By the early 1990s, the Supreme Constitutional Court had become a significant force in the Egyptian political system. In the economic sphere, it played a leading role in overturning Nasser-era nationalization laws, with an early willingness to push the pace and the extent of compensation much further than the government had intended. In the political sphere, the SCC also issued surprisingly strong rulings that twice forced the dissolution of the People's Assembly and a complete restructuring of the electoral system for local and national elections. Throughout the 1980s, the interests of civil associations, opposition parties, and the SCC began to converge, and a judicial support network began to take shape.

These synergies were accelerated as the Court became more assertive under the leadership of Chief Justice ‘Awad al-Murr during the period from 1991 to 1997. Al-Murr led a new group of justices who were appointed to the SCC through its unique process of internal recruitment, replacing the justices who had been transferred from the regime-dominated Supreme Court in 1979. Under ‘Awad al-Murr, the SCC began to use international law to bolster its rulings, and it forged new institutional links with foreign jurists and international rights organizations. The SCC also made itself the focal point for reform efforts by continuing to open space for political activists.

In the name of the people,

The President of the Republic,

The following law having been adopted by the People's Assembly is promulgated.

1. Article 1: The provisions of the attached law shall apply to the Supreme Constitutional Court.

2. Article 2: All cases and applications pending before the Supreme Court, and falling within the jurisdiction of the Supreme Constitutional Court in accordance with the attached law, shall be referred to this court immediately following its formation and without judicial fees. In addition, all requests suspend the execution of judgments rendered by arbitration organs that were binding before the Supreme Court will be referred to the Supreme Constitutional Court without judicial fees. These requests will be ruled upon in accordance with the Law No 81 of 1969 promulgating the Supreme Court's law, and Law No 66 of 1970 promulgating the law concerning procedures and fees enforceable before it.

3. Article 3: The provisions of Articles 15 and 16 of the attached law shall apply to cases and applications related to recusation and disputes addressed against members of the Supreme Court as well as applications related to their salaries, pensions and related matters.

4. The Supreme Constitutional Court shall exclusively decide upon all of these cases and applications.

5. Article 4: The Supreme Constitutional Court shall be represented in the Supreme Council of Judicial Bodies by the Chief Justice. In his absence, the most senior member will carry out this duty.

6. Article 5: Without prejudice to the provisions of paragraphs 3 and 4 of Article 5 of the attached Law, the first formation of the Supreme Constitutional Court, will be established by a presidential decree which includes the appointment of the Chief Justice and the members of the court, on condition that these appointees meet the requirements specified in the attached law, and upon consultation of the Supreme Council of Judicial bodies regarding the appointment of members of the court. Those members shall take the oath mentioned in Article 6 of the attached law, which shall be sworn in before the President of the Republic.

7. […]

By the late 1990s, the Egyptian government was increasingly apprehensive about Supreme Constitutional Court activism. In less than two decades of operation, the SCC had become the most important avenue for political activists to challenge the regime, and the Court continued to issue scores of rulings that incrementally undermined the regime's levers of control. Egyptian human rights groups were exposing the repressive nature of the government both at home and abroad, and rights groups had begun to formalize their strategies of constitutional litigation. By 1998, rights groups were raising dozens of petitions for constitutional review every year. Intent on reasserting its authority, the regime steadily tightened its grip on the SCC, the human rights movement, and opposition parties in the late 1990s.

This chapter examines the fall of Supreme Constitutional Court independence between 1998 and 2005. In this period, the SCC and its judicial support network attempted to stave off political retrenchment by mobilizing on behalf of one another. Early challenges to the Supreme Constitutional Court generated resistance from opposition parties, human rights groups, professional syndicates, and the legal profession. Likewise, the SCC played a crucial role in defending the human rights movement and opposition parties with two of its boldest rulings: one against the government's repressive 1999 NGO law and another that required full judicial supervision of elections.

Constitutional Proclamation

We, the people of Egypt, who have been toiling on this glorious land since the dawn of history and civilization, we the people working in Egypt's villages, fields, cities, factories, centers of education and industry in any field of work which contributes to the creation of life on its soil or plays a part in the honor of defending this land,

We, the people who believe in its spiritual and immortal heritage and who are confident in our profound faith and cherish the honor of man and of humanity at large,

We, the people who in addition to preserving the legacy of history, bear the responsibility of great present and future objectives whose seeds are embedded in the long and arduous struggle, with which the banners of liberty, socialism and unity have been hoisted along the great march of the Arab Nation,

We, the Egyptian people, in the name of God and with His assistance pledge to indefinitely and unconditionally exert every effort to realize:

Peace to our world

Being determined that peace can only be based on justice and that political and social progress of all peoples can only be realized through the freedom and independent will of these peoples, and that any civilization is not worthy of its name unless it is free from exploitation whatever its form.

Why did Egypt's authoritarian regime establish an independent constitutional court in 1979 when only twenty-five years earlier it had worked to undermine judicial power? From the standpoint of the mainstream comparative law and politics literature, the birth of the Egyptian Supreme Constitutional Court presents a surprising anomaly: an entrenched regime facing no credible challengers established an autonomous court with the ability to strike down regime legislation.

The motives for judicial reform make somewhat more sense when viewed from a political-economy angle. The passages above by eighteenth-century economist Adam Smith and Nasser's Minister of Interior nicely illustrate one of the principal tradeoffs that authoritarian regimes face when they remove constraints on their power.

Scholars and policymakers have placed a great deal of faith in judicial reform as a cure-all for the political and economic turmoil plaguing developing countries in Latin America, Asia, Africa, and the Middle East. Rule-of-law institutions have been charged with safeguarding human rights, spurring economic development, and even facilitating transitions to democracy. These expectations are grounded in our understanding of the way that legal institutions, markets, and the state developed in the West. Although dependency scholars and others have highlighted the radically different circumstances that “late-late” developing countries face, there is still a pervasive assumption that rule-of-law institutions, market economies, and democracy are self-reinforcing. Indeed, these relationships seem both intuitively sound and historically accurate.

Some of the earliest writings in the social sciences by Adam Smith, Max Weber, David Ricardo, and others examined how independent and effective judicial institutions provided the stable property rights system necessary for long time horizons and vigorous private investment. Similarly, judicial institutions are seen as essential tools for providing the checks and balances necessary to curb arbitrary rule. In this view, arbitrary rule is inimical to democratic governance and viable market economies alike, making legal infrastructure essential not only to enforce the rules of the economic game, but to enforce the rules of the political game as well. Finally, we have long observed that economic growth and market economies are positively correlated with the social requisites for democracy.

This volume contains some 240 of the most important international, regional, and national standards and judicial decisions recognising and addressing the many complexities associated with the housing, land, and property restitution rights of refugees and displaced persons. Many additional laws, cases, and materials on these themes are also in place throughout the world, but the selection found here attempts to provide an accurate and reasonably detailed picture of the current state of affairs with respect to these rights set within their various normative contexts.

The texts included within this book – that can be seen as collectively forming the normative basis for the right of refugees and displaced persons to have restored to them the housing, land, and property rights they held at the time of their displacement – stretch back ten decades to the Hague Conventions of 1907. Throughout the past century, numerous standards have been proposed, discussed, and ultimately approved on restitution, both internationally and at the national level. Over time, these documents have become increasingly specific, in the process refining the precise rights to housing, land, and property restitution enjoyed by those forced by circumstances beyond their control to flee their homes and lands.

In many respects, 2005 was witness to a high point of international standard-setting on these issues, with two vitally important new restitution standards being approved by United Nations (UN) bodies that considerably augment the housing, land, and property restitution rights of refugees and displaced persons.