial review entitles administrative
courts to the function of interpreting law. Judicialization of mega-politics is often
manifested when courts are not confined to interpreting and applying law. Instead, they
explicitly “create” laws pertaining to core political, social or economic matters. It is well-
known that while practicing judicial review, judges may narrowly or extensively interpret
specific legal rules. In this case, the question that may arise is whether courts interpret or
make law. This is not what this research focus on. In fact, judicialization of mega-politics
is more likely to occur when the court explicitly creates rules without engaging into
interpretation of existing legislative ones. This is why this form of judicialization of politics
may be termed “explicit” judicial law-making as an indication of the outright intervention
into the fundamental prerogatives of the legislature.
81
It should be emphasized that there were two fundamental responses of the legislative authority to the two
judgements of the State Council on the Egyptian-Saudi maritime border demarcation treaty. First, the
legislature (House of Representative) ratified the treaty including the transfer of the two islands to the
sovereignty of Saudi Arabia on June 14th 2017 and totally overlooked the two judgments of the State Council.
Second, On April 18th.2017, the law no. 13/2017 on the appointment of the heads of judicial bodies was
enacted by the Legislature to grant the Egyptian President discretionary power to select the Chief Justice of
each of the four judicial entities, including the State Council. The president has to choose one of the three
nominees of General Assembly. In the case that no candidates or fewer than three candidates were nominated,
the President possesses the right to select the Chief Justice from among the seven eldest deputies89. This law
completely sets aside the obvious criterion of seniority that was constantly adopted in the four judicial bodies
for decades. It is beyond doubt that this statute constitutes a serious encroachment on the judiciary
independence, including that of the State Council judges.
Explicit Judicial law making may occur when there is legal vacuum in regard to a certain
matter. In this case, the State Council plays the role of a legislator and elaborate a detailed
nature, scope and conditions of this matter. In this case, courts do not decide on a particular
dispute, but they create a full elaborated rules to be applied in this case and any similar
cases related to the same subject-matter. In other scenarios, there may be no legal vacuum.
Rather, there are statutory rules applicable to the dispute but administrative courts explicitly
create a specific legal rule and add it to the existing applicable statutory rules. When the
State Council practices explicit judicial law-making in regard to a very crucial matter like
elections, it often entails judicialization of mega-politics as it performs substantial role in
determining who is eligible to run for office and consequently affects the outcome of the
entire electoral process.
It should be emphasized that proper assessment of explicit judicial law-making by
administrative courts, like other forms of judicialization of mega-politics, necessitates
moving beyond the binary perspective of permanently advocating for or arguing against
the involvement of the judiciary into realm of “legislating” or “establishment of legal
rules.” Rather, it should be assessed on a case-by-case basis according to the facts of the
case, the existence of statutory rules applicable to the facts, and the relevant constitutional
framework. Accordingly, in the following part, I analyze three judgments that encompass
explicit judicial law-making in pivotal matters and manifest judicialization of mega-
politics. I evaluate each judgment in order to indicate whether the court trespassed borders
of judicial control and encroached on the jurisdiction of the legislature, or its creation of
new rules fall within the legitimate scope of judicial competence.
Case 5. The Civil Servant’s Right to Strike (2016):
82
82
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 22314, session of 12 Mar.
2016, year 59 (Egypt). See generally similar verdicts such as Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme
Administrative Court], case no. 21992, session of 9 Jan. 2016, year 59 (Egypt) and Al-Mah. kamah al-Id.
ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 27047, session of 17 Jun. 2017, year 61 (Egypt)
A civil servant working for a Court in Ismailia was tried before the Disciplinary Court in
Ismailia
83
because she participated in strike for three days and therefore was subjected to a
disciplinary sanction. The objective of the strike was to raise the employees’ salaries to be
equivalent to their rivals in other departments belonging to the same entity they are working
for i.e. the Ministry of Justice.
The Disciplinary Court in Ismailia revoked the disciplinary sanction establishing its verdict
on the fact that the aforementioned strike did not constitute infringement of laws.
Afterwards, the Administrative Prosecution challenged this judgment asking for upholding
the sanction imposed on the civil servant.
The SAC upheld the verdict of the first instance court. It established its sentence on three
pillars. First, the Egyptian constitution has recognized the right to strike, and considered it
one of the constitutional rights of the Egyptian worker, and mandated the law to regulate
it
84
. The Constitution obviously states that the right to strike is entitled to all employees
whether those working for the government and its authorities i.e. public officials or those
working in the private sector. In addition, the International Covenant on Economic, Social
and Cultural Rights (ICESCR), ratified by the Egyptian authority in 1981, provides for the
right to strike. The constitution grants international conventions the same binding force as
municipal laws if ratified by Egyptian authorities. Therefore, the right to strike must be
perceived as a legitimate right entitled to all employees as an aspect of freedom of
expression.
Second, the Court stated that the strike recognized by the constitution is the peaceful one
to which the employee resorts in order to express legitimate rights and demands. When
employees are on strike, they have to refrain from affecting their work regularity and
83
Disciplinary courts are an integral part of the State Council courts. They are competent with the disciplinary
trials of civil servants once they are indicted for committing disciplinary offences. Their verdicts are
challengeable before the Supreme Administrative Court.
84
Article 15 of the Egyptian Constitution of 2014 states that “Peaceful strike is a right regulated by Law.”
continuity, resorting to violence in any way, and forcing nonparticipant employees to
refrain from work. A non-peaceful strike constitutes violation of laws, for which participant
employee must be held disciplinarily and criminally accountable.
Third, the legislative authority should enact law that regulates the right to practice peaceful
strike, seeking for achieving two parallel objectives: the public interest and the employees’
legitimate rights. The law should organize certain aspects. On the one hand, it has to define
the obligations of the striking employees via determination of the strike’s scope. Employees
have to recourse to strike to claim legitimate rights and demands related to their work. It is
not permissible to go on strike claiming unlawful demands or claims not related to the
employee’s job. Moreover, legislative statutes may determine the prerequisites to be
followed before going on strike such as submission of requests to superior executives,
without getting response, notifying the managing authority of conducting a peaceful strike
early enough before Initiating it.
On the other hand, the law has to define the administrative authority obligations. These
duties include respecting the employees’ right to strike and not to confront this peaceful
strike with violence. In addition, the administration has to gradually discuss the striking
employees’ demands and negotiate with them, within certain time specified according to
the nature of work. Also, it is bound not to arbitrarily leave striking employees without a
response and not to deny them any of their rights and benefits as a punishment for their
resort to peaceful strikes.
The SAC concluded that as long as the legislative authority does not enact the law
regulating the right to peaceful strike, the court will constantly apply the aforementioned
rules, considered as general principles, attempting to achieve balance between the public
interest and the employee’s rights. It assured that
Until this legislation is issued by the legislative authority, what was
previously mentioned falls within the general rules and principles
imposed by common sense, taking into account the two parties to
the relationship and trying to achieve balance between the public
interest of the state, the right of society and the rights and duties of
the employee. Hence, if the worker abides by these general
conditions and principles when exercising his right to peaceful strike
in order to express his legitimate demands, then he notifies the
competent authorities in the way indicated, did not resort to violence
in order to present these demands, and did not affect the progress of
work and its regularity in the public facility or the workplace, he
would have exercised this right within the framework of
constitutional legitimacy and shall be legally protected, and thus
may not be held accountable for his exercise of this legitimate
right.93
دعاوقلا نمض جردني هركذ قبس ام نإف ،ةيعيرشتلا ةطلسلا نع عيرشتلا اذه رودص نيحلو
93
:cibarA ni sdaer lanigiro ehT لوصلأاو
لماعلا قوقحو ،عمتجملا قحو ةلودلل ةماعلا ةحلصملا نيب ةنزاوملاو ةقلاعلا يفرط ةاعارم ىلع مئاقلا ميلسلا قطنملا اهضرفي يتلا ةماعلا
عورشملا هبلاطم نع ريبعتلل يملسلا بارضلإا يف هقح هتسرامم دنع ةماعلا لوصلأاو طباوضلا هذهب لماعلا مزتلا اذإف مث نمو ،هتابجاوو ،ة
هماظتناو لمعلا ريس يف رثؤي ملو ،بلاطملا هذه ضرع ليبس يف فنعلا ىلإ أجلي ملو ،هيلإ راشملا وحنلا ىلع ةصتخملا تاهجلا راطخإب ماقف
وأ ماعلا قفرملاب نمو ،ةيامحلاب اريدج نوكيو ،ةيروتسدلا ةيعرشلا نم راطإ يف قحلا اذه سرام دق نوكي هنإف ،لمعلا ناكمب
عورشملا قحلا اذهل هتسرامم نع ايبيدأت هتلءاسم زوجت لا مث.
This case manifests the judicialization of mega-politics in the form of explicit judicial law-
making concerning pivotal matters. The Court obviously illustrated that it creates and
applies its own set of rules that regulate the civil servants right to strike due to abstention
of the legislative authority to enact statutory rules on this constitutional right. The Court
defined the meaning, objective and conditions of the right to strike. It elaborated the duties
and obligations of the two parties to the relationship: the striking civil servants and the
public authorities they are working for.
Verdicts on the civil servant right to strike indicate that administrative courts have been
creating their own judicial techniques in order to immensely expand judicial review of the
executive’s actions and decrees. These instruments facilitate the courts’ intrusion into the
prerogatives of the legislature in crucial controversies and judicialization of megapolitics.
One of these tools is filling the legislative vacuum. Conventionally, when administrative
judges encounter a legislative lacuna regarding the subject-matter of the dispute, their
judicial review is restricted to deciding on the actual facts of the case. However, when the
legislative authority refrains from enacting statutes on thorny matters, like in the field of
individual rights that may raise immense political controversies and contentions, the State
Council courts make the best use of the resulting legal vacuum in order to get deeply
involved in making public policy decisions and judicializing megapolitics. Courts provide
their own perception of the subject matter of the dispute in a comprehensive, detailed and
probably itemized way, very similar to what the legislative authority may do. Judges, due
to the legal vacuum, are not restricted to concentrate their decisions on the precise substance
of the dispute in question. They tend to express their exhaustive comprehension of the entire
subject matter of the individual right. The rulings on the civil servant right to strike
encompassed extensively detailed conditions and procedures in a very similar way a
complete legislation on regulation of this right would appear.
This judgment also indicates that administrative judges rely on the tools provided by the
Egyptian constitutional framework to judicialize mega-politics, especially in the realm of
individual rights and freedoms and the demarcation of boundaries between the judiciary
and the legislature. The constitutional framework provides two main tools for the State
Council to engage in core social or political controversies: the written provisions on public
rights and freedoms and the “implantation” process of international conventions and
multilateral treaties in the municipal legal system. The verdicts on the right to strike reveal
that the court grounded judgments on the constitutional provision that states the right to
strike. Besides, they relied on the International Covenant on Economic, Social and Cultural
Rights (ICESCR), which provides for the right to strike.
The State Council courts rely on international conventions and charters ratified by the
Egyptian authorities, especially those on human rights, to review the adherence of the
executives to public rights and freedoms. Egyptian consecutive constitutions provide that
the provisions of international treaties have the same legal force as national statutory laws
once they are signed by the President and ratified by the legislative authority, and hence are
applicable to national disputes.
85
Administrative courts use the provisions of international
85
Article 151 of the Egyptian Constitution of 2014 states that “The President of the Republic shall represent
the State in its foreign relations and conclude treaties and ratify them after the approval of the House of
conventions as intrinsic tools to address rights disputes and set the boundaries within which,
on the one hand. individuals enjoy and practice their rights and, on the other hand, the
executive may act without infringing these rights.
In my view, when administrative courts encounter legislative lacuna concerning a crucial
matter, especially individual rights, and create their own set of rules that regulate that
matter, they are not considered as trespassing their jurisdiction for two reasons. First,
judicial conduct of explicit law-making in this case is no more than an attempt to redress
the legislative vacuum resulting from abstention of the legislative authority to enact
statutory rules regulating the contentious matter. The intrusion of the judiciary into the
prerogatives of legislature is temporary, in the sense that it is valid and applicable until the
legislative authority practices its main jurisdiction and enact statutory rules regulating the
same matter. Courts do not permanently substitute their own perspectives instead of that of
the legislature. Accordingly, their conduct may not be perceived as encroachment on the
legislature. Second, the objective of the judiciary in creating its own set of rules is achieving
balance between the public interest and the individual rights. The abstention of courts to
create rules for this purpose is likely to result in the violation of the executive of individual
rights as it is often more powerful. The courts involvement is an effective instrument to
rein in the executive power from infringing basic rights and freedoms.
Case 6. Good Repute of Candidates for the Parliament (2015):
86
Samir Sabry, a lawyer, filed a lawsuit before the Court of Administrative Justice asking for
rejection of Samia Ahmed Attia (known as Sama El-Masry)’s application for the House of
Representatives elections of 2015. He claimed that the Higher Committee for
Parliamentary Elections accepted her registration application in violation of elections laws
Representatives. Such treaties shall acquire the force of law following their publication in accordance with
the provisions of the Constitution.”
86
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 105519, session of 7 Oct.
2015, year 61 (Egypt).
as she does not fulfil the requirement of “good repute.” The plaintiff also alleged that she
is known for dancing and singing in night clubs in addition to insulting her constituency
people.
The CAJ dismissed the case, stating that the defendant is not proved to lack any conditions
of running for office as she has not been convicted by virtue of any final criminal
judgements. News and online reports tarnishing any citizen’s reputation are not considered
definitive evidence of lacking the conditions required to stand for elections.
87
The claimant challenged the court sentence before the SAC. He reassured his allegations
that the defendant is not of “a good repute.” He claimed that the court of first instance
overlooked all the submitted documents that prove his claims.
The Supreme Administrative Court (SAC) revoked the first instance court judgment and
rejected the defendant’s registration application for the House of Representatives elections
of 2015. The judgment stated that the right to stand for elections is a constitutional right
that lies in the core of a democratic process. However, the burdens and responsibilities of
any member of the House of Representatives necessitate the possession of a reasonable
degree of trust, credibility and integrity. “Good repute” is possessing valuable traits and
morals that entitle the candidate plausible degree of credibility in community. The Court
found that the defendant in numerous interviews had lacked good manners and shyness and
thus lack the necessitated “good repute”.
Moreover, the Court affirmed that although “good repute” is not stipulated in the elections
statutes as a requirement for running for office, it is considered a general condition for
holding any representative or executive post:
The provisions of both the Political Rights and House of
Representative Acts do not stipulate “good repute” as a condition of
running for office. Nevertheless, it is considered a general
87
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 78410, session of 19 Sep. 2015,
year 69 (Egypt).
requirement for holding any representative or executive post. Any
representative of the people, in order to be eligible for such
prestigious responsibility of the executive branch supervision, is
required to be of “good repute” beyond any suspicions and also not
to be famous for misbehavior. Accordingly, there is no need for the
stipulation of “good repute” in a legislative provision.97
This verdict represents judicialization of mega-politics by administrative courts in the field
of elections. It involves intrusion of the judiciary into the realm of law-making jurisdiction
of the legislative authority. As previously illustrated, the judiciary intrusion is apparent in
this case because the Court does not interpret a particular legal rule trying to advocate that
its interpretation is valid. Rather, the Court evidently states that it “creates”
طرتشت مل باونلا سلجم نوناقو , ةيسايسلا قوقحلا ةرشابم نوناق صوصن نم لك تناك نئلو
97
:cibarA ni sdaer lanigiro ehT ةريسلا
تعاب ً ايباين وأ ًايذيفنت ًاعقوم دلقتي نم لك ىف ابلطتم اماع اطرش دعي هنأ لاإ , حيشرتلل ةمزلالا طورشلا نمض لاصخلا بيطو ةديمحلا نم هراب
ًاعجارمو ةموكحلا ءادلأ ًابقارم بعشلا نع ًلاثمم ىباينلا لمعلل ىدصتي نم ىلوأ باب نمو , صخش لك ىف ةضرتفملا ةماعلا طورشلا اهتافرصتل
صخشلا اذه نوكي نأ بجي ذإ ,– ةملأا ليثمتل ًلاهأ نوكي ىتح– لاأو تاهبشلاو ءوسلا نطوم نع ديعبو ةنسحلا ةعمسلا نم جايسب ًاطاحم
دق نوكي .عقوملا اذه لثم ىلوتل طرشلا كلذ ررقي حيرص صن ىلإ ةجاح نود , هتافرصتو هكولس ىف ىدرتلا وأ ءوسلا ةلاق هنع رهتشا
an additional condition for running for office other than those stipulated by the relevant
statutory rules. Given the significance of the dispute as it is related to a crucial political
question and shall have impacts on determination of the outcome of the entire electoral
process, judicialization of pure politics is manifested in this sentence.
In my view, this verdict is criticized for trespassing the boundaries of judicial review by the
SAC and encroachment on the legislature authority. The judgment did not entail valid legal
grounds on which the court established its jurisdiction to “add” a condition of running for
parliamentary elections and explicitly perform the role of the legislator. It stated that the
condition of “good repute” is a general requirement for holding any representative or
executive post without indicating the source from which the Court derived this condition.
Besides, the court ignored the State Council precedents which require conviction of a crime
by virtue of criminal judgements to rule that the person lacks the required “good repute.”
Surprisingly, the Court found that the challenged applicant does not fulfill the requirement
of good repute based on some of her statements in TV interviews. The Court did not
elucidate the validity of the foundations on which it overlooked administrative case law
and adopted a completely different approach regarding the evidence on lacking a “good
repute”
Case 7. Physical and Mental Clearance of Candidates for the Parliament (2015):
88
A lawsuit was filed asking the Court of Administrative Justice (CAJ) to issue a decision
ordering the Higher Committee for Parliamentary Elections to require a medical certificate
proving that the applicant is alcohol-and drug-free and not suffering from physical or
mental illness which adversely affect his performance as a member of the Parliament. It
was claimed that the constitution and statutes have always recognized the significance of
the representative post which presupposes the candidate eligibility to efficiently perform
its tasks. In addition, although both conditions of medical clearance and being alcohol-and
drug-free are not stipulated in the House of Representatives Act as requirements for
applicant registration, they are necessitated for holding any position in the executive and
judicial branches.
The CAJ accepted the case. As for the physical and mental clearance condition, the
judgment adopted a deductive analogy methodology and was established on two main
pillars. On the one hand, the Exercise of Political Rights Act stipulates that voters with
mental or psychological illness who are held in psychiatric centers are temporarily deprived
of their right to vote. This condition of mental and psychological clearance applies a fortiori
to parliamentary applicants whose constitutional duties, after being a
parliament member, are extremely harsher than a voter. Moreover, the House of
Representatives Act requires the disabled applicants to submit a medical certificate proving
that the current disability may not hinder capacity to practice political rights. Stipulation of
physical fitness should be extended to all the applicants not only the handicapped. The
88
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 20868, session of 20 Jan. 2015,
year 69 (Egypt).
Court assured a general statement that the condition of physical, mental and psychological
fitness is required for holding any position or job:
Based on common sense, whoever applies to occupy a specific
position or job, especially public service, or is selected for that, must
fulfill the condition of physical, mental and psychological fitness
that enables him to perform the duties of this position or job or do
that work, as the case may be, whether the law stipulates for this
condition or is silent on that. This condition is required by public
principles without the need for a legislative provision to state it.99
On the other hand, as for the alcohol-and drug-free condition, the court assured that
although the condition of “good repute” is not stipulated in elections statutes as a
requirement for running for office, it is considered a general condition for holding any
representative post. Alcohol and drug abuse derogates “good repute” and diminishes the
وأ ةنيعم ةفيظو وأ بصنم دلقتل بلطب مدقتي نم نأ ، روملأا عئابط هيلمت ام ىلع ًلاوزن ررقملا نم :cibarA ni sdaer lanigiro ehT
99
لاو ةيندبلا ةقايللا طرشل ًايفوتسم نوكي نأ بجي ، كلذل رايتخلاا هيلع عقي وأ ، ماعلا لمعلا ةصاخ ةفصبو ، لامعلأا نم لمعب علاطضلاا ةينهذ
اذه بلطت ىلع نوناقلا صن ءاوس ، لاوحلأا بسحب ، لمعلا كلذب مايقلا وأ ةفيظولا وأ بصنملا اذه تابجاو ءادأ نم هنكمت ىتلا ةيسفنلاو
،هررقي صاخ صن ىلإ ةجاح ريغب ةماعلا لوصلأا اهبجوت ىتلا طورشلا نم دُعي طرشلا اذه نأ ذإ ، كلذل نع تكس مأ طرشلا
applicant’s credibility. It also infringes his/her constitutional oath to “respect the Law.”
89
Egyptian laws and regulations have always criminalized drug possession, abuse and
trafficking.
In my view, the same aspects of criticism of the previous verdict on “good repute” condition
(case no. 6) may be directed to this judgment. Although the statutory law on parliamentary
elections provides for detailed conditions for running for office, the Court “created” two
additional conditions on its own initiative. The judgment lacks robust legal grounds for
trespassing the boundaries of judicial review by the Court. Given the importance of the
representative post, it is not sufficient for establishing extra requirements for running for
office to state that the condition of physical, mental and psychological fitness is based on
“common sense” or “public principles” as mentioned in the verdict. The Court obviously
89
Article 104 of the Egyptian Constitution state that “As a condition for undertaking his/her duties, a House
of Representatives member shall take the following oath: “I swear by The Almighty God to loyally uphold
the republican system, respect the Constitution and the Law, fully uphold the interests of the People, and to
safeguard the independence of the nation and the integrity and safety of.”
replaces itself instead of the legislator and imposes its own perspectives in a core political
matter that tremendously affects the results of the electoral process as it determines who is
eligible to apply to run for office.
It is noteworthy in this regard to indicate one of the self-made judicial technique used by
administrative courts to excessively expand their scope of judicial review, which is review
of the executive’s omission, legally termed as “passive administrative decision.” Article 10
of the State Council Act provides for its judicial review of the executive’s omission to take
an action required by virtue of law. Such omission is termed in the legal terminology of
administrative courts’ rulings a “passive administrative decision.” This provision is
considered necessary for guaranteeing a comprehensive scrutiny of the executive in both
cases of taking and refraining from taking legally required actions. Administrative courts
have excessively been engaging in making public policies and creating legal rules on the
basis of review of passive administrative decisions even when there is no explicit legal rule
requiring the executive to take a certain action. In other words, what is problematic is the
source of obligation by virtue of which the court determines whether the executive is
obligated to act in a certain way or adopt a certain public policy. The case is probably simple
if the source of the executive’s obligation to adopt a certain policy is an evident legislative
rule. Nevertheless, it becomes intrinsic when there is no such a provision. When the Court
explicitly creates a legal rule, it often states in its ruling that the executive’s omission to
adhere to it constitutes an illegitimate “passive decision” and hence the court orders it to
comply with this rule stipulated by virtue of “law.” The verdict on physical and mental
clearance of candidates for the Parliament presents a clear example of excessive use by
administrative courts of the review of “passive administrative decision” as the Court
ordered the Higher Committee for Parliamentary Elections to require a medical certificate
proving that the applicant is alcohol-and drug-free and not suffering from physical or
mental illness, stating that these two conditions are necessitated by “law,” although there
was no legal rule in this regard.
C) adoption/abolition of a substantial public policy:
A third form of judicialization of mega-politics is apparent when administrative courts
decide on making, suspension or abolition of a public policy related to substantial social,
economic, or political questions. A confluence of factors and institutions take part in the
process of public policy making. It is a very complicated process through which various
political actors influence each other. Conventionally, executive and legislature, as
representative institutions, are entitled to making public policies which have to be
formulated in consistency with the existing constitutional framework and legal provisions.
The administrative apparatus of the state substantially contributes to implementation of
public policies. The role of administrative courts is to review the actions of the executive
during the implementation process of these policies and properly apply the law pertaining
to them. While doing so, they render judgments that provide suggestions for effective
implementation of these policies and achievement of their objectives. This is more likely
to occur in judgments that highlight the defects and shortcomings of a particular public
policy after it is actually put into force.
At times, the State Council renders judgments that make or substantially contribute to
making a public policy for achieving a specific purpose. Similarly, its judgments suspend
or completely revoke a public policy concerning crucial social. economic or political
matters. In these cases, the locus of political activity is transferred to courtrooms. The
authority of policy making, formerly perceived to be entitled to politicians, is relocated
from executives and legislature to the judiciary. The judicialization of mega-politics is
accordingly manifested when administrative courts make or abolish a pivotal public policy
rather than sticking to their conventional role of making sure that public policies and
relevant legal provisions are properly applied by the agencies and organs of the
administrative apparatus.
It should be pointed out that, in legal terms, when administrative courts decide on making,
suspension or abolition of a public policy, it would be misleading to allege that they
constantly surpass their limits of jurisdiction. Although in these cases, the authority of
public policy-making seems to be transferred to the judiciary, assessment of this form of
judicialization of mega-politics, in regard to excessive expansion of jurisdiction, should
move beyond the binary model of evaluation: either involves encroachment of the State
Council on the jurisdiction of other main organs of the state or lies within administrative
judiciary’s scope of competence. Like the previous two forms of judicialization of mega-
politics, this form should be assessed on a case-by-case basis according to the facts of the
case, the nature and legal characteristics of the public policy in question, and the relevant
constitutional and regulatory framework. I depict below three cases manifesting the
occurrence of judicialization of mega-politics regarding fundamental social and economic
public policies. In each case, I briefly illustrate the facts and grounds of the judgement.
