A Ruling Ten Years in the Making: Egypt’s SCC on Judicial Oversight Over Public Law Contracts

An elementary principle of constitutional law holds that a constitutional amendment alters or nullifies preexisting and conflicting constitutional provisions. Can we imagine a scenario in which ratification of a new constitutional amendment would leave preexisting conflicting constitutional provisions fully intact, unaltered, and undisturbed? This Article argues that the best understanding of fundamental adjudicatory principles compels us to recognize just such a possibility. The linchpin of the argument lies in the idea that constitutional provisions emanate from two distinct sources, and therefore are of two distinct classes, with one class hierarchically superior to the other. Under the extant constitutional orthodoxy, all constitutional provisions emanate from a single source -- We the People -- either via Article VII, the Constitution's ratification provision, or Article V, the Constitution's amendment provision. A major portion of this Article is dedicated to debunking the orthodox vision. An accurate description must admit that constitutional provisions emanate from two separate and distinct sources -- We the People and ordinary legislatures. Constitutional amendments are especially vulnerable to the charge that they emanate not only from We the People, but also from ordinary legislatures. Rather than directly consulting the popular sovereign, Article V employs state legislative bodies as agents through which We the People purportedly act to ratify new constitutional provisions. When Article V's principal-agent mechanism operates well, the state legislatures ratify amendments reflecting and embodying the popular sovereign's deliberated consensus sanctioning the creation of new higher law principles. In such cases, passage via Article V signals and formalizes We the People's act of constitutional textual norm generation. Principal-agent relationships, however, are always subject to agency problems. When Article V's principal-agent mechanism breaks down the state legislatures ratify amendments over which the popular sovereign has not reached a deliberated consensus, or even ratify amendments contrary to a deliberated popular consensus. In such cases, the formal satisfaction of Article V requirements does not signal an act of We the People. It instead signals the creation of a new constitutional provision by ordinary government institutions -- state legislatures -- which malfunction as agents through which We the People act. For this reason, at least some constitutional amendments are bound to lack a legitimate popular sovereignty pedigree. Once courts acknowledge that constitutional provisions spring from two separate and distinct sources -- both We the People and ordinary government institutions -- straightforward application of the adjudicatory meta-norms that govern all cases in which legal norms conflict leads to three related conclusions: Popular sovereign-generated and legislature-generated constitutional provisions (1) are different in kind, (2) are hierarchically ordered, and (3) when in irreconcilable conflict, the former must always and unconditionally trump the latter, regardless of which norm is of more recent vintage. As such, a preexisting constitutional provision bearing a true popular sovereignty pedigree should trump a conflicting newly ratified constitutional provision which lacks a true popular sovereignty pedigree.

How do democratic ideals and constitutional provisions of inclusive citizenship and “reasonable classification” of universal rights to combat social oppression and promote social justice get worked out in the crannies of state policies, citizen politics and legislative and legal pronouncements? This article addresses these issues by revisiting the convoluted trajectory of positive discrimination (termed “reservation”) in India as an illustrative and instructive example. It combines an innovative reading of Constitutional Assembly Debates, constitutional provisions, constitutional amendments, and crucial Supreme Court rulings to trace the gradual undoing of constitutional ideals and provisions. An exploration of changing state policies in tune with the imperatives of a neo-liberal Hindu authoritarian regime, and shifting electoral demands of privileged upper castes and classes, allows the article to underscore a radical shift in ethos that has resulted in an interrogation of constitutional provisions for social equality and justice. A lack of consensus on the justifiability of (re)distribution of resources by extending special benefits to the socially suppressed (“backward”) castes and classes of citizens, has laid bare the ambiguities inherent in constitutional ideals and provisions, highlighted the resourceful use of such ambiguities by the socially entitled citizens to disavow caste-based social oppression, and insist on economic weakness that hampers equal opportunity as the fair ground for “reservation.” A shift in emphasis from “social backwardness” of the oppressed to “economic weakness” of the advantaged in the language of the state ratified by the Supreme Court, underscores the undemocratic consequences of democratic provisions. A serious interrogation of the fairness of reasonable classification of equality and the justifiability of distribution on the part of the socially privileged, has served to disavow calls for social justice and recognition of difference by the oppressed, and overturned the basic premise of equal respect that ground liberal theories of social justice and social democracy.

