More on the Rubik's Cube

In response to a remark on Twitter by Amira Howeidy, Nathan Brown is updating his take on the SCC's rulings we recently published. Here is a (lengthy) addendum.

A closer reading of the second (Constituent Assembly) ruling suggests I got one thing absolutely right and one thing absolutely wrong.  But this is a very complicated ruling, because the SCC is sorting through all sorts of issues (standing, jurisdiction, governing constitutional text, etc).  So I would love to hear others weigh in!

What I said before was that the SCC struck down the law by which the Constituent Assembly was elected that this had little effect on the constitution. That is what I got right.

What I now think I got wrong was that I said this tossed the matter back to the administrative courts but did so too late to make any difference.  But a closer reading suggests the ruling does not toss the matter back to the administrative courts; it seems to argue they shouldn’t have been involved in the first place. And if I read the ruling right (and I may not!) the implication is that the first Constituent Assembly should never have been dissolved—which is again, the opposite of how I read the verdict first.

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Solving the Rubik's Cube of Egypt's court verdicts

Solving the Rubik's Cube of Egypt's court verdicts

​Nathan Brown has read the recent, controversial verdicts of Egypt's Supreme Constitutional Court (official text here) and has kindly sent this initial take — helping us common mortals make sense of the world's most constitutionally complicated political transition. My own basic take is this: legal victory for the Brotherhood and its allies, but much to use for the opposition for its campaign of delegitimization.  

On 2 June, the Supreme Constitutional Court (SCC) issued three rulings—one on the constitutionality of the Maglis al-Shura election law; one on the Constituent Assembly law; and one on a provision of the Emergency Law. It struck down all three, but the implications confused many observers. That is not urprising--the legal questions are so complicated (with constitutions, constitutional declarations flying through the air, cancelling, contradicting, and clarifying each other) that the Court had to spend a lot of time figuring out what the relevant constitutional text was and how to apply its rulings.  The judgment on the Constituent Assembly in particular reads a bit like a Rubik’s Cube. 

What follows are some brief notes based on an initial reading of the verdicts. This is a very quick set of reactions based on a first reading of the decisions.  I hope readers will forgive any resulting errors of emphasis or interpretation.

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Should the Egyptian army and police get to vote?

That is the question that has riled Egypt over the past week, as the Supreme Constitutional Court (SCC), in its latest bout of judicial jujitsu, has decreed that – in accordance with the new constitution – since the electoral franchise is supposed to be universal, the previous ban on uniformed services from voting should be lifted. This has triggered howls of outrage by Islamists, who see the judiciary giving the police and army the right to vote as tantamount to vote-rigging, and has been welcomed (to various degrees, and not by all means unanimously) by their opponents.

​The recommendation came as part of the SCC's review of a new elections law and a law on parliament – a review that itself is mandated by the new constitution. The SCC's ruling appears correct: since the new constitution guarantees equal rights for all citizens, and makes no mention of an exemption from voting for employees for conscripts, officers, and/or policemen, it stands to reason that they should not be denied the right to vote. Of course, there were no provisions preventing the military and police from voting under the previous constitution, so the SCC appears to have, in this case, made a recommendation that went against longstanding practice – or perhaps more simply it had never had the occasion to rule on this issue before, since it did not get to review legislation under the previous constitution.

​A first take to this decision is that it shows, yet again, how foolish the Muslim Brotherhood and other Islamists were to rush ahead with a constitution that has already come back to bite them in many respects. And their reaction is proving yet more foolish, notably in the shape of calls for the SCC to be abolished altogether because it is seen (despite having been purged by the new constitution of many of its most anti-Islamist components) that are escalating the crisis between the government and the judiciary (judges are now threatening a national strike in response to a draft judicial reform law).