Then, I analyze the verdict to indicate whether it constitutes an excessive expansion of
administrative judiciary’s jurisdiction or it falls within the scope of judicial review.
Case 8. Minimum Wage for workers (2010):
90
Nagi Rashad, a worker at the South Cairo Milling Company, filed a lawsuit before the CAJ
asking for the establishment of a minimum wage for workers in the private sector. He
claimed that all private sector employees are suffering from very low wages that are not
proportionate to the constant prices increase. The abstention of the government to
determine a minimum wage violates the constitutional rights of employees.
The CAJ accepted the case and established its verdict on two pillars. First, the constitutional
provisions that recognize and protect certain rights cannot be considered non-binding
guidelines. Instead, they are legally obligatory provisions. The Egyptian constitution has
recognized the value of work and considered it simultaneously as a right and a duty. It has
also stipulated for the workers’ rights, inter alia, to ensure a fair
90
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 21606, session of 30 Mar. 2010,
year 63 (Egypt).
remuneration for their work, guarantee a minimum wage and linking the wage to
productivity.
91
Accordingly, these provisions have to been put into force through the
adoption and implementation of actual policies and programs.
Second, the Court affirmed that the government is bound to play an active and functioning
role for a minimum wage determination. Hence, it is not legally permissible to leave the
determination of workers’ wages to the employers who take advantage of the workers’ need
to work and force them to receive unfair wages, that are not commensurate neither with
their work nor the increase in living expenses. The Court indicated that a fair wage for the
worker, regardless of the financial determination of its exact value, has to guarantee a
dignified life for the worker and his family. The Court concluded that the minimum wage
establishment is a preliminary and substantial step to achieve a fair wage for workers
because they are the weak party in the work relationship and hence their protection is
obligatory.
This judgment manifests the judicialization of mega-politics in the form of obligating the
executives to embrace a certain public policy and take the required procedures for its actual
implementation. It highlights the involvement of administrative judiciary in a substantial
social predicament related to social justice and fair distribution of wealth. Conventionally,
the decision to establish a substantial public policy like fixing a minimum wage for workers
is entitled to the legislature and executives in conformity with the existing constitutional
framework. In this case, the State Council moved beyond its traditional role of reviewing
the implementation of a given public policy by the administrative machinery and ordered
the executives to establish a minimum wage for workers in the private sector.
91
Article 23 of the Egyptian Constitution of 1971, that was in force at the time of the Verdict, states that “The
national economy shall be organized in accordance with a comprehensive development plan which ensures
the growth of the national income, fair distribution, higher living standards, elimination of unemployment,
the increase of job opportunities, the linking of wages to productivity and the determination of minimum and
maximum wages in a manner which guarantees the reduction of disparities between incomes.”
In my view, this judgment is criticized because it represents trespassing of the frontiers of
judicial review by administrative courts and excessive utilization of the tool of “passive
administrative decision.” As formerly elaborated, the State Council’s judicial review
includes the executive’s omission to take an action required by virtue of law. When the
executives refrain from taking a specific action although there is a constitutional or
statutory rule that obliges them to do so, administrative courts are entitled to revoke such
omission (which constitutes the passive administrative decision) by issuing a judgment
ordering the executives to perform its obligation. In the case of workers’ minimum wage,
the Court established its judgment mainly on the re-interpretation of the binding force of
the constitutional provisions on the objectives of the national economy plan. Article 23 of
the Egyptian Constitution of 1971, that was in force at the time of the verdict, provides for
the general objectives of the national economy plan which are the growth of the national
income, fair distribution, higher living standards, elimination of unemployment, the
increase of job opportunities, the linking of wages to productivity and the determination of
minimum and maximum wages in a manner which guarantees the reduction of disparities
between incomes. In my perspective, these objectives are nothing but general guidelines
for both the legislature and executives to put into consideration while formulating and
implementing the national economy development plan. The Court misinterpreted the
constitutional provision when it conferred these objectives a binding force, alleging that
the objective of establishment of a minimum wage for workers is an obligatory one which
the executive branch is constitutionally bound to fulfil. Accordingly, the Court “invented”
a source of obligation, derived from the constitutional guidelines, to order the executives
to establish a minimum wage for workers. This is considered an excessive expansion of
judicial review because the judgment lacks a valid constitutional and legal ground to
obligate the executive to embrace the major public policy of workers’ minimum wage.
It should be pointed out that the previous aspect of criticism is similar to what was directed
to the judgment on the physical and mental clearance of candidates for the Parliament (case
no.7) in which the court ordered the Higher Committee for Parliamentary Elections to
require a medical certificate proving that the applicant is alcohol-and drug-free and not
suffering from physical or mental illness, while stating that these two conditions are
necessitated by “law.” Although the conditions of physical, mental and psychological
fitness are not stipulated by the statutory rules on the parliamentary elections, the court
“invented” the legal source of these conditions by stating that they are stipulated based on
“common sense” or “public principles” as I mentioned earlier.
Case 9. Healthcare Privatization (2008):
92
Starting from late 1990s, the Egyptian government initiated a privatization process as a
means to enhance the efficiency of the economy that encountered massive financial and
economic predicaments. This process extended to numerous sectors of the state. As for the
healthcare sector, the Court of Administrative Judiciary (CAJ) annulled the entire
privatization process of the National Authority of Health Insurance. The Court asserted that
providing health insurance service is a constitutional obligation on the state in order to
preserve and promote the individual rights to life and health. In compliance with the
Constitution, the legislator has entrusted the National Authority for Health Insurance with
two main functions, financing and providing the healthcare service, Accordingly, it is not
permissible for this authority to refrain from carrying out any of these two functions or to
transfer it to any other entity. These two functions are constituent components of its social
duty assigned by the legislator in compliance with the provisions of the Constitution.
The CAJ also declined the justifications of the privatization process that alleged its
necessity for the healthcare sector development and overcoming revenues insufficiency. It
affirmed that privatization process would undermine the social function of the state to
ensure health and safety of individuals as it grants the entire control over healthcare service
to private sector whose ultimate objective is maximizing profits regardless of any social or
collective considerations.
92
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], cases no. 21550, 21665, 2212, 22752,
25857, session of 4 Sep. 2008, year 61 (Egypt).
This judgment highlights the judicialization of mega-politics in the form of total
abolishment of a crucial public policy adopted by the executives. The court got embroiled
in healthcare privatization process as an intrinsic macro-economic public policy. It should
be noted that the Court did not scrutinize the detailed implementation of this public policy
by the administrative apparatus of the state. Instead, it engaged with the legality of the
principal option of the executives to adopt the privatization policy in this prominent sector.
The decision to make or abolish fundamental public policies is no longer exclusively
entitled to the legislature and the executives. This judgment indicates that the judiciary
involves in determining the validity and justifiability of a public policy that has major
consequences on the entire society, and accordingly judicializes mega-politics.
In my view, this judgment did not involve an excessive expansion of the State Council’s
judicial review because it was founded on valid legal grounds that proved the infringement
of the constitution by the healthcare privatization policy. The Court did not claim that it
provided their own preferred version of public policy in relation to healthcare system
instead of the privatization policy embraced by the executives. Rather, the court indicated
that the privatization policy is not in conformity with the constitutional and statutory
framework relevant to the healthcare system and therefore may be revoked. Therefore, in
this case, administrative judiciary did not trespass limits of judicial review although it
involved into the public policy-making process, conventionally belonging to the legislature
and/or executives. The Court declared the grounds on which the healthcare privatization
policy contradicted with the constitutional social objective of providing the healthcare to
all beneficiaries and violated the basic rules of the social and healthcare insurance
stipulated by the constitution, multiple social insurance legislations, and international
conventions.
Case 10. Omar Effendi Sale Contract (Privatization of Public Sector Companies)
(2011):
93
On December 21st 2010, nearly a month before the Egyptian Revolution of 2011, Hamdi
El-Fakharani brought a lawsuit before the CAJ asking for declaring null and void the
administrative contract concluded between the Ministry of Investment (represented as The
Holding Company for Construction and Development) and the “Anwal Trading
Company”
94
for the selling of “Omar Efendi Company” at the total price of 590 million
Egyptian Pounds. The plaintiff argued that the determined price is much lower than the
market value of the sold company which exceeds 2.5 billion Egyptian Pounds. Also, the
contract was not supervised by the competent Department of Legal Advice in the State
Council in violation of law. In addition, the purchasing company did not comply with the
contract provisions as it laid off a large number of workers that exceeds the agreed number
in the contract.
On May 7th 2011, the CAJ accepted the case and nullified the contract as it encompassed
extremely gross violations of laws and regulations related to the privatization of public
assets, that amount to constitute serious squandering of public money. These infringements
entailed selling the shares of Omar Effendi Company at a price that is completely
disproportionate to the rights and privileges obtained by the purchaser. In addition, the latter
had been delivered certain movables free of charge and allowed to sell assets of historical
and cultural characters that are legally prohibited be disposed of. The Court also declared
that the purchasing foreign investor had been enabled to sell the company's assets at the
market value despite being evaluated in the nullified contract on other bases that resulted
in lesser values.
95
Besides, the purchaser was enabled to evade taxes.
93
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 11492, session of 7 May. 2011,
year 65 (Egypt).
94
This company is completely owned by a Saudi investor called Mr. Gameel Abdul Rahman El-Kenbeet.
95
The court declared that the Omar Efendi Company’s assets were evaluated on the basis of discounted cash
flows and hence were extremely less than their market value. In addition, the court stated that the process of
these assets evaluation has entailed eleven aspects of gross violation of laws and regulations related to the
organization of privatization as illustrated in the verdict in detail. 107 :cibarA ni sdaer lanigiro ehT ةمكحملا نإ
The CAJ concluded its verdict with declaring that its findings reveal malicious squander of
public property which unprecedentedly took place under the leadership of many ministries.
The Court described this as “the largest sabotage operations of the Egyptian economy”,
which constitute crimes, if proven after investigations, as well as administrative corruption
that requires accountability. The Court stated that:
The court considers its judicial ruling as a notification to all
investigative bodies in the state: to the Public Prosecution, the Public
Funds Prosecution, the Illicit Gain Administration, and the
Administrative Prosecution, so that each entity carries out its duties
as required by law to protect the country from the evil of
corruption.107
The State Council, in other cases, also nullified a great deal of privatization contracts that
included sale of public sector companies, owned by the state, to foreign investors such as
the sale contracts of Shebin El-Kom Textile Company, the Tanta Company for Linen and
Derivatives, the Steam Boilers Company and the Nile Cotton Ginning Company.
96
Cases of nullifying the sale contracts of major public sector companies, including Omer
Effendi, demonstrate the judicialization of mega-politics in the form of abolishment, or at
least substantial suspension, of a public policy in the domain of macro-economic planning.
Unlike the judgment on the healthcare privatization policy (case no.9), these verdicts on
privatization of public sector companies did not revoke the principal decision of the
executive branch to adopt the public policy of privatization. In almost all these cases, the
court affirmed that the privatization of public sector companies, in itself, aims that
improving economic efficiency by relying on market mechanisms and competition,
ةباينو ،ةماعلا ةباينلل ،ةلودلاب قيقحتلا تاهج لكل ًاغلاب اذه يئاضقلا اهمكح ربتعت ةباينلاو ،عورشملا ريغ بسكلا ةرادإو ،ةماعلا لاوملأا
رش دلابلا يقي امو نوناقلا اهيلع هبجوأ ام رملأا اذه لايح ةهج لك ذختتل ،ةيرادلإا
داسفلا.
96
See generally Justice HAMDI YASIN OKASH, Dur magles al-dawla fi kash al-khaskhasa al-fasida w mukhatatat
bai’ misr (THE ROLE OF STATE COUNCIL IN REVEALING CORRUPTION IN PRIVATIZATION PROCESS AND PLANS
FOR EGYPT VENDING. (Arabic) 2014; Omar el Menshawy, Egyptian Public Law Judge: Reviewing Public
Economic Policies from Nationalization to Privatization. 2021. American University in
Cairo, Master's Thesis. AUC Knowledge Fountain.
alleviating financial burdens on countries that suffer from large losses in public sector
companies, and expanding the size of the private sector.
97
However, the court reviewed all
the elements, decisions, conditions and implementation details of the companies’ sale
contracts and, in all cases, eventually declared these contracts null and void for violation
of law. It is undeniable that every judgment in this regard may not be manifest, in itself,
judicialization of mega-politics. Nevertheless, the fact that all the sale contracts of public
sector companies were nullified by the State Council signifies the total suspension of this
major public policy by administrative judiciary, which reflects a form of judicialization of
mega-politics.
It should be emphasized that the scrutiny of the sale contracts of public sector companies
falls within the scope of the State Council’s Judicial review. Article 10 of law no.47/1972
on the State Council provides for the competence of administrative courts to review all
administrative contracts. Sale contracts of public sector companies, owned by the State, to
private investors, are considered administrative contracts which the State Council possess
jurisdiction to review. Accordingly, these judgments do not entail excessive expansion of
jurisdiction of administrative courts. They represented a legitimate practice of judicial
review by the State Council, but they eventually led to a total suspension of the privatization
process as the court revealed numerous gross violations of laws and regulations that
amounted to massive corruption by the executive authority while concluding and enforcing
the sale contracts and consequently nullified them all.
A judicial technique which facilitate judicialization of mega-politics, in its three forms, is
the expansion of standing requirement before administrative courts i.e. the concept of
“litigant’s interest.” For the lawsuit to be admitted by administrative courts, it is legally
stipulated that the plaintiff possesses an “interest” in the litigation. This “interest” condition
is fulfilled when the plaintiff’s factual or legal status is directly affected by the challenged
97
In Omer Effendi Case, the Court stated that “Privatization in itself is not an absolute evil that must be
resisted, nor is it an absolute good”
action or decision of the executive. Administrative courts have widened the definition of
the litigant’s interest as a condition of the case admissibility. The expansion of the definition
of the “litigant’s interest” is a general rule permanently assured by administrative judiciary
in various types of cases. Whenever the challenged action or decree of the government is
related to the whole Egyptian society, courts declare that it is sufficient for the plaintiff to
be an “Egyptian citizen” to admit the case. Being a citizen implies that the plaintiff is
directly affected by the challenged decision and therefore the case is admitted. This
expansion of the “interest” definition has yielded a tremendous increase in the accessibility
of individuals to administrative courts. As a result, the frequency of lawsuits pertaining to
challenging major public policies embraced by the executive has been largely growing. All
the verdicts on privatization of healthcare and public sector companies provide evident
examples of the ever-increasing expansion of the litigant’s “interest”. The State Council
declared the admissibility of these case on the basis that all plaintiffs are Egyptian citizens
and therefore they would be affected by the negative results of such major social and
economic public policies that affect the entire society. In my view, this approach is laudable
because it expands the scope of judicial review over the executives in pivotal matters that
have impacts on the whole society to ensure their adherence to constitutional and statutory
rules. This would promote accountability of the government to law. Narrowing the
definition of “litigant’s interest” in such cases would enable the executive branch to elude
a fundamental form of accountability i.e. judicial control.
It is worth mentioning that after administrative courts invalidated plentiful sales of assets
and companies owned by the state, like in Omar Effendi Case, the legislative authority
enacted law no. 32/2014 which prohibits any party other than the contracting parties from
challenging sales or investment contracts signed by the Egyptian state with any entity.
Moreover, the law provides immunity for the judicially-challenged contracts at the time of
its promulgation as it compels courts to declare all the ongoing relative lawsuits
“inadmissible.” Therefore, the State Council competence over the state contracts has been
largely diminished
98
.
Chapter III. Factors contributing to the judicialization of politics in the Egyptian
administrative judiciary:
The tendency of the State Council courts towards the judicialization of mega-politics is a
sociopolitical and legal phenomenon which can be attributed to the convergence of an array
of factors. These factors can be divided into three main categories: institutional elements,
legal mobilization and judicial role perception. This chapter endeavors to elucidate these
factors and explain which one may be considered as the main driving force behind the
judicialization of mega-politics.
98
The law no. 32/2014 is currently challenged before the Supreme Constitutional Court which has not issued
a judgment until the time of writing this thesis.
A. Institutional elements:
The emergence of the trend towards the judicialization of politics in Egyptian
administrative courts is backed by the presence of three basic institutional factors. First, the
existence of a constitutional framework that facilitates judicial activism is a critical factor
of judicialization of mega-politics. As Hirschil contends:
The existence of a constitutional catalogue of rights and judicial
review mechanisms not only provides the necessary institutional
framework for courts to become more vigilant in their efforts to
protect the fundamental rights and liberties of a given polity’s
residents; it also enables them to expand their jurisdiction to address
vital moral dilemmas and political controversies of crucial
significance to that polity.
99
Administrative judges fundamentally rely on the constitutional framework to decide on
crucial social, economic, and political controversies. The constitutional framework
provides two main tools for the State Council to make crucial public policy decisions: the
written provisions on rights and freedoms as well as the texts that determine the jurisdiction
and authoritative powers of the executives.
Since 1971, Consecutive Egyptian constitutions have provided for detailed provisions on
individual rights and liberties. In addition, they grant international conventions and
multilateral treaties the binding force of municipal laws once ratified by Egyptian
authorities. Hence, the provisions of all ratified human rights conventions and treaties are
constituent part of the legal rules applied before courts. While adjudicating disputes,
administrative courts consider specific rights texts, of the constitution or a human rights
convention, as the focal point of the verdict, and simultaneously prescribe the definition,
scope, limitations and parameters of the intended right or liberty, which eventually manifest
judicialization of politics in this regard.
100
99
Ran Hirschil, supra note 18, at 11.
100
It is noteworthy to indicate that in few instances, but I do not allege to be a general approach, the Court of
Administrative Justice reached far beyond what the constitution stipulates regarding the legal force of
international treaties. It held that human rights international conventions that were not ratified by the Egyptian
Administrative judges have apparent propensity to go beyond the text of applicable law, if
there is any, and rely more on their personal ideological preferences, cultural tilts, and social
backgrounds. This is described as judicial activism.
101
Judges may not interpret the
provisions of legal rules in a mechanistic way. Rather, they address more considerations
other than the written words of the applicable law such as the real intent of the creator of
these rules, whether constitutional or international, with the objective of attaining their
compatibility with the relevant social, political and economic environments. When the text
of the constitution or a human rights convention is ambiguous, or not well-defined, judges
provide their own set of rules governing the dispute, based on their own perception of what
the “proper” interpretation of the text is, or what the law ought to be. Consequently, judicial
activism of administrative judiciary, through interaction with the auspicious constitutional
framework, is more likely to pave the way towards the judicialization of mega-politics.
The previously elaborated judgment on the civil servant right to strike (case no.5) is an
apparent example when the court established its judgments on the provisions of the
constitution and of the ICESCR
102
that provide for the right to strike and explicitly provided
their own set of rules governing the issue. Moreover, the verdict that established the
minimum wage of workers (case no. 8) clearly indicates how courts deviate from non-
binding interpretation of some constitutional texts; and rather rely on their ideologies and
policy preferences to present a novel and more authoritative interpretation of constitutional
provisions to accord them a binding force.
authorities may be applicable to national disputes. Recently, in 2017 the Court stated that the Egyptian
international obligations emanating from the International Convention for the Protection of All Persons from
Enforced Disappearance have “international moral binding force” that gives its provisions the same legal
force as municipal laws despite the fact that the convention is not ratified by the Egyptian authorities. See
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 78415, session of 2 Jul.
2017, year 62 (Egypt).
101
See Ibrahim Soliman, Judicial Activism in the Egyptian State Council: A Case Law Study, AUC thesis,
2016, American University in Cairo, Master's Thesis. AUC Knowledge Fountain.
102
The International Covenant on Economic, Social and Cultural Rights.
Another prominent indication of the constitutional framework as a crucial element of
judicialization is a number of judgements that prohibited police officers, affiliated to the
Ministry of Interior, from entering the universities campuses and practicing any activities
affecting the university independence. Although there were no legal rules regulating the
police officers’ existence and role in universities, verdicts of administrative courts banned
such existence, on the basis that it constituted infringement of the constitutional right to
education.
103
Another tool provided by the constitutional framework is constitutional texts that
enumerate authoritative powers of the executives. As illustrated in Chapter 2,
administrative judiciary declares jurisdiction over executive actions, although formerly
perceived as sovereignty acts, when the constitutional framework changes and the new
constitution provides for formal or substantive requirements of these actions. The role of
the judiciary is to verify the compliance of the executive to these conditions whether in the
form of procedural stipulation for taking such acts (as in the case of nullifying the
presidential decree calling for holding the parliamentary elections due to lack of the Cabinet
approval as a procedural condition) or substantive requirements pertaining to the subject-
matter of the actions (as in the case of the Egyptian Saudi maritime border demarcation
treaty, in which the court reviewed the adherence of the executive to the constitutional
forbiddance to cede any part of the territory)
Second, the development of a modern complex state with large bureaucratic machinery is
a considerable factor of the judicialization of mega-politics.
104
Expansion of judicial review
of administrative courts is an inevitable outcome of the sophistication and complexity of
103
See e.g., Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 17607, session of 25
Nov. 2008, year 62 (Egypt). In this case, The Court grounded its judgment on the basis of the constitutional
text on the universities independence. It asserted that this independence is achieved when the university
manages its own affairs, and when all its departments and units, including the Campus Security Unit, are
subordinate to the university president whose orders and decisions have to be implemented, without any
interference from any other entity. So, it is not permissible to impose any restrictions on the university’s
practice of its affairs under any justifications as this diminishes the university independence, stipulated in the
constitution.
104
MARTIN SHAPIRO & ALEC STONE SWEET, supra note 28.
the Egyptian society through time. The State Council scrutinizes the actions of enormous
amount of public authorities and agents of the executive branch responsible for making and
enforcing a myriad of policies pertaining to education, healthcare, transportation,
environmental protection, investment and the like. This immense administrative apparatus
with wide spectrum of fields raises the opportunities of administrative courts to deeply
engage in these domains. As I previously elucidated, the involvement of the State Council
in public policies arenas goes beyond guaranteeing proper implementation and
achievement of their objectives and extends to establishment or abolishment of public
policies. The more immense and diverse bureaucratic machinery is, the more possible
occasions for the State Council to judicialize mega-politics through substantially making,
suspending or revoking a major public policy.
Third, the accessibility of the State Council courts, compared to the Supreme Constitutional
Court (SCC), is an important aspect that has implications for judicialization of politics.
Egypt employs a centralized model of constitutional review characterized by one single
court i.e. the SCC, entrusted with deciding constitutionality of legal rules. The SCC is not
directly accessible through the ordinary litigation procedures before ordinary and
administrative courts. According to Law no. 48/1979 governing the operations of the SCC,
a lawsuit may be filed before the SCC only when a court, during litigation, decides the
referral of a case to the SCC to declare the constitutionality of particular legal provisions
related to the dispute, either on its own initiative or upon the request of a party to the
litigation.
105
Accordingly, direct resort of litigants to the SCC claiming the
105
Article 29 of Law no. 48/1979 states that
The Court assumes judicial control over the constitutionality of laws and
regulations in the following manner: (A) If, during the consideration of a case, one of the
courts or bodies with judicial jurisdiction finds that a provision in a law or regulation that is
necessary for settling the dispute is unconstitutional, the case shall be suspended and the
papers shall be referred without fees to the Supreme Constitutional Court to decide on the
constitutional issue. (B) If one of the litigants, during the consideration of a case before one
of the courts or bodies with judicial jurisdiction, claims that a provision in a law or regulation
is unconstitutional, and the court or body finds that the plea is serious, it adjourns the
consideration of the case and sets a date for the one who aroused the defense to file a case in
a period not exceeding three months before the Constitutional Court. If the case is not filed
on time, the plea shall be considered null and void. 118 Tamir Moustafa, supra note 37 at 886.
unconstitutionality of a legal provision is inadmissible by virtue of law. On the contrary,
administrative courts are directly accessible by litigants through ordinary procedures. The
institutional element of courts accessibility is a contributory factor to the constant increase
in administrative cases, especially those related to the infringement of the individual rights
by the executive. This facilitates the embroilment of judges in core political and social
predicaments and the occurrence of judicialization of mega-politics.
B. Legal Mobilization:
Legal mobilization of effective social and political actors seeking for social change via
strategic litigation before the State Council is considered a substantial factor leading to the
judicialization of mega-politics. NGOs, political activists and interest groups resort to
litigation to invoke the protection of individual right and freedoms. This process, called
“Legal mobilization from below,” has rapidly increased because administrative courts, side
by side with the SCC, are perceived to be active courts, that constitute a fair, impartial and
more respected forum to pursue major change in the economic, political or social
environments.118 In an undemocratic regime, as there is little possibility and capability of
the people to attain a given societal change or invoke rights via representative authorities,
judicial avenues are considered rapid and effective means to pursue such objectives.
106
In
Egypt, some scholars contend that law primarily serves as an efficient and disciplined
exercise of state power- a feature described as “rule by law,”
107
It is characterized by using
law as a tool of social control while allowing marginalized groups to seek redress. It is
argued that legal mobilization so widespread in Egypt is an outcome of the activists’
attempts to achieve a transformation of rule by law to the rule of law. Due to the state’s
reliance on rule by law, it is expected that law would become the main expression of societal
contention, given the fact that it is embedded in state’s fabric and practices.
108
106
Lynette J. Chua, Legal Mobilization and Authoritarianism, Annu. Rev. Law Soc. Sci. 2019, at 356.
107
Tamir Moustafa, supra note 51 at 284.