Muslim Brotherhood's Freedom and Justice Party gained an electoral victory in the 2011-2012 Egyptian Parliamentary elections. It has often been argued that among the likely outcomes of Muslim Brotherhood control of the People's Assembly would be the establishment of a tyrannical theocratic regime akin to that of Iran. However, what an Islamic state means and what the application of sharī'a would entail in the context of the modern Egyptian state remains an open question, and calls for the enforcement of sharī'a are often unclear about the institutional framework that would regulate its interpretation. This article analyzes Muslim Brotherhood statements about the public role which the organization sees for the 'ulamā' of al-Azhar and their function in the legislative process. It also analyzes the statements of Azharite and other'ulamā' and Islamic intellectuals concerning the construction and defense of their religious authority. Contrary to the mentioned assumptions, the Muslim Brotherhood tends toward preserving existing institutions. This includes retaining al-Azhar as the representative body of religious authority, at the same time as keeping the Supreme Constitutional Court as final interpreter of the sharī'a provision of the Egyptian Constitution (in Article 2). On the other hand, there are also controversies within the Brotherhood about the role of the 'ulamā' of al-Azhar vis-à-vis the Supreme Constitutional Court, a question that also occupies the Azharites themselves. This article outlines the complex and varied positions on these issues both within the Muslim Brotherhood and among the 'ulamā' of al-Azhar.

In order to examine the legal foundation upon which laws are built, this research study began by examining the historical context that followed the evolution of the Palestinian judicial system in general and the problem of monitoring the constitutionality of legislation in particular. Up to the provisions governing the court's operations, it has judicial oversight over the constitutionality of laws in Palestine, which serves as a legal pillar upon which the Supreme Constitutional Court of Palestine bases its work. It focuses on the nature of the court's rulings and decisions to confirm how much they adhere to the standards of constitutional justice. In order to achieve the objectives of the study, we must follow the descriptive analytical approach, which will enable an accurate description of how the Supreme Constitutional Court in Palestine dealt with the issue of oversight of the constitutionality of laws and the legal basis on which judicial oversight of the constitutionality of laws in Palestine is based, and then work To analyze and synthesize it in a way that reveals to us a cognitive interpretation that leads us to draw research results that will enable us to evaluate the established supervisory model and judge its ability to establish standards of constitutional justice.

This paper aims to provide an analysis of the impact of constitutional review on legislative omissions, their impact on constitutional authoritarianism by the Supreme Constitutional Court, and how constitutional review affects rights and freedoms, as well as the validity of legislation. The paper also aims to present the effects of constitutional review on the relationship between authorities (Al-Dughili, 2018). In light of the principle of separation of powers, and the potential for tension between the judiciary and the legislature. The paper employs an analytical approach to examine judicial rulings issued by the Supreme Constitutional Court, aiming to determine the criteria for ruling on the unconstitutionality of legislative omissions, the extent of constitutional judicial intervention in the legislative process, and the potential repercussions of such rulings on all aspects. The paper reached several conclusions, the most important of which is that the Supreme Constitutional Court, with its authority to exercise constitutional oversight over legislative actions, can maintain legal security. However, constitutional judicial oversight over legislative omissions has some adverse effects, which are represented by tension in the relationship between the constitutional judiciary and the legislative authority, which may lead to exposing the powers of the constitutional judiciary to constitutional judicial oversight over legislative omissions to danger. It may also contribute to legislative tyranny and the seizure of legislative authority by the constitutional judiciary.

On July 3, 2013, General Abdel Fattah el-Sisi, Egyptian Army Chief, ousted President Mohamed Morsi from power. Morsi, elected in 2013, had been Egypt’s first ever democratically elected president. Following the coup, the Chief Justice of the Supreme Constitutional Court of Egypt, Adly Mansour, was installed as interim president; Morsi was put under house arrest and several members of the Muslim Brotherhood – the political party to which Morsi belonged - were either arrested or killed. General el-Sisi also suspended the 2012 constitution, which was promulgated only a few months earlier, and issued a constitutional decree to make amendments to the constitution.1 The amendments were to be proposed by a constitutional committee composed of fifty members. 2 The committee had hardly begun its work when foreign observers began to refocus most of their attention on speculating just how “Islamic” the amended constitution might be.3 And indeed, the committee was soon in a gridlock over the role of Islam in the new constitution.4 Egypt’s 1971 and 2012 constitutions had contained clauses entrenching the principles of Islamic law as the primary source of legislation; accordingly, some had called the 2012 constitution an “Islamic” Constitution, while others had alleged that it leaned toward “conservative” Islam.

