Former judge files Supreme Court challenge of Egypt's contentious charter

Mohammed Morsi addresses the newly convened upper house of parliament in Cairo, Egypt, Saturday, Dec. 29, 2012. (Egyptian Presidency)

CAIRO, Egypt -- The only female judge to sit on Egypt's highest court said Tuesday she has filed the first legal challenge against the country's highly contentious constitution, which cost her the seat she held.

Tahani el-Gebali said she filed her complaint to the Supreme constitutional Court questioning the legality of the charter, which she said was drafted and passed illegally.

But experts said they doubted the constitutional court would try to intervene in the charter now that it was approved in a referendum last month. Doing so would likely spark a direct clash with Islamist President Mohammed Morsi. Though Morsi and judges have been sharply at odds throughout the constitution-writing process over the powers of the executive and judiciary, judges have hesitated to outright overrule him.

The constitution has sharply polarized Egyptians. The opposition organized massive rallies last month against the charter, deadly clashes erupted and there were calls for delaying a national vote on it. Still, the document passed by a 64 per cent 'yes' vote in a referendum in which around only 33 per cent of voters participated.

Morsi and supporters of the charter had argued its passing would restore stability to Egypt and complete a rocky transition toward democracy. But the opposition challenged it because it was drafted by a Constituent Assembly dominated by Islamists amid a boycott by liberal and Christian members.

The court is to convene on Jan. 15 for the first time since the constitution came into effect. It is unclear whether it will immediately look into el-Gebali's suit.

El-Gebali, who sat on the constitutional Court for nearly a decade, was removed from her post because the new constitution reduced the size of the court from 18 judges to 10, in addition to the chief judge. Within the judiciary, el-Gebali was one of the most vocal opponents to the rise of the Muslim Brotherhood to power, even urging the then-ruling military last year against quickly holding parliamentary elections, since Islamists would likely win the biggest share -- as eventually happened.

On Tuesday, el-Gebali said she asked the court in her suit, filed earlier this week, to nullify the consequences of the constitution's passage, including the judge reduction in judges. She argues that the forced reduction violates the independence of the constitutional Court, as do other provisions in the constitution that she said put the court under the grip of the president, who approves its members, and deny the court's general secretariat the power to select its own members.

"The threat to the rule of law and judicial independence is what is most dangerous about the decisive moment that Egypt is going through," el-Gebali told a press conference in which she announced her legal complaint.

"Do these people realize what they are doing to the nation?" she said. "Blood was shed for the sake of this document."

El-Gebali said the article reducing the court's size was "vengeful," suggesting it was tailored to remove her and other Brotherhood critics on the court.

The passing of the charter was mired in an unprecedented dispute between the president and the court, and the judiciary at large. In November, Morsi issued presidential decrees that made him and the constitutional Assembly immune from judicial oversight. The decrees aimed to prevent the constitutional court from dissolving the assembly, but it sparked a backlash from the judiciary, which said Morsi was trampling on their independence. Morsi and his supporters accused the courts of being a tool of political opponents to block their agenda.

Amid the height of ensuing crisis, the court tried to convene to rule on the assembly's legality, but its headquarters were surrounded by protesters who supported the charter. The court's judges said they were unable to enter the building and went on strike. Morsi eventually rescinded the decrees but the charter was rushed to approval.

Prominent lawyer and rights activist Negad Borai said the court has the authority to look into the constitutionality of laws, but will not rule against a constitution approved in a referendum. He said despite their outcries, judges have so far taken little direct action to stop infringement on the judiciary's independence.

"Why didn't the court protest earlier violations to its independence before it became a constitution," he said. "Yes, there is misuse of power. Yes, the constitution is illegitimate morally because of the misuse of power, but I don't see how the court can rule on its legitimacy."

The opposition has said it will continue to challenge the document and will demand amendments to disputed articles once it joins the parliament. Elections are expected to be called within two months; but any modification of the charter would require a two-thirds majority of lawmakers to request a change, to then be put to a referendum.

The top court has repeatedly been at loggerheads with the Muslim Brotherhood as it has gained power after the ouster of Hosni Mubarak. During military rule, the court, which is packed with Mubarak appointees, ordered the dissolving of the Islamist-dominated parliament.

In a separate case, a Cairo court on Tuesday acquitted a fiercely anti-Brotherhood TV presenter who was on trial over accusations of insulting Morsi and suggesting it was permissible to kill him.

In relation to the incitement charges, the court said Tawfiq Okasha was using "general language" not directed at the president. As for the insulting charges, the court said, according to the new constitution, freedom to criticize is guaranteed as long as there is not libel and that Okasha was not insulting.

Okasha's TV station has been off air since the case was filed against him in August.