108
Mona El-Ghobashy, Constitutionalist Contention in Contemporary Egypt, AMERICAN BEHAVIORAL
In consolidated democracies, the rights discourse has been deployed. Raising rights
awareness relies not only on the existence of written rights bills and charters, but also on
the existence of support structure for legal mobilization. This structure is composed of four
main integrated grounds: rights-advocacy organizations, pro-rights lawyers, financial aid,
and governmental rights-enforcement agencies.
109
On the contrary, in restrictive polities,
there are numerous obstacles that hinder this support structure from effective functioning
such as restrictive legislation targeting civil society organizations and fastchanging statutes
regulating pivotal matters.
110
As a result, few civil society organizations and political
activists can be efficiently active and capable of mobilizing litigation. Despite encountering
tangible obstacles to legal mobilization, NGOs and political activists in Egypt performed a
noticeable role in providing the demand-side of the judicialization of mega-politics though
initiating plenty of lawsuits in various contentious fields in the State Council courtrooms.
For instance, the case of the workers’ minimum wage establishment (case no.8) was filed
by a human rights organization called the
Egyptian Center for Economic and Social Rights (ECESR) on behalf of a worker in a public
sector company. Privatization cases of Omar Effendi and other public sector companies
(case no. 10) were all filed by activists. The lawsuit of natural gas export to Israel (case no.
1) was filed by a former ambassador. The case of public health privatization (case no. 9)
was initiated by a human rights organization called the Egyptian Initiative for personal
rights (EIPR).
111
SCIENTIST, Volume 51 Number 11, July 2008, at 1606.
109
Charles Epp, supra note 27 at 19.
110
Freek van der Vet, When They Come for You”: Legal Mobilization in New Authoritarian Russia, LAW &
SOCIETY REVIEW, Volume 52, Number 2 (2018) at 303. The author explains two other obstacles to legal
mobilization: high personal risk for participating in activism and unfair trials, but it is outside the scope of
this research to address factors beyond the realm of administrative judiciary and law.
111
For further illustration of the EIPR practical efforts in this case to protect and guarantee the realization of
the right to health to all Egyptians, see generally Ayman Sabae, Four Strategic Pathways for the Realization
of the Right to Health Through Civil Society Actions; Challenges and Practical Lessons
Learned in the Egyptian Context, Health and Human Rights, Vol. 16, No. 2, Health Rights Litigation
(December 2014), pp. 104-115.
In all these cases, administrative courts assured that if the plaintiff challenges a national
public policy or a governmental action that affects the whole society, it is sufficient for the
case to be admissible that he/she is an “Egyptian citizen” without any further requirement
of the standing right (locus standi).
112
This emphasizes the expansion of the definition of
the “litigant’s interest” as a condition of the case admissibility by administrative courts. As
elaborated in Chapter 2, this is a judicial technique utilized by the State Council for
expansion of judicial review. NGOs, political activists, and civil society organizations
largely make the best use of this advantage, furnished by administrative courts, when they
opt to resort to judicial avenues to challenge a governmental action or a public policy.
C. Judicial Role Perception:
In consolidated democracies, expansion of judicial review is sometimes assessed as
opponent to democratic governing principles. Therefore, widening the realm of judicial
review is often criticized for the counter-majoritarian impact of resorting to courts that seize
power from democratically elected representatives in violation of the constitutional
separation of powers.126 In restrictive regimes, the counter-majoritarian accusation of
courts would be meaningless because they lack majoritarian democracy.
In my view, the previously stated institutional elements as well as legal mobilization are
not sufficient to explain the trend of judicialization of politics in Egypt. In restrictive
polities, when courts are not situated in their “ideal” context i.e. a liberal constitutional
democracy, the position and role of courts are more apparent than other elements that
determine judicial decision-making.
113
Accordingly, examination of the judicial ideational
propensity of administrative judges to critically involve in policy-making process is a
fundamental approach for analyzing and explaining judicialized megapolitics.
112
Justice HAMDI YASIN OKASH, supra note 108, at 329.
126 Ran Hirschil, supra note 40, at 81.
113
Shannon Roesler, Permutations of Judicial Power: The New Constitutionalism and the Expansion of
Judicial Authority, LAW & SOCIAL INQUIRY, Vol. 32, No. 2 (Spring, 2007), at 568.
Scholarly work on comparative judicial politics have illuminated the prominence of
ideational factors that affects courts’ engagement in public policy decisions and scrutiny of
unruly actions of elected representatives. In the US context, the attitudinal model
114
of
judicial decision-making contends that attitudes, values, ideologies and policy preferences
substantially formulate judicial decisions.
115
Outside the US context, some scholars extend
the ideational approach to judicial politics, based on the argument that judicial attitudes are
more complicated and hence go beyond simple party identification and left-right political
ideology as prescribed in the American attitudinal model. Hilbink emphasizes that there are
other critical determinants of how judges address particular issues, especially those related
to judicial review of executives and legislature, such as “judicial role perception.”
116
She
argues that examination of cases that involve politically powerful actors in which judges
seek to nullify, limit or alter the actions of these actors indicates that judicial role
perceptions are crucial in shaping judges’ interest in engaging in such cases. She advocates
that judges become willing to, and capable of, engaging in cases challenging other political
powerful actors due to their professional selfunderstanding of their role as guarantor of
fundamental legal principles. Such sincere judicial attitudes “are not inert background
characteristics, awaiting the right strategic conditions to be released or activated; rather,
they are themselves crucial to explaining proclivity to assert their authority against
powerful actors.”
117
114
In the US context, there are mainly three models of judicial decision making. Other than the attitudinal
model, the legal model perceives judges as apolitical actors who apply the law in compliance with the written
statutes, case law and other formal sources. The strategic model assumes that judges take into account the
views of other actors and may choose to depart from a preferable outcome in order to pursue these accounts,
in some sort of trade-off. For further elaboration of the three models, see Björn Dressel, Raul Sanchez-
Urribarri, Alexander Stroh, Courts and informal networks: Towards a relational perspective on judicial
politics outside Western democracies, International Political Science Review 2018, Vol. 39(5) at 574.
115
See for example, Segal, Je_rey, and Harold Spaeth. The Supreme Court and the Attitudinal Model
Revisited. NEW YORK, NY: CAMBRIDGE UNIVERSITY PRESS. 2002
116
Lisa Hilbink, The Origins of Positive Judicial Independence, CAMBRIDGE UNIVERSITY PRESS, Vol 64. No.
4, 2012, at 588.
117
Id. at 589. Hilbink provides a comparative analysis of Spain and Chile to assert the significance of judicial
role perception in judicial decision-making. In Spain, some judges began taking a stand against Franco regime
well before a transition to democracy was under way, engaging in a form of high risk activism. In Chile, by
contrast, judges refused to assert their authority through long periods of very competitive politics (before and
after Pinochet era).
In line with this view, some scholars argue that in many African states, judges were the
cornerstone of establishing institutions and legal cultures able to boost constitutional
conceptions of judicial independence and review.
118
Individual leadership of some judges
played a crucial role in institutional development of the judiciary. Those judges were
committed to the values of constitutional democracy including curbing the executive
authority, bolstering individual rights, and building a strong judiciary. Other scholars adopt
the same approach, asserting that whether or not judges expand their authority and get
embroiled in policy making decisions especially regarding individual rights, is mainly
contingent upon their specific attitudes towards rights.
119
Acknowledging that there are
other factors facilitating judicial involvement in rights issues, the initial push for this
judicialization of politics in this field would originate with a group of judges who share the
view that constitutions and bills of rights entail responsibilities for the government and
judges ought to utilize their power to guarantee its compliance with these constitutional
duties. If judges are not internally predisposed to enforce constitutional provision on
individual rights, it is unlikely that other factors would result in judicialization of politics
in rights issues.
This research argues that professional role perception of administrative judges, through
interactions with constitutional texts and legal inputs, is the major factor of judicialization
of mega-politics This judicial perception of their role as guarantor of rights and liberties
and a fundamental constitutional check on the executive authority is the result of
accumulated progressive judicial practice for the past decades- what I describe as
“progressive judicial legacy.” In other words, ideational characteristics of administrative
judges concerning their professional role have been institutionally and historically
118
Jennifer Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in
Africa. 2001. Widner focuses on the Tanzanian context, but she makes comparisons with other southern and
eastern African countries, including Kenya, Uganda, Malawi, Zambia, Zimbabwe, Botswana, South Africa,
and Namibia.
119
Rodrigo M. Nunes, Ideational Origins of Progressive Judicial activism: The Columbian Constitutional
Court and the Right to Health, LATIN AMERICA POLITICS AND SOCIETY Vol. 52 No. 3, Fall 2010 at 70.
formulated. The State Council judges hold the belief that they should be actively involved
in protection of individual rights and freedoms and guaranteeing the adherence of the
executives to the rule of law; and they shape their judgments accordingly. Therefore, they
express outright propensity, via their rulings, to engage in public policy-making in various
social, economic, moral and political issues.
In my opinion, the collective judicial role perception is the outcome of the judicial
progressive legacy formed via countless State Council rulings all over its history that have
meant to impose limitations on the executive’s hegemony over the society. Administrative
judiciary has a legacy of judgments, from the very beginning of the State Council history,
that imposes genuine restrictions on the executive, ensures that it works within the
constitutional and legal framework, and provides guarantees of public rights.
Since its establishment in 1946, the State Council has exercised review of the executives’
actions and decisions and issued numerous decisions demonstrating its active position of
protecting individual rights. Many of these cases were considered of political significance
as they were relevant to the political hegemony of powerful politicians over opposition.
For example, although Egypt underwent martial law for a very long period, the State
Council has constantly ruled that the decisions and measures taken by the executive to
implementation of martial law are not considered acts of sovereignty and shall be subject
to review of administrative courts to determine its compliance with law. In 1948, the Court
of Administrative Justice (CAJ) ordered the Minister of Defense to pay, from his own
patrimony, two thousand Egyptian pounds as a compensation to a military officer for not
implementing a judicial verdict in his favor.
120
In 1951, the State Council revoked the
120
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 165, session of 5 May. 1948,
year 1 (Egypt).
governmental forbiddance of opposition newspapers distribution
121
and in 1952 it reviewed
deportation decisions as administrative ones not sovereign acts.
122
During Nasser era, some statutes were enacted to exempt specific governmental decisions
from judicial review.
123
However, the CAJ was so bold that it declared these provisions are
unconstitutional
124
and therefore the court would not apply them,
125
although there was no
constitutional provision forbidding exempting administrative decision from judicial
review.
126
Furthermore, upon Sadat conclusion of the 1979 Peace Treaty with Israel and in
response to paramount opposition to this treaty, Sadat took numerous repressive decisions
against opposition including transfer of some journalists, transfer of some faculty
professors, seizure of some organizations’ funds and revoking authorization of some
newspapers. The State Council declared its competence over all these decisions on the basis
that they are all administrative decisions despite the apparent political motive behind
them.
127
The previous cases are few, albeit indicative, examples of the progressive judicial legacy
of the State Council. Since establishment, administrative courts have asserted their legal
authority vis-à-vis politicians in power, positioning the State Council as the shield of rights
and freedoms. Judges have expressed their willingness and capability of standing against
the political regime, within the ambits of constitutional and legal provisions, on behalf of
121
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 587, session of 26 Jun. 1951,
year 5 (Egypt).
122
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 282, session of 8 Apr. 1952,
year 4 (Egypt).
123
For example, Law 184/1958 on the universities regulation and Law no. 31/1963 on the dismissal of civil
servants other than by means of disciplinary measures.
124
These judgments were rendered before the establishment of the Egyptian Constitutional Court in 1969
which was exclusively entitled the constitutional review of legislative statutes.
125
Mohammed AbdelWahab, Administrative Judiciary, 2011 (Arabic) at 61.
126
Starting from the 1971 Constitution, consecutive Egyptian constitutions provides for forbiddance of
exempting any administrative decision or action from judicial review
127
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 3123, session of 22 Dec. 1981,
year 35 (Egypt).
protection of rights and boosting the rule of law. As Hilbink contends, judicial attitudes are
“not necessarily private/individual and exogenous but are often socially and/or
institutionally constituted.”
128
In my view, administrative judges’ selfunderstanding of their
role as guarantor of rights and freedoms against executives is basically shaped and
formulated by institutional legacy of progressive judicial activism, manifested a myriad of
rulings that limit the power of executives and guarantee fundamental rights.
Members of the State Council are undoubtedly diverse in their individual ideologies,
political orientations, and social backgrounds; however, they are committed to a unified
normative perception of their mission or duty as guarantor of rights and liberties and a
fundamental constitutional check on the executive authority. These normative ideas of their
role is constantly expressed in the State Council precedents. In numerous cases,
129
the State
Council ruled that
The State Council courts are entrusted with administration of justice,
protection of the principle of legality, the rule of law, and public and
private rights and liberties of Egyptians within the framework of
constitutional and statutory principles that govern the state and
society and determine the objectives of the public interest.144
This professional perception of the State Council role is in consistency with what jurists
describe as the substantial social function of administrative judiciary- guarantee of the
executives’ respect for individual rights and liberties stated by law
130
. The State Council is
a major check on the executive authority’s actions and decisions to ensure its adherence to
the principles of the rule of law. It is considered a fundamental pillar of a civilized
democratic state that guarantees basic rights. The evaluation of the administrative
128
Lisa Hilbink, supra note 97, at 596.
129
See e.g., Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], cases no. 1875 ,1914,
session of 9 Mar. 1991, year 30 (Egypt). See generally similar verdicts such as Al-Mah. kamah al-Id. ārīyah
al-‘Ulyā [Supreme Administrative Court], case no. 5730, 6585 session of 6 Feb. 2010, year 55 (Egypt) and
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 33272, session of 7 Jul. 2012, year
55 (Egypt). 144 cibarA ni sdaer lanigiro ehT ةدايسو ةيعورشملاو ةيعرشلا ةيامحو ةلادعلا ةماقإ اهل دوهعم ةلودلا سلجم مكاحم
نوناقلا ماظنل ةمكاح ئدابمو لوصأ نم نوناقلاو روتسدلا صوصن هتدروأ ام راطإ يف نييرصملل ةصاخلاو ةماعلا تايرحلاو قوقحلا ةيامحو
ةلودلا
ةماعلا ةحلصملا تاياغو عمتجملاو.
130
MOHAMMED R. ABDELWAHAB, supra note 56, at 7.
judiciary’s functioning and effectivity should be based on the extent to which it performs
its social oversight role of the executives’ respect for individual rights and freedoms within
the constitutional and regulatory framework.
131
The progressive judicial legacy lies in the core of administrative judges’ beliefs and
embolden them to declare null and void any action or resolution of the executive however
significant and whoever its issuer may be. Administrative judges bear in their collective
mind that the judicial entity to which they belong i.e. the State Council, was mainly founded
to provide checks on the executive. This inherited boldness increases the probability of
administrative judges to massively involve in the policy-making process either by declaring
the illegitimacy of a governmental public policy in force, or by ordering the executive to
adopt a certain one, emanating from their interpretation of the constitution and ordinary
statutes.
Conclusion.
131
Id. at 8.
Over the past decades, judicial power has expanded all over the world.
132
Courts all over
the world make significant policy decisions that were previously perceived as the purview
of politicians. Judges gradually expand their authority and constantly issue rulings
pertaining to the most pivotal social, economic and political predicaments in many
countries. The process of policy-making has been deeply integrated with the core function
of judges to interpret and apply the law. This led to the emergence of what may be termed
the “judicialization of politics”. The judicialization of politics has expanded its ambit to
comprise what is termed “mega-politics”- matters of ultimate political significance in a
society.
Analysis of administrative courts’ judgments clearly indicates the occurrence of the
judicialization of mega-politics. There are three forms of such judicialization. First, it
appears when the judiciary narrowly defines the doctrine of sovereignty acts as one of the
cornerstone prerogatives of the executives. Second, it is apparent when administrative
courts perform explicit judicial law-making concerning pivotal matters, as an involvement
of the judiciary into the substantial prerogative of the legislatures. Third, the phenomenon
is observed when the judiciary get embroiled in adoption or abolition of a public policy
related to substantial social, economic, or political questions.
The tendency of the State Council towards the judicialization of mega-politics may be
attributed to the convergence of an array of factors including institutional elements, legal
mobilization and judicial attitudes. First, there are three basic institutional factors that
contribute to the judicialization of mega-politics. They are the existence of a constitutional
framework that facilitates judicial activism, the development of a modern complex state
with large bureaucratic machinery and the accessibility of the State Council courts,
compared to the Supreme Constitutional Court (SCC). Second, legal mobilization by
effective social and political actors seeking for social change via strategic litigation before
the State Council is considered a substantial factor leading to the judicialization of mega-
132
Tom Ginsburg, supra note 3 at 81.
politics. Third, professional role perception of administrative judges, through interactions
with constitutional texts and legal inputs, is the major factor and the main driving force
behind the judicialization of mega-politics The judicial perception of their role as guarantor
of rights and liberties and a fundamental constitutional check on the executive authority is
the result of accumulated progressive judicial practice for the past decades- what I describe
as “progressive judicial legacy.”
The Judicialization of Mega-P The Judicialization of Mega-Politics in E olitics in
Egypt’s Administr s Administrative Courts: Insight into The Rulings of the Egyptian
State Council (2000-2020)
Introduction
The interrelationship between law, courts and politics has always been complex and
multidimensional. The role and significance of courts as a political actor are prominent
dimensions of this interrelationship. In this regard, the world has witnessed a profound
transfer of power from representative institutions to judiciaries over the last decades.
133
Courts all over the world are making significant policy decisions that were previously
perceived as the purview of politicians.
134
The judiciary increasingly gains more authority
as an influential institution interacting with other political actors in a society. The range of
activities over which courts exercise considerable authority has immensely expanded
quantitatively and qualitatively. The increasing political significance of courts has
expanded in scope to comprise the most core political, moral, social and economic
controversies.
Theoretically, the Separation of Powers doctrine connotes that judges are competent with
resolving disputes. Their fundamental function is to apply law. On the other hand,
133
Ran Hirschl, The New Constitutionalism and the Judicialization of Pure Politics Worldwide, 75
FORDHAM L. REV. 721 (2006).
134
Tom Ginsburg, The judicialization of administrative governance: Causes, consequences and limits, 2008
at 1
politicians, mainly the elected representative of the people, are responsible for making law.
Accordingly, the process of policy-making is essentially entitled to politicians.
Establishment of public policies is the outcome of political interactions that take place
within the representative institutions of a society. Politicians are supposedly the ones
responsible for providing solutions to social, economic and political quandaries through
democratic means.
Over the past decades, judicial power has expanded all over the world.
135
In the context of
separation of powers, while practicing their main function i.e. judicial review, courts
gradually expand their authority and constantly issue rulings pertaining to the most pivotal
social, economic and political predicaments in many countries. Hence, the process of
policy-making has been deeply integrated with the core function of judges to interpret and
apply the law. This led to the emergence of what may be termed the “judicialization of
politics”. The locus of political activity and making public policies, regarding fundamental
matters in almost all aspects, has been transferred to courtrooms. The judicialization of
politics has expanded its ambit to comprise what is termed “megapolitics”- matters of
ultimate political significance in a society. The ever-increasing judicialization of politics
and mega-politics is considered one of the most striking phenomena in late-20th and early-
21st century government.
136
It is argued that:
Core political controversies are framed as predominantly constitutional
ones, with the concomitant assumption that courts are the suitable forum to
deal with them. The list of examples seems endless: the fate of the American
presidency or national health care plan; what is the exact meaning of Israel's
self-definition as a Jewish and democratic state; the legitimacy of the
German bailout deal or the status of German sovereignty in the larger EU;
the validity of Russia's war in Chechnya or accession to the WTO; the
dollarization plan in Argentina; disqualification of political parties in
Turkey, Belgium and Spain; the scope of Islamic law as a source of
legislation in Egypt or Malaysia; whether sending Korean troops to Iraq is
allowed; whether violation of term limits by incumbent leaders in
135
Tom Ginsburg, The Global Spread of Constitutional Review, in THE OXFORD HANDBOOK OF LAW
AND POLITICS 81, 82-87
136
Ran Hirschil, The Fuzzy Boundaries of (Un)Constitutionality: Two Tales of Political Jurisprudence, 31 U.
Queensland L.J. 319 (2012).
Colombia, Uganda, or Venezuela is constitutional.
137
There have been constant endeavors to explore and assess the tendency towards the
judicialization of politics. These attempts mainly focus on the situation in established
democracies like the US and European countries,
138
and in nascent democracies.
139
What
is usually at stake is the democratic credentials of judicial review. Tremendous
controversies are raised about the expansion of judicial review and whether it is a counter-
democratic practice or it can be reconcilable with democracy. The fact that courts have been
promoted and gained more authoritative power than before has precipitated fierce debates
on whether this power increase at the expense of the representative institutions. On the
other hand, unfortunately, the judicialization of politics in authoritarian regimes rarely
receives plausible attention in the academic work and if so, focus is mainly directed to
constitutional courts.
140
This work endeavors to analyze cases of the Egyptian State Council’s involvement in mega-
politics i.e. core political, social and economic controversies. The purpose if this work is
of tripartite significance. First, it seeks to enrich the literature on the judicialization of
mega-politics through examination of the phenomenon in Egypt as a part of the
understudied region of the Arab World. In the meanwhile, it fills in a pivotal gab by
studying administrative courts instead of concentrating only on the Supreme Constitutional
Court (hereinafter referred to as the SCC). Second, this work explores the interrelationship
137
Id.
138
See, e.g., Martin Shapiro, Juridicalization of Politics in the United States, 15 INT’L POL. SCI. REV. 101
(1994); Cristine Landfried, The Judicialization of Politics in Germany, International Political Science
Review, 1994; Russell A. Miller, Lords of Democracy: The Judicialization of Pure Politics in the United
States and Germany, 61 Wash. & LEE L. REV. 587 (2004); Barry Holmstrom, The Judicialization of
Politics in Sweden. International Political Science Review, 1994.ANDFRIED
139
See, e.g., JUDICIALIZATION OF POLITICS IN LATIN AMERICA (Rachel Sieder et al., eds. 2005);
Chien-Chih Lin, The Judicialization of Politics in Taiwan, 3 AsianJLS 299 (2016); CHIEN-CHIH LIN, THE
JUDICIALIZATION OF POLITICS IN NEW DEMOCRACIES.
140
See, e.g., Duncan McCargo, Competing Notions of Judicialization in Thailand, Contemporary Southeast
Asia Vol. 36, 2014; Alexei Trochev, Less Democracy, More Courts: A Puzzle of Judicial Review in Russia,
2004.
between administrative courts, law and politics to determine whether the engagement by
courts in the policy-making process reflects the occurrence of the judicialization of mega-
politics in a comparable way to the situation in consolidated democracies. Third, this work
attempts to trace the development of the judicialization of mega-politics not only through
examining the final declaration of courts’ rulings, but also via thorough legal examination
of the verdicts substance to point out the mindset of judges and their legal and judicial
means to judicialize pure politics. Such dual examination provides a more comprehensive
and profound understanding of the proliferation of judicialized mega-politics and help to
specify the factors which fundamentally affects its emergence and progress. Furthermore,
this work proposes that the occurrence of the judicialization of mega-politics in the State
Council courtrooms has been constantly observed all over the past twenty years from 2000
to 2020. Administrative judges have clearly exhibited robust engagement in matters of
utmost social, economic and political significance.
This thesis proceeds in three parts. Part 1 illustrates the definition of the phenomena of
judicialization of politics and mega-politics and their proliferation as global trends and then
move to the situation in Egypt to demonstrate the jurisdiction and functions of the State
Council (administrative judiciary) in Egypt. Part 2 indicates the forms of judicialization of
mega-politics in administrative justice through analysis of some major judgments that
represent the engagement of administrative courts in major social, economic and political
quandaries. Part 3 articulates the factors contributing to the administrative courts’
judicialization of mega-politics.
Chapter I. The phenomenon of the judicialization of mega-politics.
This chapter seeks to illustrate the global tendency towards the judicialization of politics
and mega-politics and depict the common literature’s main theories for explaining this
phenomenon. Besides, it elaborates the emergence of the judicialization of politics in Egypt
in the past two decades especially in the judgments of the Supreme Constitutional Court
(SCC). Then it explores the judicial competence and functions of the State Council in Egypt
as an endeavor to explain why a nondemocratic regime may empower administrative courts
to the extent that they are capable of judicializing mega-politics.
A. The judicialization of politics and mega-politics as global trends.
To “judicialize” is to “treat judicially, make judicial in character, to subject to judicial
process or decision.”
141
In this regard, “judicially” refers to “capacity of judge, in relation
141
Lexico Dictionary, Powered by Oxford, available at https://www.lexico.com/definition/judicialize (last
visited Jan. 14, 2022).
to the administration of justice by legal process, by sentence of a court. ”
142
Accordingly,
judicialization simply refers to the expansion of treating a wide range of aspects judicially.
On the other hand, undoubtedly there is no universal or legally accepted definition of
“politics. In other words, it has a numerous number of definitions according to the lens
through which it is perceived.
143
In the context of this research, I address the term “politics” as the art of government. The
word “politics” originates from the Greek word “polis”, which means city-state. Therefore,
politics mainly relate to what concerns the state; its aims, purposes and institutions. A
narrow definition of politics in this regard is the study of the government- a collection of
officers who make, interpret and enforce rules for the whole community.
