Limiting the right to challenge governmental contracts opens new doors for corruption


After about eight years in the corridors of the Egyptian courts, the Constitutional Court upheld the law regulating governmental contracts that limits the right to challenge the validity of government contracts to the parties of the agreement themselves, preventing citizens from appealing against government contracts that go against the public interests. The law was issued in 2014, by former President Adly Mansour, during his term as interim president after the Muslim Brotherhood was overthrown from power in 2013, as there was no elected authority at the time, whether Mansour himself or even a parliament that approved such a law, which made the law is expected to fall.

Indeed, the first parliament under the current system, convened in 2015, did not pass the decision with the constitutional majority required for its approval. The law remained pending, awaiting a bullet of mercy from the judiciary. Indeed, the report of the Constitutional Court Commissioners Commission recommended the ruling on unconstitutionality since the law relied strongly on this matter. “It did not win the approval of the majority of two-thirds of the deputies, estimated at 397 votes, and won only 374 votes in violation of Article 121 of the Constitution, despite its connection to the organization of the right to litigation, the organization of the mandate of the judiciary, and its connection to the courts’ authority over cases before them,” read the report. But the Constitutional Court, headed by Mansour, who issued the law, neglected all of that, including the recommendation of the Board of Commissioners, and surprised everyone by ruling the constitutionality of the law!

Legislation for systematic corruption

In the past and after the revolution of January 25, it became possible for any citizen to file any appeal against any privatization contract that the state made with any businessman or private sector companies. Since the workers were the direct stakeholders in the issue of privatizing the companies and factories in which they work, Therefore, they were filing lawsuits to invalidate this privatization, including, for example, rulings in favour of citizens in the case of the Madinaty land allocation contract, and the invalidity of the privatization of several public sectors companies such as Shebin Spinning and Steam Boilers.

However, the law that limited the opportunity to challenge those contracts granted the beneficiaries of privatization the advantage of having the right to conclude agreements or to challenge them and only, without citizens having the right to challenge those contracts, and the request was limited to both parties to the contract, although the court statement said that this law would not be implemented retroactively in cancelling previous rulings. Still, it has retroactively terminated cases that have yet to be decided.

The court’s statement, by its deputy president, Mahmoud Ghoneim, also stated that the court based its ruling on “the delicate stage that the national economy is going through, in which work needs to be done to attract foreign investments, and to block everything that undermines confidence in the soundness of economic construction and to ensure that the state respects its contracts as long as possible, achieved the state of justified necessity for issuing the decision in the contested law.” About a week ago, the International Monetary Fund announced its conditions, which it had agreed upon with the government, to grant it a new loan. Among those conditions are two conditions related to assets owned by the Egyptian state. The first is that the Egyptian government sells assets worth $8.4 billion to the GCC countries, in addition to listing State-owned companies on the stock exchange, which is actually what the state is carrying out by selling profitable assets to Gulf countries, had many questions about their actual price, especially since the contracts were less than their real financial value, including the Fawry Company, the Abu Qir Company for Fertilizers and Chemical Industries, and shares in the Commercial Bank. The government also announced compliance with the terms of the International Monetary Fund and its endeavour to enhance the participation of the private sector in economic activity by offering government companies on the stock exchange. Consequently, after eight years of litigation, the time for the law is now.

Protecting government, not investors

The government usually prefers to avoid hearing voices opposing it. Indeed, the president asked the citizens to stop the “nonsense” twice on severe national issues. Still, with the government’s inability to eliminate any “nonsense”, it must prevent any movement resulting from this “nonsense”, but how? No independent body can monitor the government’s decisions and policies, starting from the almost wholly secured parliament to the oversight bodies that have lost all possible independence and report directly to the president and his appointments, such as the Central Auditing Agency or even the Administrative Control Authority. Instead, the Constitutional Court, which issued a “judicial” ruling, no longer enjoys any significant independence since the head of the military judiciary head, Major General Salah al-Ruwaini, was appointed as its deputy president. Therefore, only the citizen and its only outlet after the closure of the public space is left to file a case.

There is a possibility that the government enhances transparency and governance by the conditions of the International Monetary Fund, which includes the declaration of accounts and financial statements. The availability of open information and this potential trend is a significant player in the issuance of the Constitutional Court ruling now, as the Monetary Fund pushes the government for more transparency that will reach citizens, it will be possible to disrupt the government’s course by using workers’ rights based on their previous successful experiences to challenge those contracts. The Vice-President of the Constitutional Court concluded their statement on the ruling, saying: “This integrated organization guaranteed the rights to their owners, defending the field of litigation for those who have no personal interest in challenging those contracts, dismissing the judicial litigation from those who imagined damage they wanted to rebel, or those who pleaded with them to impose economic policies which do not agree with the orientations of the current constitution,” which came as an explanation for all that preceded it!