No timeout in Egypt’s judicial battles

Egyptians who feel buffeted by one startling judicial ruling after another seem at first glance to have been given a respite last week. Cairo’s administrative courts seemed to back off, postpone, and duck the enormous issues before them — challenges to the current Constituent Assembly, the dispersal of Parliament, and the audacious June 2012 supplement to the country’s Constitutional Declaration were postponed or ruled beyond the reach of the courts. But there was far less modesty than meets the eye here. A little noticed but far reaching implication of last weeks’ rulings is that the SCAF’s June rewriting of the transition plan is here to stay. 

The court examining the challenge to the supplementary Constitutional Declaration ruled that Egypt’s constitutional order is whatever the SCAF said it was between Hosni Mubarak’s resignation and Muhammad Morsy’s inauguration — and also made it very difficult to change that order in any further move, at least until a permanent constitution is written. And, it bears repeating, that document itself will be written exactly as the SCAF ordered.

Before explaining how the court reached such a conclusion — virtually under the noses of all political actors — it can be useful to explore briefly why it did so. The flurry of rulings in recent months that have supported the SCAF and undermined democracy have led to fairly widespread speculation that the judiciary is in the SCAF’s pocket. There is, to be sure, much fodder for suspicious minds. The old regime — dating back even before Mubarak — found ways of inserting key supporters into important positions in the judicial hierarchy or co-opting critical personnel by doling out benefits. And there are quite principled judges who have made no secret that they regard the military as a bulwark against Islamists.

But such individuals aside, my own sense is that something more subtle is afoot in Egypt’s judicial order. Egypt’s legal elite, is, unsurprisingly, elitist. Judges are often perfectly liberal and democratic in their sentiments until judicial matters arise — and at that point their attitude toward democratic mechanisms is akin to that one might expect of brain surgeons were one to suggest that their recommendations be subject to popular vote. Added to the general insistence that the law is prior to — and apart from — any political process, however democratic, is a specific fear of the current majoritarianism of Egypt’s Islamists and the indications that they were considering ways of using the legislative process to amend Egypt’s judicial laws in ways judges might not like.

And, it must be stressed, the judicial decisions were based fairly clearly on clear lines of reasoning the judiciary followed in the past. The Supreme Constitutional Court’s ruling against the parliamentary election law did not simply follow the reasoning of decisions dating back to the 1980s, it also showed almost great comfort in older constitutional documents than in Egypt’s currently governing constitutional declaration. And it also revived a tendency first in evidence in the 1980's of anchoring its rulings in what it finds to be international principles of constitutional law and interpretation.

The Cairo Administrative Court’s ruling last week that it did not have jurisdiction over the Constitutional Declaration — far more sweeping in its implications than most press coverage noticed — similarly was based on longstanding judicial traditions in Egypt. The court held that in the interregnum between Egypt’s deposed president and its current one, the SCAF had full constitutional authority based on revolutionary legitimacy. It was reviving a doctrine introduced in Egypt after 1952 in order to justify the regime’s decision to sweep away Egypt’s 1923 constitution and to replace it with a “constitutional declaration.” The administrative courts at the time — under the leadership of Egypt’s greatest jurist of the 20th century, Abdel Razzaq al-Sanhuri — endorsed that step. 

And, last week’s court ruling held, no court could review such an action since it was an “act of sovereignty” rather than an administrative act. The doctrine of “acts of sovereignty,” borrowed from nineteenth-century Europe, has been viewed with great distaste by many jurists in the Arab world since it has been used to place many authoritarian measures completely beyond any kind of judicial or even recognizably legal framework.

Thus, Egypt’s March 2011 Constitutional Declaration — issued by military fiat — is here until a new constitution replaces it. Further, the SCAF’s subsequent modifications to that document, including the wide-ranging June 2012 amendments that took away large (if vaguely specified) chunks of the president’s authority, inserted the SCAF into the constitutional process, and created the military as a state with the Egyptian state, is similarly beyond legal challenge.

The implications of the court’s ruling go slightly further. The SCAF’s “revolutionary legitimacy” — and thus its authority to make Egypt’s constitution say whatever it wants — ended with Morsy’s inauguration. But rather than weakening the SCAF, that means that there is no clear way to make any changes in the military’s constitutional edicts.  The constitutional declaration makes no provision for its own amendment, only for its replacement.  President Morsy’s aides have floated the idea of issuing their own supplementary constitutional declaration, but there is no indication that the courts would endow Egypt’s newly elected leader with any similar revolutionary legitimacy.

Of course, there is a route to writing a permanent constitution that will replace all the SCAF’s doings. But the body charged with drafting that document itself hangs by a slender legal reed. It could be disbanded by a court at any moment. Should that happen, the June 2012 document is clear: the SCAF appoints a new drafting body. The political obstacles to a document issued in such a manner obtaining legitimacy are formidable. But last week’s court ruling suggests that the legal obstacles have been removed.

Nathan J. Brown is a Professor of Political Science and International Affairs at George Washington University.

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