144
According to
this definition, politics occur only within the government departments, cabinet rooms and
legislative chambers. Hence, only civil servants, politicians and lobbyists are involved in
politics and the vast majority of the people are not engaged. All the institutions that are not
“running the country” are considered as “non-political.”
145
At the top of these institutions
is the judiciary.
Judicialization of politics is a multifaceted concept that has not been inclusively defined.
There are two main approaches attempting to define this phenomenon. The first One depicts
the phenomenon by concentrating on the proliferation of judicial decision-making methods
and legal discourse in every aspect of modern life. Accordingly, the judicialization of
politics refers to “the spread of legal discourse, jargon, rules, and procedures into the
political sphere and policy-making forums and processes.”14 It reflects the situation in
which law, litigation, and legal discourse have permeated every corner of society as a
142
Torbjorn Vallinder, The judicialization of politics- A worldwide phenomenon, International Political
Science Review 1994.
143
Eugene F. Miller, What Does "Political" Mean? 42 The Review of Politics. 56 (1980).
144
Valeri Modebadze, The term politics reconsidered in the light of recent theoretical developments, IBSU
Scientific Journal (IBSUSJ), 2010 at 41.
145
See HeywoodAndrew, Politics, Macmillan Press LTD, London, (1997).
14 Ran Hirschl, Supra note 1, at 723.
feature of the complexity of modern societies.
146
It is manifested by the subordination of
almost all decision-making forums in modern societies, especially those adhering to the
rule of law, to quasi-judicial procedures and rules. It is genuinely related to law’s
expropriation of social conflicts and its control of social relations, and accordingly is
sometimes described as “judicialization of social relations.”
147
The other approach of defining the judicialization of politics focuses on the expansion of
the judiciary’s role and the increasing significance of courts as an actor in the political field
compared to other main actors i.e. the legislatures and executives. In this regard, the
judicialization of politics is defined as “the process by which courts and judges come to
make or increasingly dominate the making of public policies that had been previously made
by other governmental agencies, especially legislatures and executives.”
148
It characterizes
“the reliance on courts and judicial means for addressing core moral predicaments, public
policy questions, and political controversies.
149
” Accordingly. the judicialization of politics
represents the expansion of the judiciary’s power at the expense of the legislatives and
executives. Decision-making authority regarding crucial social, economic, moral or
political controversies is transferred to courts from politicians and/or administrators.
150
In my perspective, the second approach provides more proper definition of the tendency
towards the judicialization of politics as it focuses on the expansion of judicial review at
the expense the executives and legislatures, which results in courts determination of the
outcomes of major social, economic and political quandaries and public policy questions.
Amplification of judicial review is the focal point of the phenomenon of the judicialization
of politics. In terms of separation of powers, judicial review is entitled to courts mainly to
preserve this separation. However, judges’ jurisdiction has been largely expanded.
146
Rachel Sieder, Introduction to The Judicialization of Politics in Latin America, at 5.
147
Ran Hirchil Supra note 1, at 724-725.
148
TAMIR MOUSTAFA, THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS, AND ECONOMIC
DEVELOPMENT IN EGYPT, CAMBRIDGE UNIVERSITY PRESS, 2007 at 26.
149
Ran Hirschil, The judicialization of politics, THE OXFORD HANDBOOK OF POLITICAL SCIENCE, 2011, at 1.
150
Torbjorn Vallinder, Supra note 10, at 1.
Although judges have to base their decisions on pre-existing constitutional and statutory
texts, their discretion and interpretative authority of these texts are so huge that they get
embroiled in making public policy decisions as well as establishing judge-made laws.
Hence, they are essentially legislating, not adjudicating.
151
On the other hand, the first approach of defining the judicialization of politics does not
depict the genuine elements of the phenomenon. Rather, it provides for a contributory factor
of judicialized politics. The proliferation of law and legal discourse in all aspects of the
society is not the core of the global trend towards the judicialization of politics. Instead, it
substantially leads to providing more opportunities to courts to deeply involve in public
policy questions, and political controversies, and consequently judicialize politics. The
current situation in which law, litigation and legal discourse prevails in modern societies
represents a favorable political environment enabling judges to get embroiled in core social,
economic and political dilemmas.
Ran Hirschil introduces a distinct category of the judicialization of politics, which he terms
“the judicialization of mega-politics.” It refers to “the reliance on courts and judges for
dealing with core political controversies that define (and often divide) whole polities.”
152
He indicates that it comprises a few subcategories such as judicialization of electoral
processes; judicial review of executives’ prerogatives in the fields of macroeconomic
planning or national security; core restorative justice controversies; judicial corroboration
of regime transformation; and, most importantly, the judicialization of formative collective
identity, nation-building processes, and struggles over the very definition of the polity as
such.22
151
STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS IN EUROPE 1 (2000).
at 61.
152
Ran Hirschil, supra note 18, at 4-5.
22 Id.
Hirschil differentiates between the judicialization of mega-politics on the one side, and on
the other side, the judicialization of “ordinary” public policy making. The latter refers to
the involvement of judges in determining public policy outcomes, mainly through
"ordinary" constitutional rights jurisprudence and the judicial redrawing of boundaries
between state organs.
153
It is sometimes also described as “judicialization from below” as
it is often initiated by rights plaintiffs who challenge the public policy decisions or practices
of the executives or legislatures. The judicialization of “ordinary” public policy making is
usually related to expanding the ambit of constitutional rights protection, if threatened by
encroachment of the executives and/or legislatures. Therefore, its common examples are
the cases related to civil liberties and procedural justice in decisionmaking.24
The substantial difference between the two categories of judicialization is political salience.
The judicialization of “ordinary” public policy may appear in cases related to determination
of the right to a speedy trial or to a fair hearing in criminal justice, but they are not
considered as politically prominent as the cases in which courts determine the legitimacy
of a certain polity or a nation’s collective identity, which manifest the judicialization of
mega politics (sometimes termed judicialization of pure politics). It has to be put into
consideration that the political salience may relatively vary in different circumstances.
What is conceived as a controversial matter of a political significance in a given regime
(like the right to abortion) may be considered a nonissue in another polity. As a result, the
criterion of political salience for distinguishing what is considered a judicialization of
mega-politics is “elusive yet intuitive.”
154
Works that attempt to give explanation of the global tendency towards the judicialization
of politics can be divided into four main approaches. The first approach explains the
phenomenon through the lens of rights jurisprudence. According to this rights-centred
perspective, the judicialization of politics stems mainly from the ever-growing awareness
153
Ran Hirschil, supra note 1.
24 Id.
154
Id. at 728.
of rights issues and constitutional protection of these rights. Courts are perceived by civil
society groups and political activists as effective and nonpartisan authority for claiming
their rights and freedoms.
155
The ascendancy of civil rights and liberties contributes to the
judicialization of politics. Such ascendancy is attributed not only to active judges but to the
existence of “support structure” consisted of the influence of advocacy groups, the
establishment of governmental enforcement agencies, the growth of financial and legal
resources for ordinary citizens, and the strategic planning of grass roots organizations.
156
This support structure boosts the access of individuals and interest groups to courts, which
provide them with tremendous privileges. For instance, they are not in need of forming
broad coalitions and seeking for strong political parties to defend and boost their demands
and interests in political field. Courts provide an easier, more rapid and effective
opportunity for them to raise their voice and share in the governance of their society.
Consequently, the growing reliance on courts by individuals and social movements leads
to the involvement of the judiciary in making public policy decisions and hence
judicializing politics.
A second approach, which is a functionalist one, attributes the judicialization of politics to
the increasing complexity of modern societies. States comprises increasingly many
administrative agencies with policy making authorities. For proper government, they
necessitate standardized legal norms and active judiciary as policy makers not just
arbiter.
157
On the supranational level, the same tendency towards the judicialization of
politics results, for example in the European Union, from the need for unified legal and
155
C. NEAL TATE AND TORBJORN VALLINDER (eds). 1995. The Global Expansion of Judicial Power. New
York Univ. Press, 1995.
156
Charles Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective,
Chicago: Univ. Chicago Press 1998.
157
MARTIN SHAPIRO & ALEC STONE SWEET, On Law, Politics, and Judicialization. New York: Oxford Univ.
Press 2002.
administrative norms across all member states which encounter major coordination
problems.
158
A third approach, which is a court-centered one, argues that courts are the main pillar of the
tendency towards judicialization of politics. They expand their scope of judicial review at
the expense of other organs raising controversies about the traditional principles of
separation of power. In some cases, courts and judges are the ones who largely amplify the
ambit their judicial competence and adjudicate on major public policy questions and then
the same courts may opt to impose self-made judicial restraints on their judicial review.30
These judicial restraints may be grounded on limited capacity of courts to decide on some
pure political controversies and preserving the courts public image.
A forth approach, which is a realist one, contends that the judicialization of politics is, first
and foremost, a political not a juridical phenomenon.
159
Courts are political institutions
which work within the same social, political, and economic spheres, like other political
institutions, in a given society. Based on this perception, political support is a prerequisite
for the judicialization of politics, especially that of mega-politics.32 The phenomenon is
largely the outcome of the intentional delegation of policy making authority to courts by
politicians. There are a number of reasons for this delegation by the political stakeholders
including minimizing risk by transferring political responsibility to courts, avoiding
difficult and thorny decisions. On the other hand, political opposition may seek for
judicializing politics via resorting to courts in order to obstruct government and challenge
its policies. The absence of a political environment that is conducive to the judicialization
of politics, especially that of mega-politics, would result in a legislative and/or executive
backlashes against courts. They comprise legislative overrides of controversial verdicts,
encroachment on judicial appointment procedures to ensure the appointment of
158
Stone-Sweet. Governing with Judges: Constitutional Politics in Europe, Oxford Univ. Press A. 2000.
30 Jasdeep Randhawa, Understanding The Judicialization of Mega-Politics: The Basic Structure Doctrine
and Minimum Core, 2011.
159
Ran Hirschil, supra note 1 at 753
32 Ran Hirschil, supra note 18 at 17.
“compliant” judges, in addition to establishment of constraints on the scope of judicial
review.
In my view, courts are the main driving force leading to the judicialization of politics. A
convergence of social, legal and political factors is necessary for the existence and
continuity of judicialized politics. However, all variables are the same, judges are the
cornerstone of the tendency towards the judicialization of politics. The scope of judicial
review is, first and foremost, determined by judges. In both civil-law and common-law
states, judges are entitled the competence of judicial interpretation of constitutional and
statutory rules. The amplification of the ambit of judicial review and engagement of judges
in crucial social, moral and political controversies are basically contingent on the strategic
choice by judges to explicitly or implicitly declare their judicial competence over the
subject-matter of the dispute and adjudicate on the outcome of the
controversies.
160
Undoubtedly, the explosive growth of government power at every level, which necessitates
the escalation of judicial review over various agencies and institutions of the government,
as well as the proliferation of rights discourse all over the society contribute to the
judicialization of politics. However, they do not solely account as the main grounds for the
emergence of this phenomenon. On the other hand, the need of political support as a
prerequisite for the judicialization of politics and the intentional delegation of public policy
making authority to judges by politicians do not explain the appearance of judicialization
of politics, let alone that of mega-politics, in authoritarian polities like Egypt,
161
Russia,
162163
an Thailand,
164
where “political support” is unlikely to be provided to courts
by politicians in power.
160
In chapter 3 of the thesis, I will provide further elaboration and consolidation of the argument that courts
are the main driving force leading to the judicialization of politics.
161
See Tamir Moustafa, Supra note 17.
162
See Armen Mazmanyan, Judicialization of Politics: The Post-Soviet Way, Oxford University Press,
163
.
164
See Duncan McCargo, supra note 8.
In Egypt, the judicialization of politics has been constantly and evidently manifested in the
SCC’s decisions. The SCC has managed to expand it powers and decide on the outcomes
of numerous social, economic and political controversies. It is argued that the SCC was, at
first, empowered by the controlling regime mainly for economic considerations related to
the objective of attracting foreign direct investment by providing credible commitment that
property rights would be protected through an independent process of judicial review.
165
However, the Court gained additional leverage with which it intervened in other
policymaking spheres, including civil and political rights and humanrights-related
controversies. Analysing the SCC’s decisions indicates that it served as a “dual-use”
institution. On the one hand, it has corroborated the regime’s fundamental economic
objectives and accommodated its political interests.
166
On the other hand, it served as the
most significant resort for human rights groups, opposition parties and political activists to
boost civil and human rights safeguards.
167
Furthermore, the scope of involvement in
crucial moral and political controversies extended to the collectiveidentity contentions like
the core question of the status of Shari’a rules as the primary source of legislation in
addition to various prominent questions related to religion.
168
The apparent tendency
towards the judicialization of politics in Egypt is consistent with, and actually provides an
empirical evidence in support of, the proclamation that in the “nonconstitutional” Arab
World, written constitutions can provide a ground work for possible limited constitutional
government.
169
Although these constitutions are perceived to have a relatively limited
165
Tamir Moustafa, Law versus the State: The Judicialization of Politics in Egypt. LAW & SOCIAL INQUIRY,
vol. 28, no. 4 at 885.
166
As for the economic interest of the regime, the Court, for example, supported the regime’s transition from
socialist-oriented economy to capitalism by striking down socialist-era legislation. As for the political arena,
the Court, for example, ruled that the Egyptian Security Courts constitutional and permanently delayed
issuing a ruling on the constitutionality of civilian transfers to military courts.
167
Tamir Moustafa, supra note 37.
168
Ran Hirschil, The Judicialization of Mega-Politics and the Rise of Political Courts, The Annual Review
of Political Science, 2008, at 104; Examples of these cases are the following: al-Mah. kamah al-Dustūrīyah
al-‘Ulyā [Supreme Constitutional Court], case no. 20, session of 4 May 1985, year 1; al-Mah. kamah
alDustūrīyah al-‘Ulyā [Supreme Constitutional Court], case no. 8, session of 18 May 1996, year 17.
169
See NATHAN J. BROWN. THE RULE OF LAW IN THE ARAB WORLD: COURTS IN EGYPT AND THE GULF,
CAMBRIDGE UNIVERSITY PRESS 1997.
effect in regard to imposing restraints on the exercise of the government power, they may
effectively contribute, with other mechanisms, to the establishment of some sort of
accountable government.
The embroilment of the SCC in fundamental political quandaries through a series of
decisive verdicts was also prominent in the transition period after the revolution of 2011.
The court is criticized for its plain intervention in pure political controversies “in a manner
that would have been unthinkable prior to the Revolution.”
170
The SCC empowered itself
and supported judicial despotism over core political questions simply through stating that
it is practicing no more than its judicial competence of the constitution interpretation. The
judicialization of pure politics by the SCC took part in a series of ever-escalating
constitutional crisis that could have been avoided if the Court embraced constitutional
silence, by which constitutional courts in other authoritarian regimes like Chile and Serbia
managed to create apolitical judicial culture to their respective regimes.43
B- Jurisdiction and Functions of administrative courts in Egypt
Prior to engaging with the cases manifesting the judicialization of mega-politics in
administrative courts, it is of paramount importance to briefly elucidate, first, the State
Council’s judicial competence according to its statute (law no. 47/1972) and the
constitution. Second, I depict roles and functions of administrative courts as influential
institutions interactive with other components of the society.
Egypt is a civil-law state that follows the Latin model of the judiciary structure; composed
of three main judicial bodies: ordinary courts, administrative courts, and at the top, one
constitutional court (the SCC). On the other hand, the Egyptian legal system embraces a
tripartite hierarchy of legal rules. First, the Constitution, which all other rules have to be in
170
Mohammad H. Fadel, The sounds of silence: The Supreme Constitutional Court of Egypt,
constitutional crisis, and constitutional silence, OXFORD UNIVERSITY PRESS, 2018, at 938. 43 Id. at 937.
conformity with. Second, legislative (statutory) rules: which are those enacted by the
legislature. Third, bylaws (regulations): which are detailed rules issued by the executive
branch’s ministries, agencies and departments. They have to comply with the two superior
categories of legal rules (constitutional and statutory ones).
Constitutional Review is exclusively entitled to the SCC by virtue of consecutive Egyptian
constitutions. Striking down statutory rules falls exclusively within the scope of the SCC’s
judicial review rather than any other judicial institution. The only ground for invalidating
a legislation is to be declared unconstitutional by the SCC. Accordingly, administrative
courts have no judicial review of any action of the legislature and not authorized to strike
down a legislation.
In 1946, the State Council (administrative judiciary) was established and entitled to limited
jurisdiction over certain administrative disputes.
171
In 1972, The State Council’s
jurisdiction was expanded to encompass all administrative disputes.
172
It has
comprehensive judicial review over actions and decisions of the executive’s agents and
departments. It was, at first, affiliated to the executive branch, but in 1984, it acquired
institutional independence by virtue of a legislative amendment and was declared an
“independent judicial authority” pursuant to the provisions of the 1971 constitution.
173
As for the functions of administrative courts, there used to be a widely accepted assumption
in comparative law literatures that democracy is a prerequisite for the emergence of judicial
power.
174
This is attributed to the hypothesis that courts in authoritarian polities are
perceived to be puppets, and often claws, in the hands of the controlling regimes that are
not likely to possess reasonable independence. Some scholars advocated this perception
claiming that “It is hard to imagine a dictator, regardless of his or her uniform or ideological
171
Law no.112/1946 on the establishment of the State Council.
172
Article 10 of Law no.47/1972 states that “The State Council has jurisdiction over … and all
administrative disputes.
173
Article 2 of Law no. 136/1984.
174
Tamir Moustafa, supra note 37 at 885.
stripe, inviting or allowing even nominally independent judges to increase their
participation in the making of major public policies.”
175
Recently, there has been a
recognition that even in highly-restricted political regimes, courts increasingly gain judicial
authority. The empirical study in such polities indicate that courts are not irrelevant to
political life. Rather, they perform various roles that are influential and interactive with
other political institutions of an autocratic state.
176177
In this regard, courts are perceived to
help regimes pursue significant objectives such as maintaining social control, attracting
capital, maintaining bureaucratic discipline, adopting unpopular policies, and enhancing
regime legitimacy.
178
In this regard, I argue that Egyptian administrative courts have been entitled relatively
extensive scope of judicial review in order to perform three fundamental roles: managerial,
economic and political. First, they provide significant means to boost discipline in the
immense bureaucratic machinery. Although a restrictive regime is likely to pay little
attention to safeguards of individual rights and basic freedoms, its need of an efficient
functioning of the entire administrative apparatus is apparent. Administrative courts
provide effective channels for reinforcing bureaucratic compliance and monitoring the
executive’s officials. In the 1970s, administrative courts’ competence was expanded to
“restore discipline to a rapidly expanding and increasingly unwieldy bureaucracy.”
179
Second, in 1972, administrative courts were entitled, pursuant to legislative amendment of
their statute, to comprehensive review over the executive branch’s agencies and
departments. Empowerment of administrative courts was in consistency with a more
overall strategic judicial empowerment tendency of the regime. It was deployed as an
economic motivation to entice foreign investors to establish their private investments. After
175
Tate, C. Neal. 1995. Why the Expansion of Judicial Power in THE GLOBAL EXPANSION OF JUDICIAL
POWER. New York Univ. Press, 1995at 28.
176
Tamir Moustafa and Tom Ginsburg, Introduction: The Functions of Courts in Authoritarian Politics,
177
, in LAW AND COURTS IN AUTHORITARIAN REGIMES, Annual Review of Law and Social Science, 2004 at
2.
178
See generally id.
179
Tamir Moustafa, Law and Courts in Authoritarian Regimes, 10 Annu. Rev. Law Soc. Sci. 2014. 281–99,
at 284.
Nasser era, the Egyptian regime was transformed from a state-monopolized economy to a
liberal one. Accordingly, there was genuine need of direct investments especially that of a
large scale. Administrative judiciary provided, along with the SCC, authentic legal security
for both national and international investors, who were totally aware of the oppressive
process of capital nationalization that took place during Nasser’s era. Alongside with other
constitutional and legal guarantees, administrative courts have been serving as a substantial
check on the executive’s potential encroachment on property rights.
180
Third, consecutive Egyptian regimes have often deployed administrative courts to bolster
their political legitimacy. In Egypt, some scholars contend that law primarily serves as an
efficient and disciplined exercise of state power- a feature described as “rule by law.”
181
One of the main characteristics of this feature is to constantly maintain the appearance of a
“liberal” and “democratic” state, in which the judiciary is, in legal terms, capable of reining
in the executive authority via practicing judicial review. Administrative courts were granted
comprehensive review of the executive’s actions to boost and enhance the image of
effective checks and balances to sustain the regimes’ political legitimacy.
Chapter II. Forms of the judicialization of mega-politics in the Egyptian
State Council:
This Chapter analyses a number of remarkable administrative courts’ judgments that
apparently involve judicialization of mega-politics. Given the fact that these courts issue
thousands of verdicts all over the state, it is important to define certain criteria to distinguish
judgments that manifest judicialized mega-politics. In my view, a given verdict highlights
180
Tamir Moustafa, supra note 37 at 885.
181
Tamir Moustafa, supra note 51, at 282.
the judicialization of mega-politics when it possesses one or more of the following
characteristics: 1) narrows the doctrine of sovereignty acts, considered as one of the
cornerstone prerogatives of the executives because it falls outside the realm of judicial
review. 2) encompasses explicit judicial law-making concerning pivotal matters, as an
intervention of the judiciary in the substantial prerogative of the legislatures i.e. enacting
law. 3) involves adoption or abolition of a public policy related to substantial social,
economic, or political questions. All these situations represent the transfer to the judiciary
of the public policy-making authority, previously held by legislatures and executives.
It should be emphasized that the following three forms of judicialization of mega-politics
should not be subject to binary-model of assessment; either representing constantly
excessive expansion of judicial review or permanently falling within the legitimate scope
of judicial competence. Rather, all forms of judicialization of mega-politics ought to be
assessed on a case-by-case basis according to the facts of the case, the nature of the actions
in question, and the relevant constitutional and statutory framework. Accordingly, in the
following chapter I analyze each verdict separately to indicate the legal grounds and
judicial techniques deployed by administrative judges to expand the conventional realm of
judicial control over the executive’s actions whether relevant to crucial social, economic or
political matters. Besides, I evaluate the judgment in order to indicate whether the court
trespassed borders of judicial control and encroached on the jurisdiction of the executive
and/or the legislature, or the court exercised its competence in consistency with the
constitution without infringement of another authority’s jurisdiction.
It should be pointed out that the suggested criteria for determination of forms of the
judicialization of mega-politics are basically related to the legal substance of the following
judgments rather than their actual political implications. These criteria are contingent upon
the constitutional and legal bases of these verdicts engaging in core social, economic and
political matters. Hence, it is outside the scope of this research to trace social and political
outcomes of these judgments. Besides, it is beyond its scope to evaluate values, social
backgrounds, ideological approaches of judges. Research scope is limited to engaging with
the legal grounds, judicial techniques and legal reasoning of judges in establishing their
jurisdiction over various disputes and consequently judicializing mega-politics.
A- Narrowing the doctrine of sovereignty acts:
The “Acts of Sovereignty” doctrine refers to a set of actions performed by the executive
branch that are exempted from judicial review. The doctrine has been explicitly stated in
all the statutes regulating the State Council. Law no.112/1946 that established the Egyptian
State Council provided for the exclusion of sovereignty acts from administrative courts’
judicial review.
182
The same doctrine is embraced by all consecutive statutes regarding the
State Council including the current law in force no. 47/1972 which regulates the structure,
organization and competence of the State Council.
183
However, none of these laws provides
a definition of the acts of sovereignty.
A number of approaches attempt to set a criterion for determination of what is meant by the
acts of sovereignty in order to differentiate them from ordinary administrative acts subject
to judicial control. One approach adopts the “political motive” criterion, which relies on
the motive behind the executives’ actions. The action is considered an act of sovereignty
when the motive that induced executive authority to take it is “political” and hence falls
outside judicial control. Otherwise, it is an administrative action when the motive behind it
is administrative, and consequently it is subject to judicial review. This approach was first
introduced by the French judiciary which chose not to engage in matters of political nature
and implications in order to maintain its authority of judicial review over other
governmental acts.
184
This approach was heavily criticized for being inaccurate in
determining the acts of sovereignty, especially as there are plenty of governmental actions
that have both political and administrative motives. Second, this criterion enables the
182
Article 6 of law no.112/1946.
183
Article 7 of law no. 9/1949, article 12 of law no. 165/1955, article 12 of law no. 55/1959.
184
See MOHAMMED R. ABDELWAHAB, Al-Kada’ Al-Idari (ADMINISTRATIVE JUDICIARY), Arabic, Dar
Elgamaa El-gadida, 2011 at 233 (Explaining the approach and elucidating its aspects of criticism). 57 See
id.
executive branch to exclude judicial review over administrative actions by declaring there
is a political motive for performing these actions when in fact there is not.57
A second approach argues for the “nature of act” criterion. Since both administrative and
sovereignty actions are taken by the executive branch, an objective criterion contingent
upon the nature of the act itself is helpful in distinguishing acts of sovereignty.
185
According
to this criterion, the executive authority performs two main functions, governmental and
administrative. The actions taken by the executive branch as “a government” authority are
considered acts of sovereignty. The “governmental” function is apparent in all major
actions taken by the state as a political unified entity as well as decisions protecting its
supreme national interests.
186
On the other hand, When the executive authority acts as an
“administrative” authority, its actions are therefore administrative and subject to judicial
review. The administrative function of the executives is what relates to the daily application
of law and the relations between individuals and local and central departments of the
executive authority.