Objectives: This study aims to shed light on the role played by the constitutional judge in protecting the rights and freedoms of individuals, highlighting the aspects of oversight over the constitutionality of laws. It begins by examining comparative constitutional systems, followed by an exploration of the Algerian experience to understand the various aspects of this oversight, particularly after the adoption of the constitutional amendment in 2020, which established the Constitutional Court instead of the Constitutional Council that Algeria had known since 1989. Methodology: The study adopts a range of scientific research methods, starting with the analytical approach, which involves analyzing constitutional and legal texts governing the work of the Constitutional Court. Additionally, a comparative approach is employed, comparing the mechanisms of constitutional oversight in different countries, as well as comparing the new powers of the constitutional judge in the newly established Constitutional Court according to the 2020 constitutional amendment with the provisions related to the work of the court, as it was previously for the Constitutional Council. Results: We concluded that oversight over the constitutionality of laws, as a guarantee for public freedoms, varies between political and judicial oversight, and it has been adopted in most comparative constitutional systems, including the Algerian system, which introduced the Constitutional Court as a constitutional institution that protects individual freedoms by ensuring the respect of laws and regulations for the constitution and avoiding any violation of it through issuing decisions regarding their conformity with the constitution. Despite the recent establishment of this constitutional institution, it has proven to be effective and efficient in addressing any legal provision that may violate the constitution and infringe upon the rights and freedoms of individuals. Conclusion: Constitutional oversight is considered one of the most important guarantees for safeguarding the rights and public freedoms of individuals. Given the supreme position of the constitution, legal provisions should not contradict its broad meaning. Algeria, starting from the issuance of the 2016 constitution, recognized the concept of unconstitutionality, allowing any litigant before ordinary or administrative judicial bodies to claim that a legislative or regulatory judgment applied to the dispute violates their rights and freedoms guaranteed by the constitution. After the constitutional amendment of 2020, the Constitutional Court became an independent institution entrusted with ensuring respect for the constitution with expanded powers. Within the framework of the powers of the constitutional judge, in addition to what has been mentioned, it is worth noting that the Constitutional Court, as a guarantee for rights and freedoms, issues an opinion when the President of the Republic submits a constitutional amendment, provided that it does not affect the rights and freedoms of individuals.

Limitation and amendment of rights A fundamental distinction exists between the amendment of a constitutional right and its limitation. The amendment of a constitutional right requires an amendment of the constitution, while a limitation of the right is possible with no constitutional change. The distinction stems from the more basic distinction between the right’s scope and the extent of its protection. An amendment of a right entails a change – a narrowing or expansion – of its scope; such a change, in turn, affects the persons and institutions governed by the right, its content, or its application in terms of time and place. Thus, for example, a constitutional amendment would be a change in a constitutional provision – which currently applies to any person – according to which the provision would, from now on, apply only to citizens. Such a change is possible only through the mechanism of a constitutional amendment. Here, the proportionality of the constitutional change does not play a role. A statutory provision which intends to lead to such a change in the constitution is unconstitutional regardless of its proportionality. Conversely, a limitation of a constitutional right only narrows the ability to realize the right without changing the right’s actual boundaries. These limitations are constitutional only if they are proportional, as required by the limitation clause. The distinction between a constitutional change (which requires a constitutional amendment) and the limitation of a constitutional right (through a proportional sub-constitutional law) is not always self-evident. The proper criterion to distinguish between the two should be objective in nature and not require an inquiry into the subjective intent of the law’s creators. Naturally, the application of such an objective test may lead to substantial difficulties. Take, for example, the Canadian Supreme Court case of Quebec Protestant School Boards . There, the court was asked to examine the constitutionality of a Quebec statute that limited the acceptance of English-speaking students who studied English outside Quebec into English-speaking schools in Quebec, in an alleged violation of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court held that the proposed change – through a statute – to the constitutional right cannot be considered a mere limitation whose constitutionality need be determined by the provisions of the limitation clause. Rather, the change should be seen as a complete denial of the constitutional right without following the rules required by the Charter for a constitutional amendment. Therefore, the court invalidated the statute and declared it unconstitutional; importantly, it did so without even examining whether the proposed change was as per the limitation clause. The court then added the following clarification: An Act of Parliament or of a legislature which, for example, purported to impose the belief of a state religion would be in direct conflict with Section 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by Section 1. The same applies to [the Quebec provision] in respect to Section 23 of the Charter. A more recent ruling by the Canadian Supreme Court emphasized that only a “complete denial” of the constitutional right would not be considered a mere “limitation” and therefore not examined through the lens of the limitation clause. The decision was heavily criticized. Hogg argued that there is no rational basis to differentiate between a right’s “denial” – whether partial or complete – and a right’s limitation. In his opinion, any denial (partial or complete) should be considered a limitation whose constitutionality should be determined by the limitation clause. It is hard to support such an approach. With all the difficulties arising from the distinction between a constitutional change of a right and its limitation, these difficulties should not deter us from using this analytically sound, constitutionally vital, distinction.

