One of the most remarkable new phenomena to appear on Egypt’s political scene since the revolution has been a radical decentralization of decision making. This is an entirely new characteristic of the Egyptian political scene, brought about by a revolution that liberated politics from the strictures of authoritarianism. Over the course of this decentralizing process, we are seeing Egypt’s administrative judiciary emerge as one of the most dynamic new players, to such an extent that this supposedly neutral court system can now be considered one of Egypt’s “ruling powers.”
Before proceeding with an analysis of the administrative judiciary’s evolving and increasingly political role in the post-revolutionary period, it is important to clarify the structure of the Egyptian judiciary, which is not a single institution but comprises three separate branches: the general judiciary, which considers all kinds of cases; the administrative judiciary, or the State Council, which handles disputes involving state administrative bodies; and the Supreme Constitutional Court, which holds “absolute jurisdiction” on constitutional disputes and issues.
The emergence of the State Council as a powerful political actor in the post-revolutionary period is illustrated by a series of significant court rulings over the past year and a half. Immediately after the revolution in February 2011, the State Council took its first step into the post-Mubarak political arena by ordering the dissolution of the former ruling National Democratic Party. Also, the Administrative Court ruled to dissolve all of Egypt’s local councils, which were staffed almost entirely by NDP members. Later, a ruling to allow the Egyptians living abroad to vote in all elections and public referenda was issued. Early in April, the State Council decided on the critical issue of the Constituent Assembly —which was formed by the Parliament in March and tasked with writing the new constitution — by dissolving it and, moreover, ordered that the assembly be formed by members from outside the Parliament.
I fully endorse the outcome of these judicial decisions, as they reflect number of the demands of the revolution; however, I question the mechanism by which these desirable results have been achieved. Specifically, I take issue with the State Council’s involvement in purely political issues, which has set the stage for the politicization of the administrative judiciary, a trend that could undermine Egypt’s democratic transition. The politicization of the State Council can be traced to the political vacuum that arose after Mubarak’s removal. Although the Supreme Council of the Armed Forces was delegated executive authority during the interim period, the military council — with its political ineptitude and haphazard decision making — was incapable of filling this void. The SCAF has been slow to make decisions to advance the revolution’s objectives, and in many cases has failed to act at all. Thus, the political vacuum remained wide open, enabling the State Council to take on an increasingly assertive and political role amid the SCAF’s disorganized decision making.
The State Council’s involvement in political decisions may have yielded short-term gains for the revolution, but over the long run, the politicization of the judiciary will have damaging consequences for Egypt’s democratic transition. On the one hand, no judiciary should step in to fill the political vacuum resulting from ineffective executive leadership. This situation should instead be addressed by pressuring the ruling authority to fulfill its duties and meet the aspirations of the masses. The more volatile the political situation, the more essential it is that the judiciary maintain neutrality and serve as a stabilizing force.
Some argue that the revolution has its own law, “revolutionary legitimacy,” and that the interim state authorities backed by this mandate are empowered to take extraordinary measures. But this formula applies only to the executive political authority — which is being held accountable by the public for achieving the revolution’s goals — and should not be used as a basis to justify the judiciary’s involvement in political matters that are totally beyond its jurisdiction. Otherwise, Egypt would be at risk for rule by “a government of judges,” with all of its undemocratic consequences.
Another problem stemming from the politicization of the State Council has been its tendency to make legal errors.
Take, for example, the ruling to dissolve the Constituent Assembly. The main argument used by the Administrative Court was that Parliament misinterpreted Article 60 of the Constitutional Declaration by electing 50 out of the 100 assembly members from Parliament. The court found that Article 60 required the selection of all 100 members from outside Parliament, barring parliamentarians from electing themselves to the Constituent Assembly. Upon closer inspection, the administrative court ruling is flawed in two ways. First, it violates the exclusive jurisdiction of Parliament to apply and interpret Article 60 of the interim constitution, which authorizes Parliament to elect the Assembly without determining, precisely, either the procedures to be followed or the election mechanism to be applied.
Although Parliament has exclusive authority to apply and interpret Article 60 of the interim constitution, this does not amount to absolute power of interpretation. Therefore, if it appears that Parliament has misused its powers, the government — the SCAF or the Justice Ministry, in this case — can ask the Supreme Constitutional Court to interpret the constitutional article in question. This leads us to the second defect of the State Council decision, which is its violation of the jurisdiction of the Supreme Constitutional Court. It is the Supreme Constitutional Court, not the State Council, that is responsible for issuing “interpretative decisions” to clarify areas of constitutional ambiguity. This point brings us back to the first concern raised in this article: the government’s dysfunctional decision-making process, illustrated in this case by its failure to take the necessary step of asking the Supreme Constitutional Court to rule on the correct interpretation of Article 60, which could have averted the crisis over the Constituent Assembly — one of the worst in the history of Egyptian politics.
Some may see widespread support for the State Council decision on the Constituent Assembly from across the political spectrum, including from Islamists, as evidence of the decision’s legitimacy. However, the fact that political forces have accepted the decision does not validate the State Council’s action; it just proves that the formation of the Constituent Assembly was facing severe difficulties and that all political groups were eager to accept the Administrative Court ruling as a way out of the crisis. The decision may have played a positive role in helping to diffuse a crisis, but the State Council has nonetheless overstepped its judicial authority by taking political actions.
Yussef Auf is an Egyptian judge and 2012 Humphrey Fellow at American University’s Washington College of Law. He is currently pursuing a PhD in Constitutional Law and Political Systems at Cairo University.
This article was originally published on EgyptSource.