187
This approach is criticized for ambiguity. It is incapable of providing
a clear and decisive tool of differentiating between the two main functions of the executive
as they are overlapping in many actions.
A third approach argues for a “judicial list criterion” for determination of sovereignty acts.
As the doctrine of sovereignty acts was basically created by the judiciary, resorting to
judgments would clearly reveal the nature and forms of these acts. Jurists analyze verdicts
related to acts of sovereignty to classify them according to the judges’ perspectives into one
inclusive list. According to this approach, acts of sovereignty are those performed by the
executive power and not subject to if judicial power control if the court so decides.
188
185
See Justice KHALED HAMMAD, Hodud al-reqaba al-qada’ea ala soltat al-idara al-taqdiria,
(BOUNDARIES OF JUDICIAL REVIEW OF THE ADMINISTRATION’S DISCRETIONARY POWER), Arabic, 2nd
Edition, 2013, at 427 ((providing plenty of cases as examples of the approach and indicating its aspects of
criticism).
186
MOHAMMED R. ABDELWAHAB, supra note 56 at 236.
187
WAHEED RAAFAT, Reqabat al kada’ lea’mal al-dawla (JUDICIAL REVIEW OF THE STATE’S ACTIONS),
Arabic, at 142.
188
SOLIMAN TAMAWI, Al-Kada’ Al-Idari (ADMINISTRATIVE JUDICIARY), Arabic, 1967, at 421.
Based on reviewing judgments of the State Council, Law scholars classified sovereign acts
into four main groups: 1) acts related to foreign affairs and international relations with other
countries 2) acts related to war actions 3) acts related to safety and internal security of the
state 4) acts related to the relationship between executive and legislative authorities.
189
Jurisprudence provides some examples of the State Council case-law since its
establishment for each of the four categories as following.
4) Acts related to foreign affairs:
Actions of the executives related to foreign affairs are considered acts of sovereignty. This
include all actions pertaining to negotiations with other states, concluding and signing
international treaties and conventions. Also, actions related to international relations with
other states or international organizations falls in the realm of sovereignty acts.
Establishment or cutting diplomatic relations with a state or an international organization
and joining, withdrawal from an international entity are examples of actions performed by
the executive branch as a “government” authority and accordingly are exempted from
judicial review.
The Egyptian State Council declared non-competence over the presidential decree to
conclude the 1979 Peace Treaty with Israel for being an act of sovereignty.
190
In addition,
administrative courts declared that they lack jurisdiction over the application for cutting
diplomatic relation with Germany.
191
The State Council adopted the same approach and
held that it has no jurisdiction to order the executive branch to close the Israeli embassy
189
Justice RAMADAN S.NEGM, Dur al-kadaa al-idari fi reqabat al-sulta al-taqdiria lel-idara, (ROLE OF
ADMINISTRATIVE JUDICIARY IN REVIEW OF THE ADMINISTRATION’S DISCRETIONARY POWER), Arabic, Dar
Al-Nahda Al-arabia, 2016, at 118 ((providing plenty of cases as examples of the approach)
190
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 287, session of 1 May. 1979, year
33 (Egypt).
191
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 1202, session of 29 May. 2007,
year 61 (Egypt).
and expel the ambassador
192
and the same for Turkish embassy and ambassador and
considered all these actions as sovereignty acts.
193
5) Acts related to war actions:
Actions pertaining to war are considered acts of sovereignty that are immune from judicial
control. Declaration of war, decisions related to military operations, and seizure of ships by
force in the time of war are examples of these actions. The Egyptian State Council ruled
that inspection of ships in war time falls in the realm of sovereignty acts as it is connected
to military procedures taken by the state for its security.
194
Similarly, it ruled that it has no
jurisdiction over the order by the Minister of Interior to police officers to fight the British
troops which attacked police stations after revoking the 1936 Treaty.
195
Following the same
approach, the State Council ruled that the decree of acquisition of a piece of land, belonging
to the Egyptian territory, by the Army Commander is not considered an act of sovereignty
because it is neither related to war actions nor a defending the territory of the state. As the
challenged decree is issued in regard to a regular administration of the Egyptian armed
forces, it is considered an administrative act that is subject to the review of administrative
courts.
196
6) Acts related to safety and internal security of the state:
The third group of actions considered as acts of sovereignty are those related to safety and
internal security of the state. Declaration of martial law and declaration of the “emergency
192
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 78330, session of 26 Oct. 2019,
year 69 (Egypt).
193
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 17701, session of 26 Oct. 2019,
year 69 (Egypt).
194
MOHAMMED R..ABDELWAHAB, Supra note 56 at 247.
195
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 13, session of 19 Jan. 1956, year
7 (Egypt).
196
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1942, session of 25 Dec.
1982, year 27 (Egypt).
state” are one of the most evident examples of these actions. Nevertheless, as this group of
actions are more directly related to protection of individual rights and freedoms, courts
have attempted to limit the scope of sovereignty acts related to internal security of the state.
The Egyptian State Council ruled that the presidential decree of declaration of the
“emergency state “is immune form judicial control for being an act of sovereignty as it is
taken by the executive as a government authority for internal security of the state. However,
the decisions and measures taken by the executive to implementation of the state of
emergency are not considered acts of sovereignty and shall be subject to review of
administrative courts to determine its compliance with law.
197
These measures include
detention, seizure and confiscation of property, and revoking the license of newspapers.
198
4) Acts related to the relationship between executive and legislative authorities:
Actions of the executives in connection with the legislative authority, especially measures
and decisions prescribed by the constitution and election statutes are considered acts of
sovereignty. They comprise the decisions calling for holding or adjourning parliamentary
elections as well as dissolution of the parliament. Draft laws submitted by the executive to
the legislature in addition to the promulgation of law are also beyond judicial review.
The State Council ruled that the presidential decision calling for holding the parliamentary
elections is an act of sovereignty that falls outside judicial control.
199
It also held that the
presidential decision calling for referendum on constitutional amendments is an act of
sovereignty.
200
197
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1438, session of 6 Mar.
1983, year 31 (Egypt).
198
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 3123, session of 22 Dec. 1981,
year 35 (Egypt)
199
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1939, session of 12 Dec.
1987, year 30 (Egypt).
200
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 26206, session of 23 May.
2005, year 59 (Egypt)
The previously illustrated list of sovereignty acts, classified and categorized by jurists, has
been constantly embraced by administrative courts for decades. The court of Administrative
Justice (CAJ) ruled in many cases that
Sovereignty acts are those actions taken by the government as a
governing authority, not an administrative one. They include actions
of the government in relationship with the two houses of the
Parliament, foreign affairs with other countries, defending public
security from internal disturbance or an external enemy. The
criterion of sovereignty acts is an objective one contingent upon
the nature of the actions themselves not the incidental circumstances
surrounding them.
201
In my view, I agree with the judicial list criterion of sovereignty acts. However, two points
have to be put into consideration. First, the Egyptian constitutions prohibit exempting any
administrative action or decision from judicial control.
202
As acts of sovereignty are
exercised by the executive, they have to be perceived as an exception of the constitutional
prohibition to exclude administrative acts from judicial control. Therefore, the scope of
sovereignty acts has to be largely narrowed to comprise only the pure political actions that
are not justiciable according to their nature. They are so considered if the judiciary has no
credible tools to legally assess these acts and decide on whether they are in conformity with
the constitutional and legal rules. For instance, governmental decisions of international
recognition of a new state, cutting diplomatic relations with another state, or declaration of
war are considered non-justiciable actions because judiciary does not acquire
comprehensive and reliable knowledge and tools to assess their legality or constitutionality.
Conventional legal grounds of assessment of administrative actions like reasonableness,
legitimacy, necessity, or proportionality would be considered invalid and inappropriate if
utilized by courts in order to consider these actions. Second, the judicial list of sovereignty
201
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 587, session of 26 Sep. 1951,
year 5 (Egypt)
202
See Article 68 of the Egyptian Constitution of 1971 and article 97 of the 2014 constitution.
acts develops through time and varies according to the constitutional framework on one
side and the degree of political freedom on the other side. The more constitutional rights
are guaranteed and genuinely protected, the less acts are perceived to be sovereignty acts.
As previously elaborated, acts of sovereignty are a set of actions performed by the executive
branch that are exempted from judicial review.
203
In the past two decades from 2000 to
2020, administrative courts have narrowed the doctrine of sovereignty acts, especially
regarding the two categories of 1) acts related to foreign affairs and 2) acts related to the
relationship between the executive and the legislature. Some prominent governmental
actions that used to be considered as sovereignty acts according to the conventional judicial
list are subject to judicial review and perceived as administrative actions. The cases in
which administrative courts narrow the scope of sovereignty acts manifest a form of
judicialization of mega-politics because sovereignty acts are considered one of the
cornerstone prerogatives of the executives and are very often of outright political
appearance. In these cases, although the governmental actions in question obviously
belonged to Egyptian foreign affairs and international relations with other countries, and in
other instances to the relation with the legislative branch, the State Council courts deviated
from the conventional characterization of these actions as sovereignty acts and subjected
them to judicial review. This represents a noticeable redrawing by administrative courts of
the boundaries between the judiciary and the executives through expanding the scope of
judicial review. As I stated earlier, judicialization of mega-politics ought to be assessed on
a case-by-case basis according to the facts of the case, the nature of the actions in question,
and the relevant constitutional and statutory framework.
I examine below four cases manifesting the judicialization of mega-politics through
expansion of judicial review to include some acts formerly perceived as sovereignty acts.
203
As stated earlier, law scholars classified sovereign acts into four main groups: 1) acts related to foreign
affairs and international relations with other countries 2) acts related to war actions 3) acts related to safety
and internal security of the state 4) acts related to the relationship between executive and legislative
authorities.
The four cases are examined in a chronological order. However, it should be noted that
cases no. 1, 2 and 4 are related to narrowing the doctrine of acts of sovereignty pertaining
to some acts related to foreign affairs. Case no. 3 indicates limiting the doctrine of
sovereignty acts in regard to the relationship between the executive and the legislature.
Case 1. Natural Gas Export to Israel (2008):
204
Ibrahim Yousry, a former Egyptian ambassador, filed a lawsuit before the Court of
Administrative Justice (hereinafter referred to as the CAJ) seeking to declare null and void
the Minister of Petroleum and Mineral Resources Decree No.100/2004 and all the affiliated
international agreements and memorandums of understanding. He claimed that Egypt and
Israel signed a memorandum of understanding, by which Egyptian authorities promised to
export natural gas to Israel at an extremely lower price (that does not exceed 1.25 USD per
million British Thermal Units) than its real market value (exceeding 9 USD per million
British Thermal Units). The plaintiff added that according to this memorandum, the
Council of Ministers delegated the Minister of Petroleum and Mineral Resources to
negotiate and conclude natural gas supply contracts with a private company called “East
Mediterranean Gas Company,” which in turn would export natural gas to
Israel.
The CAJ revoked the aforementioned decree of the Minister of Petroleum and Mineral
Resources and all the affiliated acts of the government related to the export of natural gas
to Israel. First, the Court declared that the challenged decrees and actions of exporting
natural gas to Israel by the government are related to the regulation and exploitation of a
significant national resource: natural gas. Accordingly, these actions are not deemed a
matter of international relations, and consequently an act of sovereignty, over which the
court may lack jurisdiction.
204
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 33418, session of 18 Nov. 2008,
year 62 (Egypt).
The Court then established its decision on two main pillars. On the one hand, the challenged
decrees and actions of the government were not initially submitted to parliament for
ratification. This abstention constitutes a gross infringement of the constitutional obligation
imposed over the executive authority whose actions related to the natural resources are
subject to the parliamentary scrutiny by virtue of article 123 of the Egyptian Constitution.
205
On the other hand, the Court stated that the judiciary had always possessed the right to
review the “objective” of the government’s actions to verify that they pursued the public
interest of the people. The court noticed that executive authorities did not publish the
challenged ministerial decree in the Official Gazette, although bound to do. In addition, the
secrecy and simultaneous unjustified velocity that wrapped all the measures and procedures
of the executive authority contradict transparency and hence raise doubts about the real
objective of the government.
The aforementioned judgment was challenged before the Supreme Administrative Court
(hereinafter referred to as the SAC) which upheld it in its substance.
206
However, it split
the subject matter of the lawsuit into two main constituent parts. On the one hand, it stated
that engagement in international and diplomatic relations with Israel is, in itself, an act of
sovereignty that goes beyond the scope of judicial review. On the other hand, the quantity,
prices and other conditions of natural gas export contracts are subject to the scrutiny of
administrative judiciary. The SAC held that the executive authority is obligated to set a
particular mechanism for periodic revision of the conditions of the export transaction
especially those related to the quantities and prices of the natural gas. It is also forbidden
for the executive to agree with the other contracting party on a maximum price for export.
205
Article 123 of the Egyptian Constitution states that “The rules and procedures for granting concessions
relating to the investment in the sources of natural wealth and in public utilities shall be determined by law”
206
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], cases no. 5546, 6013, 7975, session
of 27 Feb. 2010, year 55 (Egypt).
The judicialization of mega-politics is apparently manifested in this lawsuit as on the one
hand, the judiciary narrowed the realm of sovereignty acts, declaring that the only matter
that goes beyond judicial review is the executive authority’s approval to export natural gas
to Israel i.e. the decision to have international commercial relations with Israel. On the
other hand, the State Council deeply engaged in setting the general conditions,
requirements and framework of the Egyptian public policy regarding exploiting one of its
scarce natural resources: natural gas. The judiciary substantially contributed in making a
crucial public policy, which reveals the judicialization of mega-politics in this case.
In my perspective, administrative courts have been always creating their own judicial
techniques in order to immensely expand judicial review of the executive’s actions and
decrees. These instruments facilitate the courts’ intrusion in making public policy decisions
and the judicializing of mega-politics. One of these techniques is what we may term
“dispute fragmentation.” While hearing a case that may be claimed to fall outside the scope
of judicial review, the court divides the subject matter of the dispute into two or more main
parts and declare its competence over the most significant part. This technique is based on
the theory of “detachable decisions,” initially invented by the French State Council and
then adopted by the Egyptian administrative judiciary. The theory addresses any complex
action of the executive that comprises multiplicity of integrated and intertwined decisions,
some of which fall within the ambit of judicial review and the other decisions do not.
In this case, the State Council split the subject matter of the dispute i.e. the complex actions
of the executive, and declare its judicial review over the separable decisions subject to its
scrutiny. The SAC explicitly adopted this technique in its ruling on the natural gas export
to Israel. It ruled that it has no competence to review the sovereignty act of the Egyptian
government to establish international commercial relations with Israel but it has jurisdiction
to review the details and conditions of the concluded contracts. The legal reasoning of the
SAC is praiseworthy because although this case deals with an international agreement
between Egypt and Israel, the SAC delicately differentiated between the “international”
political aspect of the agreement- the decision to establish ordinary relations with Israel on
one side and, on the other side, the “commercial” nature of the agreement- its relevance to
natural gas as a scarce natural resource. Accordingly, the Court considered the former
aspect as an act of sovereignty and the extended its scrutiny to the latter. It considered that
the constitutional obligation of the executives to make the best use of the state’s national
economic resources is what really counts and hence, the degree to which the executives
fulfil this obligation has to be subject to judicial control.
This judgment indicates that the technique of dispute fragmentation is a very fruitful tool
of judicial review. First, it enables the judiciary to extend its scope of review to disputes
whose international element is not the core of the subject-matter. Second, amplification of
the ambit of judicial review to such disputes via this technique serves as an effective
mechanism to reveal information about crucial public policies that lack transparency in all
its aspects.
Case 2. Retaliation for Egyptian victims of 1967 War Crimes (2008):
207
A group of political activists including Wahid Fakhry, the Secretary-General of the
“Socialist Arab Egypt Party”, filed a lawsuit asking the court to issue a verdict obligating
Egyptian authorities, especially the Ministry of Foreign Affairs, to ask the Israeli
government to extradite its citizens accused of war crimes, during 1956 and 1967 wars, to
be adjudicated before the Egyptian Criminal Courts. In addition, the court was asked to
obligate Egyptian government to recourse to the UN organs, especially the Security
Council, to issue a resolution convicting the Israeli perpetrators of war crimes during the
aforementioned wars and establishing a special international criminal tribunal for their
adjudication.
The CAJ accepted the case and ruled that Egyptian government may fully accomplish all
the required actions to guarantee retribution, against Israeli military officers, for war crimes
207
Mah-kamah al-Qadda’ al-Idāry [Administrative Judicial Court], case no. 7691, session of 4 Mar. 2008,
year 55 (Egypt).
committed against Egyptian civilians and prisoners of wars. The Court assured that both
human rights to life and bodily integrity are embedded in the consecutive Egyptian
constitutions and international agreements. Once these rights are violated, the state shall
provide legal protection for its citizens not only within its municipal judicial system, but
also at the international level. Moreover, the court stated that Israeli troops committed
various forms of war crimes including mass killing of war prisoners, inhumane acts of
torture and murder of Egyptian civilians in Sinai Peninsula. These actions are considered
imprescriptible offences that constitute gross violations of Geneva Conventions.
Accordingly, all branches of the Egyptian government, especially the Ministry of Foreign
Affairs, are obliged to take legal and administrative procedures for determination of the
committed war crimes, their perpetrators, and victims. Then, they have to recourse to the
international community in order to exhibit these crimes as violations of international law
and attain global condemnation. The verdict asserted that Egyptian authorities are legally
bound to enable Egyptian victims of war crimes to sue the Israeli war criminals before
national criminal courts and to pave the way of their adjudications before international
courts. The Court asserted that:
The Egyptian authorities are responsible for citizens’ protection
whether municipally or in case of infringement of their personal
freedoms and bodily integrity rights by an aggressor state. Abstention
from seeking implementation of the Geneva Conventions and other
international agreements to such infringement is considered illegal. In
addition, such abstention hurts the Egyptian public sentiment that
appreciates the prominent role of wartime prisoners as well as the
entire armed forces in performing the sacred obligation of defending
their country. Cooperation among executives and all relevant
institutions to obtain the rights of wartime prisoners nationally and
internationally is legally required.81
The CAJ in this case extensively narrowed the scope of sovereignty acts although the
dispute was genuinely connected to the Egyptian international relations with Israel, the UN
and international tribunals. As previously illustrated, judicial precedents demonstrate that
acts related to foreign affairs with other states and international organizations are inherited
in the judicial list of acts of sovereignty. However, the CAJ adopted a very restrictive
approach of determination of acts of sovereignty related to the State’s foreign affairs. The
Court perceived that the constitutional duty of Egyptian authorities to guarantee the two
human rights to life and bodily integrity of the Egyptian people imposes a constitutional
obligation to take all the required actions to guarantee retribution, against Israeli military
officers, for war crimes committed against Egyptian civilians and prisoners of 1954 and
1967 wars.
Analyzing the legal grounds of this verdict and that of the coming two cases (cases no.3
and 4) clearly indicates that the constitutional framework is one of the main pillars on which
administrative courts expand their jurisdiction over executive actions that was traditionally
perceived as sovereignty acts. Successive Egyptian constitutions has
تاطلس نم هكلمت امب ةيلودلا تايقافتلااو فينج تايقافتا ماكحأ لامعإ نع ةرادلإا ةهج عانتما
81
:cibarA ni sdaer lanigiro ehT اهرابتعاب
ةيصخشلا مهقوقحب ةقلعتملا كلت ةصاخ مهقوقح ىلع ةيبنجأ ةلود نم ءادتعا ثودح لاح وأ لخادلا يف ءاوس ،نينطاوملا ةيامح ىلع ةماوقلا
ىرسلأا ءلاؤه ردقي يذلا ،نييرصملل ماعلا روعشلاب رشابملا هساسم نع لاضف ،ةيعورشملل افلاخم كلذك لاحلاو اهكلسم نوكي ،ةيدسجلاو
مو تاهجلا نم يعدتسي اسدقم امازتلا لثمي يذلا نطولا نع عافدلا يف زرابلا مهرود اهب نيلماعلا نييندملاو ةحلسملا تاوقلا مهع
ايلخادو ايلود مهيوذو ىرسلأا قوقح ءاضتقلا نواعتلا ةلصلا تاذ تاسسؤملاو ةيرادلإا
included robust written provisions on safeguarding basic rights and freedoms in addition to
articles specifically prescribing the jurisdiction and functions of the main state organs.
These two categories of articles have been perceived and employed by administrative
courts as the focal point of extending scope of judicial review. The objective of
strengthening and consolidating the governmental compliance with constitutional
protection of rights enables administrative courts to stand as a vigorous safeguard of these
rights. Based on these constitutional provisions, administrative courts define, on the one
hand, the constitutionally protected ambit for individuals to enjoy and practice their rights
and, on the other hand, the obligations of the executive in order to guarantee these rights.
During this process, the State Council involves in pure crucial political controversies and
hence the judicialization of mega-politics is highly manifested.
In my view, this judgment entails encroachment on the executives’ prerogative of
sovereignty acts. The CAJ excessively interpreted the constitutional obligation of the
executive to protect human rights to life and bodily integrity and turned a blind eye to the
fact that the dispute is genuinely related to foreign affairs although the latter is the core
substance of the dispute not the former. Taking legal actions to guarantee retribution,
against Israeli military officers, for war crimes committed against Egyptian civilians and
prisoners of wars is, first and foremost, contingent upon certain political international
considerations. The executive branch, not the judiciary, is the only authority aware and
capable of weighing these considerations in order to determine which measures ought to
be taken and their proper timing for maximizing effectivity both internationally and
domestically.
Case 3. Revoking presidential decision calling for holding the parliamentary
elections (2013):
208
As previously illustrated, administrative courts case-law consider the presidential decision
calling for holding the parliamentary elections as an act of sovereignty.
209
It falls, according
to the conventional judicial list of sovereignty acts, outside judicial control because it is
related to the relationship between the executive and the legislature. Nevertheless, in 2013
the CAJ struck down the presidential decree of initiating the parliamentary elections and
inviting the voters to cast their votes. The judgment implication was so immense that it
suspended the entire electoral process all over the country. In this case, the State Council
got embroiled in a significant political controversy previously perceived to be immune from
judicial review, and went as far as to judicialize acts at the core of the political process.
The CAJ founded its verdict on the fact that the challenged decree lacks a formal
requirement stipulated by the constitution of 2012, in force at the time of the judgment. The
208
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 28560, session of 6 Mar.
2013, year 67 (Egypt).
209
See e.g., Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 1939, session
of 12 Dec. 1987, year 30 (Egypt).
new constitution, after the revolution of 2011, provided that the President must obtain the
approval of the Cabinet before issuance of such decision. The court illustrated that the 2012
Constitutional framework established a mixed system of government (presidential and
parliamentary) on the contrary of the previous constitution of 1971 which embraced a
presidential one. According to the Constitution of 2012, the President became
constitutionally bound, with few exceptions, to possess the approval of the Cabinet before
taking numerous measures as part of his constitutional authority. The presidential decision
calling for holding the parliamentary elections is one of these actions in which the President
shares its authority with the Cabinet.
210
In my perspective, conceiving the outcome of the verdict would falsely lead to think that
the State Council ignores precedents which consider the acts related to the relationship
between the executive and the legislature as sovereignty acts. Nevertheless, this verdict
represents a new approach of administrative courts pertaining to sovereignty acts. This
legal approach claims that the constitutional framework in force is vital in determining
which acts to be considered sovereignty acts. According to this approach, the judiciary
possess jurisdiction over executive actions, although formerly perceived as sovereignty
acts, if the constitution provides for formal or substantive requirements of these actions.
The role of the judiciary is to verify the compliance of the executive to these conditions
whether in the form of procedural stipulation for taking such acts or substantive
requirements pertaining to the subject-matter of the actions.
In my view, this approach is laudable because first, it attempts to narrow the doctrine of
sovereignty acts based on valid constitutional grounds. As a civil-law state, the provisions
of constitution that specifically determines the jurisdiction and functions of the main state
organs, including those on the jurisdiction of the President, must be given imperative
210
It is worth mentioning that the implementation process of this judgment started immediately on 7 March
2013, one day after its issuance. The Higher Committee of Elections issued its decision no.20/2013
declaring the suspension of the parliamentary election procedures all over the state84.
connotation when interpreted. They are not stated in the constitution in vain, Consequently,
when the constitution impose certain constrains on the executive in taking an action, they
must be adhered to. The judiciary is the main organ entitled to assure that constitutional
constraints and limitations are obeyed by the executive. Second, the State Council approach
remarkably boost the rule of law which stipulates that the government as well as individuals
are accountable under the law. The compliance of the executive branch to constitutional
requirements is fundamental to promote accountability of the government to law.
Exempting such actions from judicial review despite the constitutional framework which
stipulates procedural or substantive conditions would enable the executive branch to evade
substantial form of accountability i.e. judicial control.
Case 4. The Egyptian Saudi Maritime Border Demarcation Treaty (2016):
211
The State Council verdict on the Egyptian-Saudi maritime border demarcation treaty,
known as the case of “Tiran” and “Sanafir” islands, is perceived as a historic sentence that
represents the extent to which the State Council has been expanding its jurisdiction in the
realm of Egyptian foreign affairs. On April 10th 2016, Each of Ali Ayoub and Khaled Ali,
two lawyers and political activists, separately filed two lawsuits before the CAJ demanding
annulment of the delimitation of maritime boundaries agreement between Egypt and Saudi
Arabia. Both lawyers claimed that this agreement implied a waiver of the two islands to
Saudi Arabia in violation of article 151 of the Egyptian Constitution of 2014 which
prohibits ceding any part of state territories. They also claimed that the challenged
agreement infringes all previous conventions that considered the two islands as part of the
Egyptian territory. They emphasized that Egypt has always explicitly exhibited its
sovereignty over the two islands for decades through dispersing military troops and police
officers as well as administering the islands via various decrees and executive decisions.