Article 84 of the Constitution, which stipulates the criminal privilege of the President, was stipulated in the Constitution due to the need to ensure the exercise of his duties as President and to maintain the dignity and authority of the state, and has remained largely unchanged from the Founding Constitution to the present. However, the scope of application of Article 84 remains unclear and ambiguous due to conflicting interpretations and lack of discussion. In addition, discussions on constitutional amendments, which have been attempted several times with the aim of abolishing the imperial presidency and establishing true decentralization, have not paid much attention to Article 84. Therefore, it is necessary to clarify Article 84 through constitutional amendments, and the French case is worth looking at positively. In the case of France, the constitutional amendment regarding the criminal liability of the president emphasized the status and duties of the president rather than equality before the law. This choice by the French constitutional amendment authority is consistent with the fact that the Constitution of the Fifth French Republic, unlike the previous republics, adopted a form of government in which the status and authority of the president is substantial. In our case, we believe that equality before the law and the status and duties of the President under the Constitution are factors to be considered equally when developing a constitutional amendment regarding the scope of Article 84 of the Constitution, and it is up to the constitutional amendment authority to decide which point to emphasize. However, regardless of the choice made by the constitutional amendment authority, the constitutional amendment should at least be consistent with other constitutional provisions and the overall system of the constitution from the perspective of constitutional unity and consistency.

. The constitutional amendments of 2020 significantly changed the provisions of the basic law in terms of the organization and coordinated functioning of all branches of government. The implementation of the innovations introduced on the judicial system was the subject of discussion at the X Anniversary Congress of judges of Russia in December 2022, which identified both measures to implement constitutional amendments and, in general, directions for improving judicial activity in the coming years. Many new constitutional concepts and provisions, as well as decisions of the IХ and X congresses of judges in their unity, imply comprehension, appropriate interpretation and, in general, scientific support, including monitoring of the level of execution. The purpose of this study is to analyze the new constitutional provisions on the judicial system and the ways of their implementation in the context of the materials and decisions of the IX and X congresses of judges. On this basis, the determination of the author’s position on certain issues of judicial activity and the development of proposals for improving the legal framework of judicial.

Following the change of political system in 2003, the Republic of Iraq adopted federalism as a new political system in Iraq. The Federal Constitution has recognized the entity of the Kurdistan Region as a federal region and then guaranteed its right to establish its own constitution. Beside regulating relationship between the ruler (the government) and the ruled (people), the importance of KR-I constitution becomes evident due to the special situation of KR-I in Iraq and also to create a supreme law in the region outlining the structure and powers of authorities, and how to be exercise and fully respected by the authorities of the region and the federal government too. The establishment of a regional constitution in federal systems in general is beset by several legal and practical difficulties because the regional constitution must be consistent with the provisions of the federal constitution and practically the federal and regional authorities are likely to clash or encroach on others’ authorities.  This research analyzes the consistency of the KR-I’s Constitution (draft) especially with the basic principles, enumerated powers of the federal government and, the rights and freedoms of individuals stipulated in the Iraqi Constitution. It acknowledges that any violation of the provisions of the Iraqi Constitution opens the road for the Federal Supreme Court to review and abolish the inconsistent provisions in the KR-I Constitution and the Supreme Constitutional Court in KR-I may not be able to do much to protect the Constitution of the region in such cases

