Hisba: Is Egypt a civil or religious state?
part 7


7. The relation between hisba and the principal of 'interest' in administrative law

One of the prevailing rules in law is that there must be interest in order for there to be a case, as stipulated in Article 3, Civil Procedures Code, and Article 1/12 of the State Council Law. However, this does not eliminate different interpretations of what constitutes 'interest.' According to the Criminal Procedures Code, 'interest' in filing a case is justified when a right has been violated or threatened to be violated. This rule also applies to compensation cases before the Administrative Court, where the person filing the lawsuit must have a right that has been affected by a wrong decision taken by the administration, which requires rectification and a compensation. In both cases interests and personal rights are linked. Nevertheless, in appeal cases before the Administrative Court, there is a complete separation between interest and right. Interest is related to legal position. A right does not have to have been violated by the public authorities. It is sufficient that whoever files the case has a personal direct interest in appealing the decision. Personal interest here means a particular legal position or status in relation to the decision in question, whereby the decision would directly affect a subjective interest of the appellant.

The administrative judiciary has expanded the scope of interest in appeal cases. In some cases, citizenship has been sufficient to file a legal case and qualify for having a direct personal interest to appeal the decision in question. On 4/1/1980, the Administrative Court ruled in case no. 6927/1932, that, "It is proposed that citizenship is sufficient in some cases to file an appeal against administrative decisions that affect all citizens resident in a state territory and endanger their interests, health, or future on a massive scale." This case was related to dumping nuclear waste in the Egyptian desert.[endnote 1]

The legal interpretation of personal interest does not qualify appeal cases as hisba cases, as an appeal case still requires a direct personal interest. The religion of the appellant is irrespective in deciding whether or not to accept a case, as long as religion is irrelevant to legal position. This is valued differently in hisba cases.

Whoever files a hisba case must be a Muslim, unless those who support hisba in Egyptian legislation conceive a new version of hisba which has no religious dimension, in conformity with the reality of our contemporary society.

All those who advocate hisba, and interpret certain cases before the Administrative Court as being hisba cases, ignore the difference between 'interest' in administrative law and hisba.[endnote 2]

The following examination of Administrative Court rulings shall illustrate this.

Case study

On 3/12/1987 Abd al-Halim Ramadan filed case no.959/32 j., requesting that a presidential decree be revoked. The decree granted a justice (vice-chair of the State Council) a first class order of merit. Ramadan objected to the decree on the grounds that the justice was a judge in cases filed against the president. He justified his interest as being a lawyer, citizen, and opponent in such cases.

The State Judicial Authority submitted a plea that "the case should not be accepted, as there is no interest or capacity since administrative judicial rulings stipulate that the appellant has a direct personal interest to proceed with the case. This requires a particular legal position in relation to the decision in question that entails a direct effect. Clause a, Article 12 of the State Council Law, stipulates that the following cases do not qualify for trial:

- Cases filed by persons with no personal interest, for not having an interest or capacity, since the decision in question does not affect a personal right or legal position."[endnote 3]

In the hearing which took place on January 6, 1981, the Court rejected the lawsuit, basing its ruling on the grounds that the appellant's interest in challenging the decision was not valid, as it did not directly affect a personal interest. The Court accepted that it was valid to say that the judicial authority and the State Council Judicial Authority are branches of public law regulating the jurisdiction of courts, the judiciary and judges. The court added, however, that this does not give any citizen the right to challenge decisions which contradict its laws, and result in nullifying administrative decisions since this is originally derived from public law legislation. However, challenging administrative decisions is only acceptable when they harm a direct interest of the person requesting nullification. The challenge is not accepted just because the appellant is a citizen interested in enforcing laws related to public order or defending public interest, otherwise the lawsuit to nullify the decision would be considered a hisba case.[endnote 4]

On April 4, 1981, the appellant challenged the said ruling with challenge no. 691/27 j., basing such on the first degree court ruling to reject the challenge due to the lack of capacity based on two grounds:

The first is based on hisba. The petitioner said that "hisba in the Sharia, which the Egyptian Constitution considers the main source of legislation, was created to protect public and moral codes, i.e., to protect public order and morality in modern legal language. Jurisprudence and the judiciary acknowledge a judge's commitment to rule automatically on breaches of public order and morality." The petitioner added that rulings of the State Council Judicial Authority and the judiciary are branches of public order. Consequently, if Article 22 of the State Council Law no. 47 of 1972-also Article 68 of the Judiciary Law-prohibit granting a State Council member exceptional privileges, thus the said law related to public order prohibits contradictory ruling. Thus, the petitioner acquires capacity and interest to challenge the ruling.[endnote 5]

The second is based on the presence of the petitioner's direct personal interest as the source of capacity. He argued that he was "a lawyer dealing with disputes between individuals and authorities of the State Council, headed by Justice .... , and many lawsuits are against the President of the Republic, the awarder of the decoration." Thus, the petitioner's interest in the fairness, objectivity and neutrality of his judge is valid.[endnote 6]

In the hearing of November 26, 1983, the Supreme Administrative Court ruled to "accept the challenge in both form and content thus revoking the challenged ruling, and accept the lawsuit in form but reject its content, in addition to obliging the petitioner to pay all costs."[endnote 7]

The Court refused to base its ruling to accept the lawsuit on the existence of the capacity for hisba, but on the presence of direct personal interest of the appellant, i.e., the Court rejected the first grounds on which the petitioner based his challenge. The Court stated that:

"Based on Article 12 of the Law on the State Council promulgated by Law no. 47 of 1972 which states that "the following requests are not accepted:

1. Challenges brought by persons who have no personal interest in the matter ..."

The Supreme Administrative Court confirmed that the interest should be personal and direct. However, in the field of appeals where such is related to the principles of legality and public order, administrative law, backed by jurisprudence, does not limit the condition of personal interest to the presence of a right violated by the challenged administrative decision, as is the case with indemnity and other lawsuits related to right. The administrative judiciary bypasses the said limits only in accordance with and in achieving the principles of legality and establishing public law. Thus, the personal interest condition encompasses all appeals where the appellant holds a special legal status with relation to the challenged decision in a way that the said decision seriously affects the appellant's interests. It is worth noting that widening the scope of the personal interest condition, as mentioned above, does not mean that this is a hisba case, since acceptance of the challenge is still based on the condition of personal interest of the appellant.

Applying the above to the case in question against the President of the Republic, in his capacity as President, it is clear that the appellant bases his interest in filing his suit on the fact that as a lawyer he deals with many cases before the Administrative Court. The cases are settled by the Department of Individual vs. the State, which was headed by the justice at the time when he was awarded the decoration. Thus, the appellant has an interest in challenging the decision to award the decoration to guarantee the integrity, neutrality, and fairness of the judge.

According to the above, the appellant has personal interest in filing such a challenge, with the aim of preventing what would influence the judge's neutrality, objectivity or independence, and to safeguard justice, "as God has commanded and as all regulations and legislation should aim to maintain."[endnote 8]


Endnotes

1. Ibid. p.28 (footnote).

2. See al-Nagar. p.196 onwards; al-Libidi p.57 onwards; Selim al-Aawa Al-Shaab newspaper; Fahmi Huwaydi, Al-Ahram newspaper.

3. Court of Cassation ruling no. 691/27j., issued by the High Administrative Court in session November 26, 1983, published in Magmuaat al-Mabada al-Qanun, 29j., first edition State Council Office, Egyptian General Book Organization, Cairo, 1988, pp.125-133.

4. Ibid. pp. 128129.

5. Ibid. p. 129.

6. Ibid. p. 129.

7. Ibid. p.133.

8. Ibid. pp. 129130.


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