211
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 43866, session of 21 Jun. 2016,
year 70 (Egypt).
After combining the two cases to be settled by one sentence, the CAJ declared null and
void the governmental act of signing the delimitation of maritime boundaries agreement
between Egypt and Saudi Arabia in 2016, which includes ceding of “Tiran” and “Sanafir”
islands to the latter. The Court traced the change in constitutional framework regarding
concluding international agreements in the consecutive constitutions of 1971, 2012 and
2014. Then, it established its ruling on the new constitutional framework provided by the
2014 constitution. It includes explicit prohibition of ceding any part of Egyptian territories
by virtue of article 151 of the Egyptian Constitution of 2014.
212
The Court affirmed that the
constitution defined the scope of the executive branch’s “prohibited jurisdiction” in the
international agreements domain. The constitutional prohibition of executive authority to
cede any part of the territory is absolute and thus cannot be eluded under any circumstances
or justifications. This forbiddance emanates from the territory’s sanctity, which necessitates
legal and judicial protection.
The Court refuted the allegation that the challenged governmental action is an “act of
sovereignty” as it belongs to the international relations domain and thus falls outside the
scope of judicial review. The verdict emphasized that the prerequisite for any international
affairs action to be considered an “act of sovereignty” is compatibility with the Egyptian
constitution. Infringing constitutional provisions entitles the judiciary to revoke any
unconstitutional governmental action or decision. Accordingly, the main basis on which the
court declared its jurisdiction over the dispute, despite being related to an international
agreement with another state, is the constitutional prohibition imposed on the executives to
cede any part of the territory.87
Representatives. Such treaties shall acquire the force of law following their publication in
accordance with the provisions of the Constitution.
Voters must be called for referendum on the treaties related to making peace and
alliance, and those related to the rights of sovereignty. Such treaties shall only be ratified
after the announcement of their approval in the referendum.
212
Article 151 of the Egyptian Constitution of 2014 states that
The President of the Republic shall represent the State in its foreign relations and conclude
treaties and ratify them after the approval of the House of
In all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which
results in ceding any part of state territories.
87 It is important to point out that the Supreme Administrative court upheld the judgment of the Court of
Administrative Justice and refuted the appeal of the Egyptian government in its judgment on the case no.
74236, session of 16 Jan. 2017, year 62 (Egypt). The SAC re-emphasized the same legal grounds of the CAJ
and added additional ones. For further elaboration of the grounds of this verdict, see, Abouelfetouh
ElSammak. To politicize or depoliticize, is that really the question of administrative adjudication?: A study
of the state council judicial interpretation in Egypt. 2019. American University in Cairo, Master's Thesis.
AUC Knowledge Fountain, (He elucidate one of the main grounds of the verdict by stating that:
The court asserted that …. the traditional interpretation of the acts of sovereignty as a
theory should be replaced by a new one, one that reflects a consistent understanding of
the recent constitutional amendments and its effect on the legal system as a whole. The
judgment reasoning asserted on the transcendental value of the people's revolutions of
January 25th and June 30th, that implied new constitutional reforms leading to a new
legal system that changed the preconception of the Separation of Powers concept,
manifested in the great value restored to the people in exercising their right to participate
in the political, social and economic life in Egypt. Henceforward, the legal interpretation
has to respond to this understanding, which is introduced by the recent constitutional
amendment affecting the foundations of the Egyptian legal system.
The Court asserted that Egypt has always manifested its sovereignty over the two islands
and effectively implemented its municipal statutes and executive regulations. Moreover,
Egyptian police troops have always existed on the land of the two islands. The two islands
have been part of “Strategic Areas of Military Significance” as declared by virtue of the
Egyptian Minister of Defense Decree No. 367/1986. The court concluded that:
Undoubtedly, the two islands of “Tiran” and “Sanafir” are Egyptian
lands and part of the Egyptian territory, that lies within the Egyptian
State frontiers. Egypt has always practiced constant sovereignty
over the two islands. They have always been subject to the Egyptian
statutes and regulations. The Egyptian sovereignty over the two
islands is completely attained according to the international
judiciary and jurisprudence criteria. Consequently, ceding these
islands is constitutionally forbidden by virtue of the last paragraph
of article 151 of the constitution. As a result, the governmental act
of signing the delimitation of maritime boundaries agreement
between Egypt and Saudi Arabia in April 2016, which includes
ceding of the two islands to the latter on the allegation that they lie
in the Saudi territorial waters, constitutes a gross violation of the
Egyptian Constitution and thus shall be declared null and void.
Concealment of the unconstitutional waiver of the two islands in the
form of an international agreement for maritime boundaries
delimitation does not render it legitimate.88
In my opinion, the Court of Administrative Justice adopted the same approach as the
previous sentence on the declaration for holding parliamentary elections (case no.3).
Whenever there are constitutional conditions for practicing certain executive competence,
administrative courts possess jurisdiction to review the adherence to these conditions and
the plea of sovereignty acts would not be acceptable. As previously stated, this approach
يربلا ميلقلإا نمض نم ةيرصم ضرأ ريفانص ةريزجو ناريت ةريزج نم لاك نأ هب عوطقملا نم The original reads in Arabic
88
نيناوقلل ناتريزجلا عضختو ،ةرمتسمو ةمئاد ةفصب نيتريزجلا ىلع ةدايسلا رصم تسرام دقو ،ةيرصملا ةلودلا دودح نمض ناعقتو ،رصمل
كحب امازتلا رظحي كلذل اعبتو ،نييلودلا ءاضقلاو هقفلا يف ةرقتسملا ريياعملل اقبط ةققحتم اهيلع رصم ةدايس نأ امك ،ةيرصملا حئاوللاو ةداملا م
(151نيب ةيرحبلا دودحلا ميسرت ةيقافتا ىلع عيقوتلا نم ةيرصملا ةموكحلا لثمم هب ماق ام نوكي مث نمو ،امهنع لزانتلا يلاحلا روتسدلا نم )
ةكلمملاو رصم ليربأ يف ةيدوعسلا ةيبرعلا2016 لخاد ناعقت امهنأ ةجحب ةيدوعسلا ةيبرعلا ةكلملل نيتريزجلا نع رصم لزانت تنمضت يتلاو
ع قافتا فلخ روظحملا لزانتلا اذه رتس ةلواحم نم مغرلاب كلذو ،هلطبت روتسدلل ةميسج ةفلاخم ىلع ىوطنا دق ةيدوعسلا ةيميلقلإا هايملا ىل
.ةيرحبلا دودحلا ميسرت
is commendable because it maximizes the adherence of the executives to constitutional
requirements and consequently promote accountability of the government to law. It should
be emphasized that the main difference between the two judgments is that in the case of
initiating parliamentary elections (case no.3), the constitutional stipulation for issuance the
presidential decree was a “formal” or a “procedural” one: the approval of the cabinet.
Therefore, the judgement reviewed only the compliance with this condition. On the other
hand, in Tiran and Sanafir case, the constitutional requirement for concluding any
international agreement was a “substantive” one: forbiddance of ceding a part of the
territory. Accordingly, the Court had to scrutinize the subject-matter of the case in order to
decide on whether the constitutional requirement was obeyed by the executive branch or
not. The Court traced the historical evidence of practicing the Egyptian territory over the
two islands especially through police and military forces as well as the previous
international agreements that dealt with the situation of the two islands. As the Court found
that the constitutional prohibition was infringed by the challenged agreement, it declared it
null and void based on this constitutional ground. Therefore, the scrutiny of the enormous
pieces of evidence by the court, with the objective of determining whether the two islands
belonged to the Egyptian territory, falls within its judicial competence. Checking the
commitment of the executives to the constitutional forbiddance to cede any part of the
territory lies intrinsically on the judiciary.
213
B) Explicit Judicial Law-making:
Judicialization of mega-politics is apparent when courts explicitly “make” laws concerning
pivotal social, economic or political matters. Explicit judicial law-making constitutes an
intervention of the judiciary into the substantial prerogative of the legislatures i.e. enacting
law. Conventionally, the State Council’s judicial review is limited to applying legal rules,
whether constitutional or statutory, to disputes. Judicial review entitles administrative
courts to the function of interpreting law. Judicialization of mega-politics is often
manifested when courts are not confined to interpreting and applying law. Instead, they
explicitly “create” laws pertaining to core political, social or economic matters. It is well-
known that while practicing judicial review, judges may narrowly or extensively interpret
specific legal rules. In this case, the question that may arise is whether courts interpret or
make law. This is not what this research focus on. In fact, judicialization of mega-politics
is more likely to occur when the court explicitly creates rules without engaging into
interpretation of existing legislative ones. This is why this form of judicialization of politics
may be termed “explicit” judicial law-making as an indication of the outright intervention
into the fundamental prerogatives of the legislature.
213
It should be emphasized that there were two fundamental responses of the legislative authority to the two
judgements of the State Council on the Egyptian-Saudi maritime border demarcation treaty. First, the
legislature (House of Representative) ratified the treaty including the transfer of the two islands to the
sovereignty of Saudi Arabia on June 14th 2017 and totally overlooked the two judgments of the State Council.
Second, On April 18th.2017, the law no. 13/2017 on the appointment of the heads of judicial bodies was
enacted by the Legislature to grant the Egyptian President discretionary power to select the Chief Justice of
each of the four judicial entities, including the State Council. The president has to choose one of the three
nominees of General Assembly. In the case that no candidates or fewer than three candidates were nominated,
the President possesses the right to select the Chief Justice from among the seven eldest deputies89. This law
completely sets aside the obvious criterion of seniority that was constantly adopted in the four judicial bodies
for decades. It is beyond doubt that this statute constitutes a serious encroachment on the judiciary
independence, including that of the State Council judges.
Explicit Judicial law making may occur when there is legal vacuum in regard to a certain
matter. In this case, the State Council plays the role of a legislator and elaborate a detailed
nature, scope and conditions of this matter. In this case, courts do not decide on a particular
dispute, but they create a full elaborated rules to be applied in this case and any similar
cases related to the same subject-matter. In other scenarios, there may be no legal vacuum.
Rather, there are statutory rules applicable to the dispute but administrative courts explicitly
create a specific legal rule and add it to the existing applicable statutory rules. When the
State Council practices explicit judicial law-making in regard to a very crucial matter like
elections, it often entails judicialization of mega-politics as it performs substantial role in
determining who is eligible to run for office and consequently affects the outcome of the
entire electoral process.
It should be emphasized that proper assessment of explicit judicial law-making by
administrative courts, like other forms of judicialization of mega-politics, necessitates
moving beyond the binary perspective of permanently advocating for or arguing against
the involvement of the judiciary into realm of “legislating” or “establishment of legal
rules.” Rather, it should be assessed on a case-by-case basis according to the facts of the
case, the existence of statutory rules applicable to the facts, and the relevant constitutional
framework. Accordingly, in the following part, I analyze three judgments that encompass
explicit judicial law-making in pivotal matters and manifest judicialization of mega-
politics. I evaluate each judgment in order to indicate whether the court trespassed borders
of judicial control and encroached on the jurisdiction of the legislature, or its creation of
new rules fall within the legitimate scope of judicial competence.
Case 5. The Civil Servant’s Right to Strike (2016):
214
214
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 22314, session of 12 Mar.
2016, year 59 (Egypt). See generally similar verdicts such as Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme
Administrative Court], case no. 21992, session of 9 Jan. 2016, year 59 (Egypt) and Al-Mah. kamah al-Id.
ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 27047, session of 17 Jun. 2017, year 61 (Egypt)
A civil servant working for a Court in Ismailia was tried before the Disciplinary Court in
Ismailia
215
because she participated in strike for three days and therefore was subjected to
a disciplinary sanction. The objective of the strike was to raise the employees’ salaries to
be equivalent to their rivals in other departments belonging to the same entity they are
working for i.e. the Ministry of Justice.
The Disciplinary Court in Ismailia revoked the disciplinary sanction establishing its verdict
on the fact that the aforementioned strike did not constitute infringement of laws.
Afterwards, the Administrative Prosecution challenged this judgment asking for upholding
the sanction imposed on the civil servant.
The SAC upheld the verdict of the first instance court. It established its sentence on three
pillars. First, the Egyptian constitution has recognized the right to strike, and considered it
one of the constitutional rights of the Egyptian worker, and mandated the law to regulate
it
216
. The Constitution obviously states that the right to strike is entitled to all employees
whether those working for the government and its authorities i.e. public officials or those
working in the private sector. In addition, the International Covenant on Economic, Social
and Cultural Rights (ICESCR), ratified by the Egyptian authority in 1981, provides for the
right to strike. The constitution grants international conventions the same binding force as
municipal laws if ratified by Egyptian authorities. Therefore, the right to strike must be
perceived as a legitimate right entitled to all employees as an aspect of freedom of
expression.
Second, the Court stated that the strike recognized by the constitution is the peaceful one
to which the employee resorts in order to express legitimate rights and demands. When
employees are on strike, they have to refrain from affecting their work regularity and
215
Disciplinary courts are an integral part of the State Council courts. They are competent with the
disciplinary trials of civil servants once they are indicted for committing disciplinary offences. Their verdicts
are challengeable before the Supreme Administrative Court.
216
Article 15 of the Egyptian Constitution of 2014 states that “Peaceful strike is a right regulated by Law.”
continuity, resorting to violence in any way, and forcing nonparticipant employees to
refrain from work. A non-peaceful strike constitutes violation of laws, for which participant
employee must be held disciplinarily and criminally accountable.
Third, the legislative authority should enact law that regulates the right to practice peaceful
strike, seeking for achieving two parallel objectives: the public interest and the employees’
legitimate rights. The law should organize certain aspects. On the one hand, it has to define
the obligations of the striking employees via determination of the strike’s scope. Employees
have to recourse to strike to claim legitimate rights and demands related to their work. It is
not permissible to go on strike claiming unlawful demands or claims not related to the
employee’s job. Moreover, legislative statutes may determine the prerequisites to be
followed before going on strike such as submission of requests to superior executives,
without getting response, notifying the managing authority of conducting a peaceful strike
early enough before Initiating it.
On the other hand, the law has to define the administrative authority obligations. These
duties include respecting the employees’ right to strike and not to confront this peaceful
strike with violence. In addition, the administration has to gradually discuss the striking
employees’ demands and negotiate with them, within certain time specified according to
the nature of work. Also, it is bound not to arbitrarily leave striking employees without a
response and not to deny them any of their rights and benefits as a punishment for their
resort to peaceful strikes.
The SAC concluded that as long as the legislative authority does not enact the law
regulating the right to peaceful strike, the court will constantly apply the aforementioned
rules, considered as general principles, attempting to achieve balance between the public
interest and the employee’s rights. It assured that
Until this legislation is issued by the legislative authority, what was
previously mentioned falls within the general rules and principles
imposed by common sense, taking into account the two parties to
the relationship and trying to achieve balance between the public
interest of the state, the right of society and the rights and duties of
the employee. Hence, if the worker abides by these general
conditions and principles when exercising his right to peaceful strike
in order to express his legitimate demands, then he notifies the
competent authorities in the way indicated, did not resort to violence
in order to present these demands, and did not affect the progress of
work and its regularity in the public facility or the workplace, he
would have exercised this right within the framework of
constitutional legitimacy and shall be legally protected, and thus
may not be held accountable for his exercise of this legitimate
right.93
دعاوقلا نمض جردني هركذ قبس ام نإف ،ةيعيرشتلا ةطلسلا نع عيرشتلا اذه رودص نيحلو
93
:cibarA ni sdaer lanigiro ehT لوصلأاو
لماعلا قوقحو ،عمتجملا قحو ةلودلل ةماعلا ةحلصملا نيب ةنزاوملاو ةقلاعلا يفرط ةاعارم ىلع مئاقلا ميلسلا قطنملا اهضرفي يتلا ةماعلا
عورشملا هبلاطم نع ريبعتلل يملسلا بارضلإا يف هقح هتسرامم دنع ةماعلا لوصلأاو طباوضلا هذهب لماعلا مزتلا اذإف مث نمو ،هتابجاوو ،ة
هماظتناو لمعلا ريس يف رثؤي ملو ،بلاطملا هذه ضرع ليبس يف فنعلا ىلإ أجلي ملو ،هيلإ راشملا وحنلا ىلع ةصتخملا تاهجلا راطخإب ماقف
وأ ماعلا قفرملاب نمو ،ةيامحلاب اريدج نوكيو ،ةيروتسدلا ةيعرشلا نم راطإ يف قحلا اذه سرام دق نوكي هنإف ،لمعلا ناكمب
عورشملا قحلا اذهل هتسرامم نع ايبيدأت هتلءاسم زوجت لا مث.
This case manifests the judicialization of mega-politics in the form of explicit judicial law-
making concerning pivotal matters. The Court obviously illustrated that it creates and
applies its own set of rules that regulate the civil servants right to strike due to abstention
of the legislative authority to enact statutory rules on this constitutional right. The Court
defined the meaning, objective and conditions of the right to strike. It elaborated the duties
and obligations of the two parties to the relationship: the striking civil servants and the
public authorities they are working for.
Verdicts on the civil servant right to strike indicate that administrative courts have been
creating their own judicial techniques in order to immensely expand judicial review of the
executive’s actions and decrees. These instruments facilitate the courts’ intrusion into the
prerogatives of the legislature in crucial controversies and judicialization of megapolitics.
One of these tools is filling the legislative vacuum. Conventionally, when administrative
judges encounter a legislative lacuna regarding the subject-matter of the dispute, their
judicial review is restricted to deciding on the actual facts of the case. However, when the
legislative authority refrains from enacting statutes on thorny matters, like in the field of
individual rights that may raise immense political controversies and contentions, the State
Council courts make the best use of the resulting legal vacuum in order to get deeply
involved in making public policy decisions and judicializing megapolitics. Courts provide
their own perception of the subject matter of the dispute in a comprehensive, detailed and
probably itemized way, very similar to what the legislative authority may do. Judges, due
to the legal vacuum, are not restricted to concentrate their decisions on the precise substance
of the dispute in question. They tend to express their exhaustive comprehension of the entire
subject matter of the individual right. The rulings on the civil servant right to strike
encompassed extensively detailed conditions and procedures in a very similar way a
complete legislation on regulation of this right would appear.
This judgment also indicates that administrative judges rely on the tools provided by the
Egyptian constitutional framework to judicialize mega-politics, especially in the realm of
individual rights and freedoms and the demarcation of boundaries between the judiciary
and the legislature. The constitutional framework provides two main tools for the State
Council to engage in core social or political controversies: the written provisions on public
rights and freedoms and the “implantation” process of international conventions and
multilateral treaties in the municipal legal system. The verdicts on the right to strike reveal
that the court grounded judgments on the constitutional provision that states the right to
strike. Besides, they relied on the International Covenant on Economic, Social and Cultural
Rights (ICESCR), which provides for the right to strike.
The State Council courts rely on international conventions and charters ratified by the
Egyptian authorities, especially those on human rights, to review the adherence of the
executives to public rights and freedoms. Egyptian consecutive constitutions provide that
the provisions of international treaties have the same legal force as national statutory laws
once they are signed by the President and ratified by the legislative authority, and hence are
applicable to national disputes.
217
Administrative courts use the provisions of international
217
Article 151 of the Egyptian Constitution of 2014 states that “The President of the Republic shall represent
the State in its foreign relations and conclude treaties and ratify them after the approval of the House of
conventions as intrinsic tools to address rights disputes and set the boundaries within which,
on the one hand. individuals enjoy and practice their rights and, on the other hand, the
executive may act without infringing these rights.
In my view, when administrative courts encounter legislative lacuna concerning a crucial
matter, especially individual rights, and create their own set of rules that regulate that
matter, they are not considered as trespassing their jurisdiction for two reasons. First,
judicial conduct of explicit law-making in this case is no more than an attempt to redress
the legislative vacuum resulting from abstention of the legislative authority to enact
statutory rules regulating the contentious matter. The intrusion of the judiciary into the
prerogatives of legislature is temporary, in the sense that it is valid and applicable until the
legislative authority practices its main jurisdiction and enact statutory rules regulating the
same matter. Courts do not permanently substitute their own perspectives instead of that of
the legislature. Accordingly, their conduct may not be perceived as encroachment on the
legislature. Second, the objective of the judiciary in creating its own set of rules is achieving
balance between the public interest and the individual rights. The abstention of courts to
create rules for this purpose is likely to result in the violation of the executive of individual
rights as it is often more powerful. The courts involvement is an effective instrument to
rein in the executive power from infringing basic rights and freedoms.
Case 6. Good Repute of Candidates for the Parliament (2015):
218
Samir Sabry, a lawyer, filed a lawsuit before the Court of Administrative Justice asking for
rejection of Samia Ahmed Attia (known as Sama El-Masry)’s application for the House of
Representatives elections of 2015. He claimed that the Higher Committee for
Parliamentary Elections accepted her registration application in violation of elections laws
Representatives. Such treaties shall acquire the force of law following their publication in accordance with
the provisions of the Constitution.”
218
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 105519, session of 7 Oct.
2015, year 61 (Egypt).
as she does not fulfil the requirement of “good repute.” The plaintiff also alleged that she
is known for dancing and singing in night clubs in addition to insulting her constituency
people.
The CAJ dismissed the case, stating that the defendant is not proved to lack any conditions
of running for office as she has not been convicted by virtue of any final criminal
judgements. News and online reports tarnishing any citizen’s reputation are not considered
definitive evidence of lacking the conditions required to stand for elections.
219
The claimant challenged the court sentence before the SAC. He reassured his allegations
that the defendant is not of “a good repute.” He claimed that the court of first instance
overlooked all the submitted documents that prove his claims.
The Supreme Administrative Court (SAC) revoked the first instance court judgment and
rejected the defendant’s registration application for the House of Representatives elections
of 2015. The judgment stated that the right to stand for elections is a constitutional right
that lies in the core of a democratic process. However, the burdens and responsibilities of
any member of the House of Representatives necessitate the possession of a reasonable
degree of trust, credibility and integrity. “Good repute” is possessing valuable traits and
morals that entitle the candidate plausible degree of credibility in community. The Court
found that the defendant in numerous interviews had lacked good manners and shyness and
thus lack the necessitated “good repute”.
Moreover, the Court affirmed that although “good repute” is not stipulated in the elections
statutes as a requirement for running for office, it is considered a general condition for
holding any representative or executive post:
The provisions of both the Political Rights and House of
Representative Acts do not stipulate “good repute” as a condition of
running for office. Nevertheless, it is considered a general
219
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 78410, session of 19 Sep.
2015, year 69 (Egypt).
requirement for holding any representative or executive post. Any
representative of the people, in order to be eligible for such
prestigious responsibility of the executive branch supervision, is
required to be of “good repute” beyond any suspicions and also not
to be famous for misbehavior. Accordingly, there is no need for the
stipulation of “good repute” in a legislative provision.97
This verdict represents judicialization of mega-politics by administrative courts in the field
of elections. It involves intrusion of the judiciary into the realm of law-making jurisdiction
of the legislative authority. As previously illustrated, the judiciary intrusion is apparent in
this case because the Court does not interpret a particular legal rule trying to advocate that
its interpretation is valid. Rather, the Court evidently states that it “creates”
طرتشت مل باونلا سلجم نوناقو , ةيسايسلا قوقحلا ةرشابم نوناق صوصن نم لك تناك نئلو
97
:cibarA ni sdaer lanigiro ehT ةريسلا
تعاب ً ايباين وأ ًايذيفنت ًاعقوم دلقتي نم لك ىف ابلطتم اماع اطرش دعي هنأ لاإ , حيشرتلل ةمزلالا طورشلا نمض لاصخلا بيطو ةديمحلا نم هراب
ًاعجارمو ةموكحلا ءادلأ ًابقارم بعشلا نع ًلاثمم ىباينلا لمعلل ىدصتي نم ىلوأ باب نمو , صخش لك ىف ةضرتفملا ةماعلا طورشلا اهتافرصتل
صخشلا اذه نوكي نأ بجي ذإ ,– ةملأا ليثمتل ًلاهأ نوكي ىتح– لاأو تاهبشلاو ءوسلا نطوم نع ديعبو ةنسحلا ةعمسلا نم جايسب ًاطاحم
دق نوكي .عقوملا اذه لثم ىلوتل طرشلا كلذ ررقي حيرص صن ىلإ ةجاح نود , هتافرصتو هكولس ىف ىدرتلا وأ ءوسلا ةلاق هنع رهتشا
an additional condition for running for office other than those stipulated by the relevant
statutory rules. Given the significance of the dispute as it is related to a crucial political
question and shall have impacts on determination of the outcome of the entire electoral
process, judicialization of pure politics is manifested in this sentence.
In my view, this verdict is criticized for trespassing the boundaries of judicial review by the
SAC and encroachment on the legislature authority. The judgment did not entail valid legal
grounds on which the court established its jurisdiction to “add” a condition of running for
parliamentary elections and explicitly perform the role of the legislator. It stated that the
condition of “good repute” is a general requirement for holding any representative or
executive post without indicating the source from which the Court derived this condition.
Besides, the court ignored the State Council precedents which require conviction of a crime
by virtue of criminal judgements to rule that the person lacks the required “good repute.”