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The MB on why a judicial purge is needed

Nour writes in with this link to IkhwanOnline, where this article "The Judges or the Revolution makes the following arguments:

1) Judges are allowed to join state institutions, so can a judge be fair in a case that involves a company or a ministry where he works as an adviser?
2) Raising the retirement age for them was to make sure that Mubarak's men kept their posts for as long as possible.
3) Nepotism: about 60 percent of judges belong to the 75 families (that's not so bad, keeping in mind that nepotism is literally everywhere).
4) Dissolving the parliament, rejecting the constitutional declaration, refusing to appoint a new prosecutor-general, letting ex-regime figures walk, etc.
5) Unfair perks, from gifts (which ex prosecutor-general admitted to receiving but the Supreme Judges Council didn't even question him about it) to LE3000 each for medical expenses, despite the fact that the judges and their families' healthcare is covered by the state. Article claims that their medical expenses alone cost the state LE50 million a month.

Meanwhile, the vice-president of the State Council tells the press that the MB is provoking the judges' anger in order to get them to boycott supervision of the parliamentary elections.

Don't count too much on fraud investigations in Egypt's referendum

Egypt opposition demonstrates over constitution; Justice Ministry probes vote irregularities - The Washington Post

On Tuesday, Egypt’s Justice Ministry says it will assign judges to probe allegations of voting violations.

“This is the first time in the history of Egypt that judges are assigned to investigate vote violations,” a ministry spokesman said at a news conference.

Judge Mahmoud Abu Shousha, a member of the commission overseeing the referendum, rejected the charges of voting irregularities.

He said it was impossible to replace judges with court officials during the supervision, and that all stations stayed opened for four extra hours to accommodate the long lines, dismissing claims that some closed early. He said more staff will be recruited for the second round to speed up the process.

“We don’t know what to do with those who spread these lies,” he said at a news conference.

So without the investigation having even started these MB-friendly judges who sit on the commission are drawing conclusions? I'm guessing this investigation will be over pretty quickly. More on the violations here.

The Brotherhood's spokesman, Mahmoud Ghozlan, is setting the tone about these fraud violations:

Brotherhood spokesman Mahmoud Ghozlan dismissed the rights groups' allegations as politically motivated to sway public opinion.

"These organizations are funded by Western countries. Just like the Westerners hate the Islamists, so do these groups. They are seculars and they hate the Islamists and have foreign agendas," Ghozlan said.

The Muslim Brotherhood is partying like it's 2005.

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Paranoid about the courts

The revolution in crisis | Egypt Independent

Nathan Brown - who is being called "The Nate Silver of Egyptian politics" on Twitter write about the fight between the judiciary and the presidency:

The president was explicit in why he felt the need for the November declaration: He feared the SCC was about to turn back the revolution by disbanding the Constituent Assembly, the Shura Council, and perhaps even the president’s August constitutional declaration that had removed the military’s stranglehold over the country’s political system.

Is the SCC a body filled with SCAF sycophants and handpicked Hosni Mubarak stooges? 

No. 

All members of the court were indeed formally presidential appointments. But most were nominated by the justices themselves; their appointment by Mubarak was a formality.

The former chief justice, Farouk Sultan, was indeed a direct Mubarak pick, but he had only one vote and retired over the summer. He was replaced by a president picked by the court’s own justices. 

I don’t wish to make it sound as if the old regime’s habits left the court completely unaffected. There were subtle ways that the bold court of Chief Justice Awad al-Morr’s days, in the 1990s, was gradually tamed by the regime.

Bottom line: the Supreme Constitutional Court is a mixed bag. Brothers like to point to statements made by Tahani al-Gebali, who famously told the New York Times last summer that she's ready to do anything to back the army and thwart the Brotherhood. Senior officials I've talked to say they have evidence that the court had already decided to rule against the Constituent Assembly, the Shura Council and the August 12 decree with the aim of bringing back the army. Might be true regarding the first two — but we can't know for sure. As for the third, it seems unlikely: after all, the army itself chose to leave the front row of politics. Why come back now?