Although it has not been constitutionally empowered to do so, the Turkish Constitutional Court has exercised substantive review of constitutional amendments under three different constitutional settings, striking down amendments to the normally amendable provisions of the Turkish constitution. In doing so, it relied upon the unamendability clauses. The Court created an intra-constitutional hierarchy based on the unamendable clauses and exercised substantive review of constitutional amendments to check whether amendments violated the principles laid down in the unamendable clauses. This chapter looks at whether this judicial practice of identifying a constitutional core and exercising substantive review of constitutional amendments on this basis can find a justification in Carl Schmitt’s distinction of the constitution and constitutional laws. In the first part, it argues that while Schmitt’s distinction, which is based on democratic decisionism, might justify the Court’s reasoning that there are limits to constitutional amendment; his understanding of the guardian of the constitution is incompatible with the judicial oversight of the constituent decision. What makes Schmitt’s radical democratic constitutional theory consistent is his conception of the popularly elected head of state as the guardian of the constitution. Such conceptual justification of constitutional unamendability is not compatible with judicial review of constitutional amendments. In the second part, the chapter analyses all of the unamendability cases the Turkish Constitutional Court has decided and explains the Court’s arguments with regard to its authority over constitutional amendments. The chapter concludes by explaining that even if a Schmittian account of the constitution is adopted, the unamendability clause in the Turkish constitution remains a merely political and not a judicial check on the constitutional amendment power.

This article examines the 2005 amendments to the Egyptian constitution that were intended to change the presidential selection system from a single-nominee referendum to a multi-candidate election. Through a careful study of the amendments and the related laws, it shows that while on the surface this amendment looks as though it opens the presidential elections to multiple candidates, its actual goal is to perpetuate the rule of President Mubarak and his National Democratic Party. Further, by entrenching the new election system through a detailed constitutional amendment, the Egyptian regime has subverted the powers of the Supreme Constitutional Court (SCC) to score a significant victory for the executive and legislative branches in their ongoing cold war with the SCC.

Constitutional amendments in Africa often challenge the principles of constitutionalism, democracy, good governance, and the rule of law. While constitutions are designed to be stable and reflect a nation's enduring values, amendments frequently focus on extending presidential terms, weakening the separation of powers, and undermining judicial independence. Domestic mechanisms to safeguard against such changes are often insufficient, with constitutional provisions and referenda susceptible to manipulation. This paper examines the African Union (AU) and Regional Economic Communities (RECs) in addressing these challenges. Both institutions claim a commitment to upholding constitutionalism and democracy, yet their normative frameworks inadequately address the risks of constitutional amendments. Despite the AU’s pronounced opposition to unconstitutional government changes, its response to constitutional amendments that erode governance principles has been inconsistent and undermined by uncertainties regarding subsidiarity with RECs. The paper argues that these shortcomings render the AU’s efforts akin to a Sisyphean struggle, where progress toward promoting the rule of law and democracy is undone by its inaction on amendments that subvert these values. The AU and RECs must adopt a more coordinated and decisive approach to constitutional changes to prevent further erosion of constitutionalism in Africa.

General Background: Since the Reform Era, Indonesia has undergone extensive political and constitutional transformation that renewed demands to reorganize national governance through amendments to the 1945 Constitution. Specific Background: The re-emergence of constitutional amendment discourse after 27 years of Reform raises concerns about unstructured changes that may weaken constitutional authority and threaten national integrity. Knowledge Gap: Indonesia has not yet established explicit constitutional provisions identifying which foundational norms must remain unamendable. Aims: This study aims to formulate a normative framework for determining non-amendable constitutional provisions to ensure orderly amendments and preserve constitutional stability. Results: The findings show that the MPR must adopt fundamental agreements protecting the following from amendment: the Preamble, the state ideology, the goals of the state, the form of the state, the separation of powers under checks and balances, human rights guarantees, and procedures for constitutional amendment in emergencies. Comparative analysis shows that many countries, including Germany, France, Portugal, Spain, and Turkey, maintain similar immutable clauses. Novelty: This study offers a comprehensive normative construction of unamendable provisions within Indonesia’s constitutional framework. Implications: Explicitly regulating immutable constitutional clauses is essential to safeguard constitutional supremacy and prevent national disintegration. Highlights: Identifies core constitutional elements that must remain unamendable to preserve state integrity. Highlights the need for structured and principled constitutional amendment procedures. Shows that Indonesia aligns with global constitutional practices protecting foundational norms. Keywords: Constitutional Amendment, Unamendable Provisions, Constitutional Stability, Indonesia, Constitutional Law