Surprisingly, the Court found that the challenged applicant does not fulfill the requirement
of good repute based on some of her statements in TV interviews. The Court did not
elucidate the validity of the foundations on which it overlooked administrative case law
and adopted a completely different approach regarding the evidence on lacking a “good
repute”
Case 7. Physical and Mental Clearance of Candidates for the Parliament (2015):
220
A lawsuit was filed asking the Court of Administrative Justice (CAJ) to issue a decision
ordering the Higher Committee for Parliamentary Elections to require a medical certificate
proving that the applicant is alcohol-and drug-free and not suffering from physical or
mental illness which adversely affect his performance as a member of the Parliament. It
was claimed that the constitution and statutes have always recognized the significance of
the representative post which presupposes the candidate eligibility to efficiently perform
its tasks. In addition, although both conditions of medical clearance and being alcohol-and
drug-free are not stipulated in the House of Representatives Act as requirements for
applicant registration, they are necessitated for holding any position in the executive and
judicial branches.
The CAJ accepted the case. As for the physical and mental clearance condition, the
judgment adopted a deductive analogy methodology and was established on two main
pillars. On the one hand, the Exercise of Political Rights Act stipulates that voters with
mental or psychological illness who are held in psychiatric centers are temporarily deprived
of their right to vote. This condition of mental and psychological clearance applies a fortiori
to parliamentary applicants whose constitutional duties, after being a
parliament member, are extremely harsher than a voter. Moreover, the House of
Representatives Act requires the disabled applicants to submit a medical certificate proving
that the current disability may not hinder capacity to practice political rights. Stipulation of
physical fitness should be extended to all the applicants not only the handicapped. The
220
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 20868, session of 20 Jan.
2015, year 69 (Egypt).
Court assured a general statement that the condition of physical, mental and psychological
fitness is required for holding any position or job:
Based on common sense, whoever applies to occupy a specific
position or job, especially public service, or is selected for that, must
fulfill the condition of physical, mental and psychological fitness
that enables him to perform the duties of this position or job or do
that work, as the case may be, whether the law stipulates for this
condition or is silent on that. This condition is required by public
principles without the need for a legislative provision to state it.99
On the other hand, as for the alcohol-and drug-free condition, the court assured that
although the condition of “good repute” is not stipulated in elections statutes as a
requirement for running for office, it is considered a general condition for holding any
representative post. Alcohol and drug abuse derogates “good repute” and diminishes the
وأ ةنيعم ةفيظو وأ بصنم دلقتل بلطب مدقتي نم نأ ، روملأا عئابط هيلمت ام ىلع ًلاوزن ررقملا نم :cibarA ni sdaer lanigiro ehT
99
لاو ةيندبلا ةقايللا طرشل ًايفوتسم نوكي نأ بجي ، كلذل رايتخلاا هيلع عقي وأ ، ماعلا لمعلا ةصاخ ةفصبو ، لامعلأا نم لمعب علاطضلاا ةينهذ
اذه بلطت ىلع نوناقلا صن ءاوس ، لاوحلأا بسحب ، لمعلا كلذب مايقلا وأ ةفيظولا وأ بصنملا اذه تابجاو ءادأ نم هنكمت ىتلا ةيسفنلاو
،هررقي صاخ صن ىلإ ةجاح ريغب ةماعلا لوصلأا اهبجوت ىتلا طورشلا نم دُعي طرشلا اذه نأ ذإ ، كلذل نع تكس مأ طرشلا
applicant’s credibility. It also infringes his/her constitutional oath to “respect the Law.”
221
Egyptian laws and regulations have always criminalized drug possession, abuse and
trafficking.
In my view, the same aspects of criticism of the previous verdict on “good repute” condition
(case no. 6) may be directed to this judgment. Although the statutory law on parliamentary
elections provides for detailed conditions for running for office, the Court “created” two
additional conditions on its own initiative. The judgment lacks robust legal grounds for
trespassing the boundaries of judicial review by the Court. Given the importance of the
representative post, it is not sufficient for establishing extra requirements for running for
office to state that the condition of physical, mental and psychological fitness is based on
“common sense” or “public principles” as mentioned in the verdict. The Court obviously
221
Article 104 of the Egyptian Constitution state that “As a condition for undertaking his/her duties, a House
of Representatives member shall take the following oath: “I swear by The Almighty God to loyally uphold
the republican system, respect the Constitution and the Law, fully uphold the interests of the People, and to
safeguard the independence of the nation and the integrity and safety of.”
replaces itself instead of the legislator and imposes its own perspectives in a core political
matter that tremendously affects the results of the electoral process as it determines who is
eligible to apply to run for office.
It is noteworthy in this regard to indicate one of the self-made judicial technique used by
administrative courts to excessively expand their scope of judicial review, which is review
of the executive’s omission, legally termed as “passive administrative decision.” Article 10
of the State Council Act provides for its judicial review of the executive’s omission to take
an action required by virtue of law. Such omission is termed in the legal terminology of
administrative courts’ rulings a “passive administrative decision.” This provision is
considered necessary for guaranteeing a comprehensive scrutiny of the executive in both
cases of taking and refraining from taking legally required actions. Administrative courts
have excessively been engaging in making public policies and creating legal rules on the
basis of review of passive administrative decisions even when there is no explicit legal rule
requiring the executive to take a certain action. In other words, what is problematic is the
source of obligation by virtue of which the court determines whether the executive is
obligated to act in a certain way or adopt a certain public policy. The case is probably simple
if the source of the executive’s obligation to adopt a certain policy is an evident legislative
rule. Nevertheless, it becomes intrinsic when there is no such a provision. When the Court
explicitly creates a legal rule, it often states in its ruling that the executive’s omission to
adhere to it constitutes an illegitimate “passive decision” and hence the court orders it to
comply with this rule stipulated by virtue of “law.” The verdict on physical and mental
clearance of candidates for the Parliament presents a clear example of excessive use by
administrative courts of the review of “passive administrative decision” as the Court
ordered the Higher Committee for Parliamentary Elections to require a medical certificate
proving that the applicant is alcohol-and drug-free and not suffering from physical or
mental illness, stating that these two conditions are necessitated by “law,” although there
was no legal rule in this regard.
C) adoption/abolition of a substantial public policy:
A third form of judicialization of mega-politics is apparent when administrative courts
decide on making, suspension or abolition of a public policy related to substantial social,
economic, or political questions. A confluence of factors and institutions take part in the
process of public policy making. It is a very complicated process through which various
political actors influence each other. Conventionally, executive and legislature, as
representative institutions, are entitled to making public policies which have to be
formulated in consistency with the existing constitutional framework and legal provisions.
The administrative apparatus of the state substantially contributes to implementation of
public policies. The role of administrative courts is to review the actions of the executive
during the implementation process of these policies and properly apply the law pertaining
to them. While doing so, they render judgments that provide suggestions for effective
implementation of these policies and achievement of their objectives. This is more likely
to occur in judgments that highlight the defects and shortcomings of a particular public
policy after it is actually put into force.
At times, the State Council renders judgments that make or substantially contribute to
making a public policy for achieving a specific purpose. Similarly, its judgments suspend
or completely revoke a public policy concerning crucial social. economic or political
matters. In these cases, the locus of political activity is transferred to courtrooms. The
authority of policy making, formerly perceived to be entitled to politicians, is relocated
from executives and legislature to the judiciary. The judicialization of mega-politics is
accordingly manifested when administrative courts make or abolish a pivotal public policy
rather than sticking to their conventional role of making sure that public policies and
relevant legal provisions are properly applied by the agencies and organs of the
administrative apparatus.
It should be pointed out that, in legal terms, when administrative courts decide on making,
suspension or abolition of a public policy, it would be misleading to allege that they
constantly surpass their limits of jurisdiction. Although in these cases, the authority of
public policy-making seems to be transferred to the judiciary, assessment of this form of
judicialization of mega-politics, in regard to excessive expansion of jurisdiction, should
move beyond the binary model of evaluation: either involves encroachment of the State
Council on the jurisdiction of other main organs of the state or lies within administrative
judiciary’s scope of competence. Like the previous two forms of judicialization of mega-
politics, this form should be assessed on a case-by-case basis according to the facts of the
case, the nature and legal characteristics of the public policy in question, and the relevant
constitutional and regulatory framework. I depict below three cases manifesting the
occurrence of judicialization of mega-politics regarding fundamental social and economic
public policies. In each case, I briefly illustrate the facts and grounds of the judgement.
Then, I analyze the verdict to indicate whether it constitutes an excessive expansion of
administrative judiciary’s jurisdiction or it falls within the scope of judicial review.
Case 8. Minimum Wage for workers (2010):
222
Nagi Rashad, a worker at the South Cairo Milling Company, filed a lawsuit before the CAJ
asking for the establishment of a minimum wage for workers in the private sector. He
claimed that all private sector employees are suffering from very low wages that are not
proportionate to the constant prices increase. The abstention of the government to
determine a minimum wage violates the constitutional rights of employees.
The CAJ accepted the case and established its verdict on two pillars. First, the constitutional
provisions that recognize and protect certain rights cannot be considered non-binding
guidelines. Instead, they are legally obligatory provisions. The Egyptian constitution has
recognized the value of work and considered it simultaneously as a right and a duty. It has
also stipulated for the workers’ rights, inter alia, to ensure a fair
222
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 21606, session of 30 Mar. 2010,
year 63 (Egypt).
remuneration for their work, guarantee a minimum wage and linking the wage to
productivity.
223
Accordingly, these provisions have to been put into force through the
adoption and implementation of actual policies and programs.
Second, the Court affirmed that the government is bound to play an active and functioning
role for a minimum wage determination. Hence, it is not legally permissible to leave the
determination of workers’ wages to the employers who take advantage of the workers’ need
to work and force them to receive unfair wages, that are not commensurate neither with
their work nor the increase in living expenses. The Court indicated that a fair wage for the
worker, regardless of the financial determination of its exact value, has to guarantee a
dignified life for the worker and his family. The Court concluded that the minimum wage
establishment is a preliminary and substantial step to achieve a fair wage for workers
because they are the weak party in the work relationship and hence their protection is
obligatory.
This judgment manifests the judicialization of mega-politics in the form of obligating the
executives to embrace a certain public policy and take the required procedures for its actual
implementation. It highlights the involvement of administrative judiciary in a substantial
social predicament related to social justice and fair distribution of wealth. Conventionally,
the decision to establish a substantial public policy like fixing a minimum wage for workers
is entitled to the legislature and executives in conformity with the existing constitutional
framework. In this case, the State Council moved beyond its traditional role of reviewing
the implementation of a given public policy by the administrative machinery and ordered
the executives to establish a minimum wage for workers in the private sector.
223
Article 23 of the Egyptian Constitution of 1971, that was in force at the time of the Verdict, states that
“The national economy shall be organized in accordance with a comprehensive development plan which
ensures the growth of the national income, fair distribution, higher living standards, elimination of
unemployment, the increase of job opportunities, the linking of wages to productivity and the determination
of minimum and maximum wages in a manner which guarantees the reduction of disparities between
incomes.”
In my view, this judgment is criticized because it represents trespassing of the frontiers of
judicial review by administrative courts and excessive utilization of the tool of “passive
administrative decision.” As formerly elaborated, the State Council’s judicial review
includes the executive’s omission to take an action required by virtue of law. When the
executives refrain from taking a specific action although there is a constitutional or
statutory rule that obliges them to do so, administrative courts are entitled to revoke such
omission (which constitutes the passive administrative decision) by issuing a judgment
ordering the executives to perform its obligation. In the case of workers’ minimum wage,
the Court established its judgment mainly on the re-interpretation of the binding force of
the constitutional provisions on the objectives of the national economy plan. Article 23 of
the Egyptian Constitution of 1971, that was in force at the time of the verdict, provides for
the general objectives of the national economy plan which are the growth of the national
income, fair distribution, higher living standards, elimination of unemployment, the
increase of job opportunities, the linking of wages to productivity and the determination of
minimum and maximum wages in a manner which guarantees the reduction of disparities
between incomes. In my perspective, these objectives are nothing but general guidelines
for both the legislature and executives to put into consideration while formulating and
implementing the national economy development plan. The Court misinterpreted the
constitutional provision when it conferred these objectives a binding force, alleging that
the objective of establishment of a minimum wage for workers is an obligatory one which
the executive branch is constitutionally bound to fulfil. Accordingly, the Court “invented”
a source of obligation, derived from the constitutional guidelines, to order the executives
to establish a minimum wage for workers. This is considered an excessive expansion of
judicial review because the judgment lacks a valid constitutional and legal ground to
obligate the executive to embrace the major public policy of workers’ minimum wage.
It should be pointed out that the previous aspect of criticism is similar to what was directed
to the judgment on the physical and mental clearance of candidates for the Parliament (case
no.7) in which the court ordered the Higher Committee for Parliamentary Elections to
require a medical certificate proving that the applicant is alcohol-and drug-free and not
suffering from physical or mental illness, while stating that these two conditions are
necessitated by “law.” Although the conditions of physical, mental and psychological
fitness are not stipulated by the statutory rules on the parliamentary elections, the court
“invented” the legal source of these conditions by stating that they are stipulated based on
“common sense” or “public principles” as I mentioned earlier.
Case 9. Healthcare Privatization (2008):
224
Starting from late 1990s, the Egyptian government initiated a privatization process as a
means to enhance the efficiency of the economy that encountered massive financial and
economic predicaments. This process extended to numerous sectors of the state. As for the
healthcare sector, the Court of Administrative Judiciary (CAJ) annulled the entire
privatization process of the National Authority of Health Insurance. The Court asserted that
providing health insurance service is a constitutional obligation on the state in order to
preserve and promote the individual rights to life and health. In compliance with the
Constitution, the legislator has entrusted the National Authority for Health Insurance with
two main functions, financing and providing the healthcare service, Accordingly, it is not
permissible for this authority to refrain from carrying out any of these two functions or to
transfer it to any other entity. These two functions are constituent components of its social
duty assigned by the legislator in compliance with the provisions of the Constitution.
The CAJ also declined the justifications of the privatization process that alleged its
necessity for the healthcare sector development and overcoming revenues insufficiency. It
affirmed that privatization process would undermine the social function of the state to
ensure health and safety of individuals as it grants the entire control over healthcare service
to private sector whose ultimate objective is maximizing profits regardless of any social or
collective considerations.
224
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], cases no. 21550, 21665, 2212, 22752,
25857, session of 4 Sep. 2008, year 61 (Egypt).
This judgment highlights the judicialization of mega-politics in the form of total
abolishment of a crucial public policy adopted by the executives. The court got embroiled
in healthcare privatization process as an intrinsic macro-economic public policy. It should
be noted that the Court did not scrutinize the detailed implementation of this public policy
by the administrative apparatus of the state. Instead, it engaged with the legality of the
principal option of the executives to adopt the privatization policy in this prominent sector.
The decision to make or abolish fundamental public policies is no longer exclusively
entitled to the legislature and the executives. This judgment indicates that the judiciary
involves in determining the validity and justifiability of a public policy that has major
consequences on the entire society, and accordingly judicializes mega-politics.
In my view, this judgment did not involve an excessive expansion of the State Council’s
judicial review because it was founded on valid legal grounds that proved the infringement
of the constitution by the healthcare privatization policy. The Court did not claim that it
provided their own preferred version of public policy in relation to healthcare system
instead of the privatization policy embraced by the executives. Rather, the court indicated
that the privatization policy is not in conformity with the constitutional and statutory
framework relevant to the healthcare system and therefore may be revoked. Therefore, in
this case, administrative judiciary did not trespass limits of judicial review although it
involved into the public policy-making process, conventionally belonging to the legislature
and/or executives. The Court declared the grounds on which the healthcare privatization
policy contradicted with the constitutional social objective of providing the healthcare to
all beneficiaries and violated the basic rules of the social and healthcare insurance
stipulated by the constitution, multiple social insurance legislations, and international
conventions.
Case 10. Omar Effendi Sale Contract (Privatization of Public Sector Companies)
(2011):
225
On December 21st 2010, nearly a month before the Egyptian Revolution of 2011, Hamdi
El-Fakharani brought a lawsuit before the CAJ asking for declaring null and void the
administrative contract concluded between the Ministry of Investment (represented as The
Holding Company for Construction and Development) and the “Anwal Trading
Company”
226
for the selling of “Omar Efendi Company” at the total price of 590 million
Egyptian Pounds. The plaintiff argued that the determined price is much lower than the
market value of the sold company which exceeds 2.5 billion Egyptian Pounds. Also, the
contract was not supervised by the competent Department of Legal Advice in the State
Council in violation of law. In addition, the purchasing company did not comply with the
contract provisions as it laid off a large number of workers that exceeds the agreed number
in the contract.
On May 7th 2011, the CAJ accepted the case and nullified the contract as it encompassed
extremely gross violations of laws and regulations related to the privatization of public
assets, that amount to constitute serious squandering of public money. These infringements
entailed selling the shares of Omar Effendi Company at a price that is completely
disproportionate to the rights and privileges obtained by the purchaser. In addition, the latter
had been delivered certain movables free of charge and allowed to sell assets of historical
and cultural characters that are legally prohibited be disposed of. The Court also declared
that the purchasing foreign investor had been enabled to sell the company's assets at the
market value despite being evaluated in the nullified contract on other bases that resulted
in lesser values.
227
Besides, the purchaser was enabled to evade taxes.
225
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 11492, session of 7 May. 2011,
year 65 (Egypt).
226
This company is completely owned by a Saudi investor called Mr. Gameel Abdul Rahman El-Kenbeet.
227
The court declared that the Omar Efendi Company’s assets were evaluated on the basis of discounted cash
flows and hence were extremely less than their market value. In addition, the court stated that the process of
these assets evaluation has entailed eleven aspects of gross violation of laws and regulations related to the
organization of privatization as illustrated in the verdict in detail. 107 :cibarA ni sdaer lanigiro ehT ةمكحملا نإ
The CAJ concluded its verdict with declaring that its findings reveal malicious squander of
public property which unprecedentedly took place under the leadership of many ministries.
The Court described this as “the largest sabotage operations of the Egyptian economy”,
which constitute crimes, if proven after investigations, as well as administrative corruption
that requires accountability. The Court stated that:
The court considers its judicial ruling as a notification to all
investigative bodies in the state: to the Public Prosecution, the Public
Funds Prosecution, the Illicit Gain Administration, and the
Administrative Prosecution, so that each entity carries out its duties
as required by law to protect the country from the evil of
corruption.107
The State Council, in other cases, also nullified a great deal of privatization contracts that
included sale of public sector companies, owned by the state, to foreign investors such as
the sale contracts of Shebin El-Kom Textile Company, the Tanta Company for Linen and
Derivatives, the Steam Boilers Company and the Nile Cotton Ginning Company.
228
Cases of nullifying the sale contracts of major public sector companies, including Omer
Effendi, demonstrate the judicialization of mega-politics in the form of abolishment, or at
least substantial suspension, of a public policy in the domain of macro-economic planning.
Unlike the judgment on the healthcare privatization policy (case no.9), these verdicts on
privatization of public sector companies did not revoke the principal decision of the
executive branch to adopt the public policy of privatization. In almost all these cases, the
court affirmed that the privatization of public sector companies, in itself, aims that
improving economic efficiency by relying on market mechanisms and competition,
ةباينو ،ةماعلا ةباينلل ،ةلودلاب قيقحتلا تاهج لكل ًاغلاب اذه يئاضقلا اهمكح ربتعت ةباينلاو ،عورشملا ريغ بسكلا ةرادإو ،ةماعلا لاوملأا
رش دلابلا يقي امو نوناقلا اهيلع هبجوأ ام رملأا اذه لايح ةهج لك ذختتل ،ةيرادلإا
داسفلا.
228
See generally Justice HAMDI YASIN OKASH, Dur magles al-dawla fi kash al-khaskhasa al-fasida w
mukhatatat bai’ misr (THE ROLE OF STATE COUNCIL IN REVEALING CORRUPTION IN PRIVATIZATION PROCESS
AND PLANS FOR EGYPT VENDING. (Arabic) 2014; Omar el Menshawy, Egyptian Public Law Judge: Reviewing
Public Economic Policies from Nationalization to Privatization. 2021. American University in
Cairo, Master's Thesis. AUC Knowledge Fountain.
alleviating financial burdens on countries that suffer from large losses in public sector
companies, and expanding the size of the private sector.
229
However, the court reviewed all
the elements, decisions, conditions and implementation details of the companies’ sale
contracts and, in all cases, eventually declared these contracts null and void for violation
of law. It is undeniable that every judgment in this regard may not be manifest, in itself,
judicialization of mega-politics. Nevertheless, the fact that all the sale contracts of public
sector companies were nullified by the State Council signifies the total suspension of this
major public policy by administrative judiciary, which reflects a form of judicialization of
mega-politics.
It should be emphasized that the scrutiny of the sale contracts of public sector companies
falls within the scope of the State Council’s Judicial review. Article 10 of law no.47/1972
on the State Council provides for the competence of administrative courts to review all
administrative contracts. Sale contracts of public sector companies, owned by the State, to
private investors, are considered administrative contracts which the State Council possess
jurisdiction to review. Accordingly, these judgments do not entail excessive expansion of
jurisdiction of administrative courts. They represented a legitimate practice of judicial
review by the State Council, but they eventually led to a total suspension of the privatization
process as the court revealed numerous gross violations of laws and regulations that
amounted to massive corruption by the executive authority while concluding and enforcing
the sale contracts and consequently nullified them all.
A judicial technique which facilitate judicialization of mega-politics, in its three forms, is
the expansion of standing requirement before administrative courts i.e. the concept of
“litigant’s interest.” For the lawsuit to be admitted by administrative courts, it is legally
stipulated that the plaintiff possesses an “interest” in the litigation. This “interest” condition
is fulfilled when the plaintiff’s factual or legal status is directly affected by the challenged
229
In Omer Effendi Case, the Court stated that “Privatization in itself is not an absolute evil that must be
resisted, nor is it an absolute good”
action or decision of the executive. Administrative courts have widened the definition of
the litigant’s interest as a condition of the case admissibility. The expansion of the definition
of the “litigant’s interest” is a general rule permanently assured by administrative judiciary
in various types of cases. Whenever the challenged action or decree of the government is
related to the whole Egyptian society, courts declare that it is sufficient for the plaintiff to
be an “Egyptian citizen” to admit the case. Being a citizen implies that the plaintiff is
directly affected by the challenged decision and therefore the case is admitted. This
expansion of the “interest” definition has yielded a tremendous increase in the accessibility
of individuals to administrative courts. As a result, the frequency of lawsuits pertaining to
challenging major public policies embraced by the executive has been largely growing. All
the verdicts on privatization of healthcare and public sector companies provide evident
examples of the ever-increasing expansion of the litigant’s “interest”. The State Council
declared the admissibility of these case on the basis that all plaintiffs are Egyptian citizens
and therefore they would be affected by the negative results of such major social and
economic public policies that affect the entire society. In my view, this approach is laudable
because it expands the scope of judicial review over the executives in pivotal matters that
have impacts on the whole society to ensure their adherence to constitutional and statutory
rules. This would promote accountability of the government to law. Narrowing the
definition of “litigant’s interest” in such cases would enable the executive branch to elude
a fundamental form of accountability i.e. judicial control.
It is worth mentioning that after administrative courts invalidated plentiful sales of assets
and companies owned by the state, like in Omar Effendi Case, the legislative authority
enacted law no. 32/2014 which prohibits any party other than the contracting parties from
challenging sales or investment contracts signed by the Egyptian state with any entity.
Moreover, the law provides immunity for the judicially-challenged contracts at the time of
its promulgation as it compels courts to declare all the ongoing relative lawsuits
“inadmissible.” Therefore, the State Council competence over the state contracts has been
largely diminished
230
.
Chapter III. Factors contributing to the judicialization of politics in the Egyptian
administrative judiciary:
The tendency of the State Council courts towards the judicialization of mega-politics is a
sociopolitical and legal phenomenon which can be attributed to the convergence of an array
of factors. These factors can be divided into three main categories: institutional elements,
legal mobilization and judicial role perception. This chapter endeavors to elucidate these
factors and explain which one may be considered as the main driving force behind the
judicialization of mega-politics.
230
The law no. 32/2014 is currently challenged before the Supreme Constitutional Court which has not issued
a judgment until the time of writing this thesis.
A. Institutional elements:
The emergence of the trend towards the judicialization of politics in Egyptian
administrative courts is backed by the presence of three basic institutional factors. First, the
existence of a constitutional framework that facilitates judicial activism is a critical factor
of judicialization of mega-politics. As Hirschil contends:
The existence of a constitutional catalogue of rights and judicial
review mechanisms not only provides the necessary institutional
framework for courts to become more vigilant in their efforts to
protect the fundamental rights and liberties of a given polity’s
residents; it also enables them to expand their jurisdiction to address
vital moral dilemmas and political controversies of crucial
significance to that polity.
231
Administrative judges fundamentally rely on the constitutional framework to decide on
crucial social, economic, and political controversies. The constitutional framework
provides two main tools for the State Council to make crucial public policy decisions: the
written provisions on rights and freedoms as well as the texts that determine the jurisdiction
and authoritative powers of the executives.
Since 1971, Consecutive Egyptian constitutions have provided for detailed provisions on
individual rights and liberties. In addition, they grant international conventions and
multilateral treaties the binding force of municipal laws once ratified by Egyptian
authorities. Hence, the provisions of all ratified human rights conventions and treaties are
constituent part of the legal rules applied before courts. While adjudicating disputes,
administrative courts consider specific rights texts, of the constitution or a human rights
convention, as the focal point of the verdict, and simultaneously prescribe the definition,
scope, limitations and parameters of the intended right or liberty, which eventually manifest
judicialization of politics in this regard.
