Egypt – The New Amendments of the Supreme Constitutional Court Law No. 48 of 1979: A Commentary

8 September 2021 - Hatem Darweesh

In June 2021, the Egyptian cabinet drafted and prepared a draft law that was meant to introduce certain amendments to Law No. 48 of 1979 (“SCC Law”) that governs the authority and powers of the Egyptian Supreme Constitutional Court (“SCC”). According to what has been extensively discussed at the time of proposing the draft, the new amendments aimed at extending the ambit of the SCC’s purview to issues of constitutionality that relate to (i) decisions and resolutions issued by international organizations; (ii) judgments issued by foreign courts that involve the Egyptian state and (iii) arbitration awards issued against the Egyptian state. Backed by “national security” concerns, the amendment granted the Egyptian Prime Minister the power to refer these decisions, judgments, and awards to the SCC to rule on their constitutionality and order their unenforceability should they prove unconstitutional.

Before its enactment by the Egyptian President, the amendment was reviewed by the SCC’s General Assembly. The draft was later sent to the House of Representatives. On August 18, 2021, the Egyptian President ratified the law that ultimately kept international arbitration awards at bay from the long arm of the SCC. By virtue of what has been officially ratified and passed, the Prime Minister may request the SCC to issue a judgment to review the constitutionality of international organizations’ decisions and foreign courts’ rulings and render them unenforceable in Egypt for reasons of unconstitutionality (Articles 27 (bis) and 33 (bis) of the SCC Law).

Conventionally, the Supreme Constitutional Court is responsible for reviewing the constitutionality of laws and regulations and other roles that involve rendering mandatory statutory interpretations and resolving conflicting judgments issued by the two branches of the judiciary. With the new amendments, the purview of the SCC has now markedly extended to include the constitutional review of foreign judgments along with decisions issued by international organizations, which the Egyptian state is under a positive obligation to enforce.

Although international arbitration awards are now excluded from SCC’s oversight as per the amendment, the reasons behind such exclusion remain unknown, and rather the entire inclusion-then-exclusion cannot be anything but bewildering, especially because arbitration awards seemed to have been the main driver behind proposing and introducing the amendments in the first place, or at least according to what has been openly discussed at the time of putting forth the draft law.

Unfortunately, no confirmation has yet been given by the government or the House of Representatives on this topic to put this debate to rest. Nevertheless, we are of the strong opinion that international arbitration awards are categorically excluded from the SCC’s oversight according to the basic tenets of interpretation.  Simply put, since international arbitration awards were initially part of the proposed amendments, such exclusion may only be construed to exclude them from the SCC’s substantive review process positively; otherwise, the amendment would have been ratified with the same syntax that was initially proposed. Despite this exclusion and absent a definitive confirmation to this effect, the fate of whether international arbitration awards shall remain susceptible to a substantive second-guess remains unclear, especially that the term “international organizations” can be interpreted liberally to include international arbitration institutions as well (the International Centre for Settlement of Investment Disputes (ICSID), in particular).

On the international plane, and even though the impact of these amendments shall remain territorial, their effect on Egypt’s international obligations cannot go unnoticed with respect to Egypt’s political and economic implications. Objecting and electing to render international organization’s decisions unenforceable, even by court order, may validly be considered a violation of the Egyptian constitution and the plethora of treaties and regional and international organizations to which Egypt is a signatory or a member. On the economic front, a failure to implement foreign monetary judgments may not necessarily send a positive message about Egypt’s international integration.

In all events, and since the amendments are still new, we hope the practice of the SCC of this new role will be limited in a manner that would not quash what the Egyptian state has fought hard and well to achieve over the last two decades.

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