232
231
Ran Hirschil, supra note 18, at 11.
232
It is noteworthy to indicate that in few instances, but I do not allege to be a general approach, the Court of
Administrative Justice reached far beyond what the constitution stipulates regarding the legal force of
international treaties. It held that human rights international conventions that were not ratified by the Egyptian
Administrative judges have apparent propensity to go beyond the text of applicable law, if
there is any, and rely more on their personal ideological preferences, cultural tilts, and social
backgrounds. This is described as judicial activism.
233
Judges may not interpret the
provisions of legal rules in a mechanistic way. Rather, they address more considerations
other than the written words of the applicable law such as the real intent of the creator of
these rules, whether constitutional or international, with the objective of attaining their
compatibility with the relevant social, political and economic environments. When the text
of the constitution or a human rights convention is ambiguous, or not well-defined, judges
provide their own set of rules governing the dispute, based on their own perception of what
the “proper” interpretation of the text is, or what the law ought to be. Consequently, judicial
activism of administrative judiciary, through interaction with the auspicious constitutional
framework, is more likely to pave the way towards the judicialization of mega-politics.
The previously elaborated judgment on the civil servant right to strike (case no.5) is an
apparent example when the court established its judgments on the provisions of the
constitution and of the ICESCR
234
that provide for the right to strike and explicitly provided
their own set of rules governing the issue. Moreover, the verdict that established the
minimum wage of workers (case no. 8) clearly indicates how courts deviate from non-
binding interpretation of some constitutional texts; and rather rely on their ideologies and
policy preferences to present a novel and more authoritative interpretation of constitutional
provisions to accord them a binding force.
authorities may be applicable to national disputes. Recently, in 2017 the Court stated that the Egyptian
international obligations emanating from the International Convention for the Protection of All Persons from
Enforced Disappearance have “international moral binding force” that gives its provisions the same legal
force as municipal laws despite the fact that the convention is not ratified by the Egyptian authorities. See
Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], case no. 78415, session of 2 Jul.
2017, year 62 (Egypt).
233
See Ibrahim Soliman, Judicial Activism in the Egyptian State Council: A Case Law Study, AUC thesis,
2016, American University in Cairo, Master's Thesis. AUC Knowledge Fountain.
234
The International Covenant on Economic, Social and Cultural Rights.
Another prominent indication of the constitutional framework as a crucial element of
judicialization is a number of judgements that prohibited police officers, affiliated to the
Ministry of Interior, from entering the universities campuses and practicing any activities
affecting the university independence. Although there were no legal rules regulating the
police officers’ existence and role in universities, verdicts of administrative courts banned
such existence, on the basis that it constituted infringement of the constitutional right to
education.
235
Another tool provided by the constitutional framework is constitutional texts that
enumerate authoritative powers of the executives. As illustrated in Chapter 2,
administrative judiciary declares jurisdiction over executive actions, although formerly
perceived as sovereignty acts, when the constitutional framework changes and the new
constitution provides for formal or substantive requirements of these actions. The role of
the judiciary is to verify the compliance of the executive to these conditions whether in the
form of procedural stipulation for taking such acts (as in the case of nullifying the
presidential decree calling for holding the parliamentary elections due to lack of the Cabinet
approval as a procedural condition) or substantive requirements pertaining to the subject-
matter of the actions (as in the case of the Egyptian Saudi maritime border demarcation
treaty, in which the court reviewed the adherence of the executive to the constitutional
forbiddance to cede any part of the territory)
Second, the development of a modern complex state with large bureaucratic machinery is
a considerable factor of the judicialization of mega-politics.
236
Expansion of judicial review
of administrative courts is an inevitable outcome of the sophistication and complexity of
235
See e.g., Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 17607, session of 25
Nov. 2008, year 62 (Egypt). In this case, The Court grounded its judgment on the basis of the constitutional
text on the universities independence. It asserted that this independence is achieved when the university
manages its own affairs, and when all its departments and units, including the Campus Security Unit, are
subordinate to the university president whose orders and decisions have to be implemented, without any
interference from any other entity. So, it is not permissible to impose any restrictions on the university’s
practice of its affairs under any justifications as this diminishes the university independence, stipulated in the
constitution.
236
MARTIN SHAPIRO & ALEC STONE SWEET, supra note 28.
the Egyptian society through time. The State Council scrutinizes the actions of enormous
amount of public authorities and agents of the executive branch responsible for making and
enforcing a myriad of policies pertaining to education, healthcare, transportation,
environmental protection, investment and the like. This immense administrative apparatus
with wide spectrum of fields raises the opportunities of administrative courts to deeply
engage in these domains. As I previously elucidated, the involvement of the State Council
in public policies arenas goes beyond guaranteeing proper implementation and
achievement of their objectives and extends to establishment or abolishment of public
policies. The more immense and diverse bureaucratic machinery is, the more possible
occasions for the State Council to judicialize mega-politics through substantially making,
suspending or revoking a major public policy.
Third, the accessibility of the State Council courts, compared to the Supreme Constitutional
Court (SCC), is an important aspect that has implications for judicialization of politics.
Egypt employs a centralized model of constitutional review characterized by one single
court i.e. the SCC, entrusted with deciding constitutionality of legal rules. The SCC is not
directly accessible through the ordinary litigation procedures before ordinary and
administrative courts. According to Law no. 48/1979 governing the operations of the SCC,
a lawsuit may be filed before the SCC only when a court, during litigation, decides the
referral of a case to the SCC to declare the constitutionality of particular legal provisions
related to the dispute, either on its own initiative or upon the request of a party to the
litigation.
237
Accordingly, direct resort of litigants to the SCC claiming the
237
Article 29 of Law no. 48/1979 states that
The Court assumes judicial control over the constitutionality of laws and
regulations in the following manner: (A) If, during the consideration of a case, one of the
courts or bodies with judicial jurisdiction finds that a provision in a law or regulation that is
necessary for settling the dispute is unconstitutional, the case shall be suspended and the
papers shall be referred without fees to the Supreme Constitutional Court to decide on the
constitutional issue. (B) If one of the litigants, during the consideration of a case before one
of the courts or bodies with judicial jurisdiction, claims that a provision in a law or regulation
is unconstitutional, and the court or body finds that the plea is serious, it adjourns the
consideration of the case and sets a date for the one who aroused the defense to file a case in
a period not exceeding three months before the Constitutional Court. If the case is not filed
on time, the plea shall be considered null and void. 118 Tamir Moustafa, supra note 37 at 886.
unconstitutionality of a legal provision is inadmissible by virtue of law. On the contrary,
administrative courts are directly accessible by litigants through ordinary procedures. The
institutional element of courts accessibility is a contributory factor to the constant increase
in administrative cases, especially those related to the infringement of the individual rights
by the executive. This facilitates the embroilment of judges in core political and social
predicaments and the occurrence of judicialization of mega-politics.
B. Legal Mobilization:
Legal mobilization of effective social and political actors seeking for social change via
strategic litigation before the State Council is considered a substantial factor leading to the
judicialization of mega-politics. NGOs, political activists and interest groups resort to
litigation to invoke the protection of individual right and freedoms. This process, called
“Legal mobilization from below,” has rapidly increased because administrative courts, side
by side with the SCC, are perceived to be active courts, that constitute a fair, impartial and
more respected forum to pursue major change in the economic, political or social
environments.118 In an undemocratic regime, as there is little possibility and capability of
the people to attain a given societal change or invoke rights via representative authorities,
judicial avenues are considered rapid and effective means to pursue such objectives.
238
In
Egypt, some scholars contend that law primarily serves as an efficient and disciplined
exercise of state power- a feature described as “rule by law,”
239
It is characterized by using
law as a tool of social control while allowing marginalized groups to seek redress. It is
argued that legal mobilization so widespread in Egypt is an outcome of the activists’
attempts to achieve a transformation of rule by law to the rule of law. Due to the state’s
reliance on rule by law, it is expected that law would become the main expression of societal
contention, given the fact that it is embedded in state’s fabric and practices.
240
238
Lynette J. Chua, Legal Mobilization and Authoritarianism, Annu. Rev. Law Soc. Sci. 2019, at 356.
239
Tamir Moustafa, supra note 51 at 284.
240
Mona El-Ghobashy, Constitutionalist Contention in Contemporary Egypt, AMERICAN BEHAVIORAL
In consolidated democracies, the rights discourse has been deployed. Raising rights
awareness relies not only on the existence of written rights bills and charters, but also on
the existence of support structure for legal mobilization. This structure is composed of four
main integrated grounds: rights-advocacy organizations, pro-rights lawyers, financial aid,
and governmental rights-enforcement agencies.
241
On the contrary, in restrictive polities,
there are numerous obstacles that hinder this support structure from effective functioning
such as restrictive legislation targeting civil society organizations and fastchanging statutes
regulating pivotal matters.
242
As a result, few civil society organizations and political
activists can be efficiently active and capable of mobilizing litigation. Despite encountering
tangible obstacles to legal mobilization, NGOs and political activists in Egypt performed a
noticeable role in providing the demand-side of the judicialization of mega-politics though
initiating plenty of lawsuits in various contentious fields in the State Council courtrooms.
For instance, the case of the workers’ minimum wage establishment (case no.8) was filed
by a human rights organization called the
Egyptian Center for Economic and Social Rights (ECESR) on behalf of a worker in a public
sector company. Privatization cases of Omar Effendi and other public sector companies
(case no. 10) were all filed by activists. The lawsuit of natural gas export to Israel (case no.
1) was filed by a former ambassador. The case of public health privatization (case no. 9)
was initiated by a human rights organization called the Egyptian Initiative for personal
rights (EIPR).
243
SCIENTIST, Volume 51 Number 11, July 2008, at 1606.
241
Charles Epp, supra note 27 at 19.
242
Freek van der Vet, When They Come for You”: Legal Mobilization in New Authoritarian Russia, LAW &
SOCIETY REVIEW, Volume 52, Number 2 (2018) at 303. The author explains two other obstacles to legal
mobilization: high personal risk for participating in activism and unfair trials, but it is outside the scope of
this research to address factors beyond the realm of administrative judiciary and law.
243
For further illustration of the EIPR practical efforts in this case to protect and guarantee the realization of
the right to health to all Egyptians, see generally Ayman Sabae, Four Strategic Pathways for the Realization
of the Right to Health Through Civil Society Actions; Challenges and Practical Lessons
Learned in the Egyptian Context, Health and Human Rights, Vol. 16, No. 2, Health Rights Litigation
(December 2014), pp. 104-115.
In all these cases, administrative courts assured that if the plaintiff challenges a national
public policy or a governmental action that affects the whole society, it is sufficient for the
case to be admissible that he/she is an “Egyptian citizen” without any further requirement
of the standing right (locus standi).
244
This emphasizes the expansion of the definition of
the “litigant’s interest” as a condition of the case admissibility by administrative courts. As
elaborated in Chapter 2, this is a judicial technique utilized by the State Council for
expansion of judicial review. NGOs, political activists, and civil society organizations
largely make the best use of this advantage, furnished by administrative courts, when they
opt to resort to judicial avenues to challenge a governmental action or a public policy.
C. Judicial Role Perception:
In consolidated democracies, expansion of judicial review is sometimes assessed as
opponent to democratic governing principles. Therefore, widening the realm of judicial
review is often criticized for the counter-majoritarian impact of resorting to courts that seize
power from democratically elected representatives in violation of the constitutional
separation of powers.126 In restrictive regimes, the counter-majoritarian accusation of
courts would be meaningless because they lack majoritarian democracy.
In my view, the previously stated institutional elements as well as legal mobilization are
not sufficient to explain the trend of judicialization of politics in Egypt. In restrictive
polities, when courts are not situated in their “ideal” context i.e. a liberal constitutional
democracy, the position and role of courts are more apparent than other elements that
determine judicial decision-making.
245
Accordingly, examination of the judicial ideational
propensity of administrative judges to critically involve in policy-making process is a
fundamental approach for analyzing and explaining judicialized megapolitics.
244
Justice HAMDI YASIN OKASH, supra note 108, at 329.
126 Ran Hirschil, supra note 40, at 81.
245
Shannon Roesler, Permutations of Judicial Power: The New Constitutionalism and the Expansion of
Judicial Authority, LAW & SOCIAL INQUIRY, Vol. 32, No. 2 (Spring, 2007), at 568.
Scholarly work on comparative judicial politics have illuminated the prominence of
ideational factors that affects courts’ engagement in public policy decisions and scrutiny of
unruly actions of elected representatives. In the US context, the attitudinal model
246
of
judicial decision-making contends that attitudes, values, ideologies and policy preferences
substantially formulate judicial decisions.
247
Outside the US context, some scholars extend
the ideational approach to judicial politics, based on the argument that judicial attitudes are
more complicated and hence go beyond simple party identification and left-right political
ideology as prescribed in the American attitudinal model. Hilbink emphasizes that there are
other critical determinants of how judges address particular issues, especially those related
to judicial review of executives and legislature, such as “judicial role perception.”
248
She
argues that examination of cases that involve politically powerful actors in which judges
seek to nullify, limit or alter the actions of these actors indicates that judicial role
perceptions are crucial in shaping judges’ interest in engaging in such cases. She advocates
that judges become willing to, and capable of, engaging in cases challenging other political
powerful actors due to their professional selfunderstanding of their role as guarantor of
fundamental legal principles. Such sincere judicial attitudes “are not inert background
characteristics, awaiting the right strategic conditions to be released or activated; rather,
they are themselves crucial to explaining proclivity to assert their authority against
powerful actors.”
249
246
In the US context, there are mainly three models of judicial decision making. Other than the attitudinal
model, the legal model perceives judges as apolitical actors who apply the law in compliance with the written
statutes, case law and other formal sources. The strategic model assumes that judges take into account the
views of other actors and may choose to depart from a preferable outcome in order to pursue these accounts,
in some sort of trade-off. For further elaboration of the three models, see Björn Dressel, Raul Sanchez-
Urribarri, Alexander Stroh, Courts and informal networks: Towards a relational perspective on judicial
politics outside Western democracies, International Political Science Review 2018, Vol. 39(5) at 574.
247
See for example, Segal, Je_rey, and Harold Spaeth. The Supreme Court and the Attitudinal Model
Revisited. NEW YORK, NY: CAMBRIDGE UNIVERSITY PRESS. 2002
248
Lisa Hilbink, The Origins of Positive Judicial Independence, CAMBRIDGE UNIVERSITY PRESS, Vol 64. No.
4, 2012, at 588.
249
Id. at 589. Hilbink provides a comparative analysis of Spain and Chile to assert the significance of judicial
role perception in judicial decision-making. In Spain, some judges began taking a stand against Franco regime
well before a transition to democracy was under way, engaging in a form of high risk activism. In Chile, by
contrast, judges refused to assert their authority through long periods of very competitive politics (before and
after Pinochet era).
In line with this view, some scholars argue that in many African states, judges were the
cornerstone of establishing institutions and legal cultures able to boost constitutional
conceptions of judicial independence and review.
250
Individual leadership of some judges
played a crucial role in institutional development of the judiciary. Those judges were
committed to the values of constitutional democracy including curbing the executive
authority, bolstering individual rights, and building a strong judiciary. Other scholars adopt
the same approach, asserting that whether or not judges expand their authority and get
embroiled in policy making decisions especially regarding individual rights, is mainly
contingent upon their specific attitudes towards rights.
251
Acknowledging that there are
other factors facilitating judicial involvement in rights issues, the initial push for this
judicialization of politics in this field would originate with a group of judges who share the
view that constitutions and bills of rights entail responsibilities for the government and
judges ought to utilize their power to guarantee its compliance with these constitutional
duties. If judges are not internally predisposed to enforce constitutional provision on
individual rights, it is unlikely that other factors would result in judicialization of politics
in rights issues.
This research argues that professional role perception of administrative judges, through
interactions with constitutional texts and legal inputs, is the major factor of judicialization
of mega-politics This judicial perception of their role as guarantor of rights and liberties
and a fundamental constitutional check on the executive authority is the result of
accumulated progressive judicial practice for the past decades- what I describe as
“progressive judicial legacy.” In other words, ideational characteristics of administrative
judges concerning their professional role have been institutionally and historically
250
Jennifer Widner, Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in
Africa. 2001. Widner focuses on the Tanzanian context, but she makes comparisons with other southern and
eastern African countries, including Kenya, Uganda, Malawi, Zambia, Zimbabwe, Botswana, South Africa,
and Namibia.
251
Rodrigo M. Nunes, Ideational Origins of Progressive Judicial activism: The Columbian Constitutional
Court and the Right to Health, LATIN AMERICA POLITICS AND SOCIETY Vol. 52 No. 3, Fall 2010 at 70.
formulated. The State Council judges hold the belief that they should be actively involved
in protection of individual rights and freedoms and guaranteeing the adherence of the
executives to the rule of law; and they shape their judgments accordingly. Therefore, they
express outright propensity, via their rulings, to engage in public policy-making in various
social, economic, moral and political issues.
In my opinion, the collective judicial role perception is the outcome of the judicial
progressive legacy formed via countless State Council rulings all over its history that have
meant to impose limitations on the executive’s hegemony over the society. Administrative
judiciary has a legacy of judgments, from the very beginning of the State Council history,
that imposes genuine restrictions on the executive, ensures that it works within the
constitutional and legal framework, and provides guarantees of public rights.
Since its establishment in 1946, the State Council has exercised review of the executives’
actions and decisions and issued numerous decisions demonstrating its active position of
protecting individual rights. Many of these cases were considered of political significance
as they were relevant to the political hegemony of powerful politicians over opposition.
For example, although Egypt underwent martial law for a very long period, the State
Council has constantly ruled that the decisions and measures taken by the executive to
implementation of martial law are not considered acts of sovereignty and shall be subject
to review of administrative courts to determine its compliance with law. In 1948, the Court
of Administrative Justice (CAJ) ordered the Minister of Defense to pay, from his own
patrimony, two thousand Egyptian pounds as a compensation to a military officer for not
implementing a judicial verdict in his favor.
252
In 1951, the State Council revoked the
252
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 165, session of 5 May. 1948,
year 1 (Egypt).
governmental forbiddance of opposition newspapers distribution
253
and in 1952 it reviewed
deportation decisions as administrative ones not sovereign acts.
254
During Nasser era, some statutes were enacted to exempt specific governmental decisions
from judicial review.
255
However, the CAJ was so bold that it declared these provisions are
unconstitutional
256
and therefore the court would not apply them,
257
although there was no
constitutional provision forbidding exempting administrative decision from judicial
review.
258
Furthermore, upon Sadat conclusion of the 1979 Peace Treaty with Israel and in
response to paramount opposition to this treaty, Sadat took numerous repressive decisions
against opposition including transfer of some journalists, transfer of some faculty
professors, seizure of some organizations’ funds and revoking authorization of some
newspapers. The State Council declared its competence over all these decisions on the basis
that they are all administrative decisions despite the apparent political motive behind
them.
259
The previous cases are few, albeit indicative, examples of the progressive judicial legacy
of the State Council. Since establishment, administrative courts have asserted their legal
authority vis-à-vis politicians in power, positioning the State Council as the shield of rights
and freedoms. Judges have expressed their willingness and capability of standing against
the political regime, within the ambits of constitutional and legal provisions, on behalf of
253
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 587, session of 26 Jun. 1951,
year 5 (Egypt).
254
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 282, session of 8 Apr. 1952,
year 4 (Egypt).
255
For example, Law 184/1958 on the universities regulation and Law no. 31/1963 on the dismissal of civil
servants other than by means of disciplinary measures.
256
These judgments were rendered before the establishment of the Egyptian Constitutional Court in 1969
which was exclusively entitled the constitutional review of legislative statutes.
257
Mohammed AbdelWahab, Administrative Judiciary, 2011 (Arabic) at 61.
258
Starting from the 1971 Constitution, consecutive Egyptian constitutions provides for forbiddance of
exempting any administrative decision or action from judicial review
259
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 3123, session of 22 Dec. 1981,
year 35 (Egypt).
protection of rights and boosting the rule of law. As Hilbink contends, judicial attitudes are
“not necessarily private/individual and exogenous but are often socially and/or
institutionally constituted.”
260
In my view, administrative judges’ selfunderstanding of their
role as guarantor of rights and freedoms against executives is basically shaped and
formulated by institutional legacy of progressive judicial activism, manifested a myriad of
rulings that limit the power of executives and guarantee fundamental rights.
Members of the State Council are undoubtedly diverse in their individual ideologies,
political orientations, and social backgrounds; however, they are committed to a unified
normative perception of their mission or duty as guarantor of rights and liberties and a
fundamental constitutional check on the executive authority. These normative ideas of their
role is constantly expressed in the State Council precedents. In numerous cases,
261
the State
Council ruled that
The State Council courts are entrusted with administration of justice,
protection of the principle of legality, the rule of law, and public and
private rights and liberties of Egyptians within the framework of
constitutional and statutory principles that govern the state and
society and determine the objectives of the public interest.144
This professional perception of the State Council role is in consistency with what jurists
describe as the substantial social function of administrative judiciary- guarantee of the
executives’ respect for individual rights and liberties stated by law
262
. The State Council is
a major check on the executive authority’s actions and decisions to ensure its adherence to
the principles of the rule of law. It is considered a fundamental pillar of a civilized
democratic state that guarantees basic rights. The evaluation of the administrative
260
Lisa Hilbink, supra note 97, at 596.
261
See e.g., Al-Mah. kamah al-Id. ārīyah al-‘Ulyā [Supreme Administrative Court], cases no. 1875 ,1914,
session of 9 Mar. 1991, year 30 (Egypt). See generally similar verdicts such as Al-Mah. kamah al-Id. ārīyah
al-‘Ulyā [Supreme Administrative Court], case no. 5730, 6585 session of 6 Feb. 2010, year 55 (Egypt) and
Mah-kamah al-Qadda’ al-Idāry [Court of Administrative Justice], case no. 33272, session of 7 Jul. 2012, year
55 (Egypt). 144 cibarA ni sdaer lanigiro ehT ةدايسو ةيعورشملاو ةيعرشلا ةيامحو ةلادعلا ةماقإ اهل دوهعم ةلودلا سلجم مكاحم
نوناقلا ماظنل ةمكاح ئدابمو لوصأ نم نوناقلاو روتسدلا صوصن هتدروأ ام راطإ يف نييرصملل ةصاخلاو ةماعلا تايرحلاو قوقحلا ةيامحو
ةلودلا
ةماعلا ةحلصملا تاياغو عمتجملاو.
262
MOHAMMED R. ABDELWAHAB, supra note 56, at 7.
judiciary’s functioning and effectivity should be based on the extent to which it performs
its social oversight role of the executives’ respect for individual rights and freedoms within
the constitutional and regulatory framework.
263
The progressive judicial legacy lies in the core of administrative judges’ beliefs and
embolden them to declare null and void any action or resolution of the executive however
significant and whoever its issuer may be. Administrative judges bear in their collective
mind that the judicial entity to which they belong i.e. the State Council, was mainly founded
to provide checks on the executive. This inherited boldness increases the probability of
administrative judges to massively involve in the policy-making process either by declaring
the illegitimacy of a governmental public policy in force, or by ordering the executive to
adopt a certain one, emanating from their interpretation of the constitution and ordinary
statutes.
Conclusion.
263
Id. at 8.
Over the past decades, judicial power has expanded all over the world.
264
Courts all over
the world make significant policy decisions that were previously perceived as the purview
of politicians. Judges gradually expand their authority and constantly issue rulings
pertaining to the most pivotal social, economic and political predicaments in many
countries. The process of policy-making has been deeply integrated with the core function
of judges to interpret and apply the law. This led to the emergence of what may be termed
the “judicialization of politics”. The judicialization of politics has expanded its ambit to
comprise what is termed “mega-politics”- matters of ultimate political significance in a
society.
Analysis of administrative courts’ judgments clearly indicates the occurrence of the
judicialization of mega-politics. There are three forms of such judicialization. First, it
appears when the judiciary narrowly defines the doctrine of sovereignty acts as one of the
cornerstone prerogatives of the executives. Second, it is apparent when administrative
courts perform explicit judicial law-making concerning pivotal matters, as an involvement
of the judiciary into the substantial prerogative of the legislatures. Third, the phenomenon
is observed when the judiciary get embroiled in adoption or abolition of a public policy
related to substantial social, economic, or political questions.
The tendency of the State Council towards the judicialization of mega-politics may be
attributed to the convergence of an array of factors including institutional elements, legal
mobilization and judicial attitudes. First, there are three basic institutional factors that
contribute to the judicialization of mega-politics. They are the existence of a constitutional
framework that facilitates judicial activism, the development of a modern complex state
with large bureaucratic machinery and the accessibility of the State Council courts,
compared to the Supreme Constitutional Court (SCC). Second, legal mobilization by
effective social and political actors seeking for social change via strategic litigation before
the State Council is considered a substantial factor leading to the judicialization of mega-
264
Tom Ginsburg, supra note 3 at 81.
politics. Third, professional role perception of administrative judges, through interactions
with constitutional texts and legal inputs, is the major factor and the main driving force
behind the judicialization of mega-politics The judicial perception of their role as guarantor
of rights and liberties and a fundamental constitutional check on the executive authority is
the result of accumulated progressive judicial practice for the past decades- what I describe
as “progressive judicial legacy.”