The SCC is making a statement later today. We'll see how they react to these allegations.

Is there even agreement on where Egypt's crisis is headed?

Some outlets report Morsi has sealed a deal with judges, others say he hasn't. Take a look at some of the headlines you'll find on the front page of a Google News search for "Egypt":

Bottom line: the Supreme Judicial Council has given an opening to Morsi, but there is still no deal that they accept or even one that Morsi has clearly outlined. The protests are taking place, the opposition still demands that the decree is fully rescinded, Morsi will not do that, so the situation is mostly unchanged unless some senior judicial figures start outlining the terms of a compromise of the opposition starts talking to the presidency about what a compromise could be. Indeed, judges alone cannot end this crisis, the opposition has to be willing to negotiate, too — and most importantly, Morsi needs to make whatever he has in mind clear. Right now, no one can figure out where things stand.

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

Decoder: Morsi, the judiciary and acts of sovereignty

We are happy to have another piece of legal analysis from Nathan Brown, on the legal issues at stake in the fight between the Egyptian judiciary and President Morsi.

Egyptian politics, for all its bare-knuckled power struggles, has also been strangely, almost bizarrely, legal. In fact, it has become increasingly so: President Morsi managed to handle the army but the judiciary is proving far more troublesome. In a country where those with gavels are more powerful than those with guns, it is not a surprise that contestants speak in legal language. And that language is growing more abstruse. What remains of the Constituent Assembly has drafted a new article on the Islamic shari`a that few people have the training to understand.

And now, in the midst of what looks like mortal combat between the presidency and Islamists on the one side and a set of judicial actors and non-Islamist forces on the other—a confrontation set off (predictably enough) by a series of presidential edicts published in the Official Gazette—we may be seeing the shape of a compromise emerging. It is hard to tell what that compromise is, however, not only because the political struggle is so knotty, but also because the language used is unfamiliar and abstract.

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Egypt's judicial hot potato game

For weeks now, Egypt has waited for a verdict by the administrative court on the validity of the Constituent Assembly (CA) currently drafting a new constitution. Just a few minutes ago, it was announced that the administrative court has referred the matter to the Supreme Constitutional Court, the highest court in Egypt.

As a reminder, the current CA is the second to be formed, by negotiations that ended in mid-June. The parliament approved the law forming the CA the day before it was dissolved by the Supreme Constitutional Court, and although Mohammed Morsi ratified this law a few weeks after he took office, the legitimacy of the assembly is still contested by secularists — either because they feel it should not be formed based on a model from a dissolved parliament, or because they object to its composition. Dozens of lawsuits have been filed against the CA, largely as a secular tactic to have the courts shut down a constitution-writing process in which Islamists dominate.

The secularists' hope is that once the CA is dissolved, Morsi will use the power he gave himself on August 12 to appoint a new CA, which would be largely the same. And then the secularists plan to file more lawsuits arguing that Morsi does not have that right. Ultimately, they rely on the courts to take their sides.

Now that it's in the Supreme Constitutional Court's camp, they might take heart. That court's decisions have generally not been in favor of the Islamists. But at the same time, they see themselves as having a mission to avoid a vacuum. For this path ultimately points to either a political deal on the constitution, or, a complete breakdown in the transition process in Egypt, at least when it comes to the constitution.

As Elijah Zarwan tweeted:

 

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

The president, the prosecutor, and the press

Over the weekend in Egypt, as if the fighting that took place in Tahrir Square between supporters of the Muslim Brotherhood (or impostors) and their detractors was not enough, a major institutional type of Mortal Kombat also took place between, on the one side, President Mohammed Morsi and the Muslim Brotherhood, and on the other, Prosecutor-General Abdel Meguid Mahmoud and the judicial establishment. On the latter’s side — out of convenience as much as principle, as Mahmoud is not a popular figure — were secular political parties who seized on this to denounce what they saw as the Brother-President’s all-out attack on the rule of law.

If you haven’t been following this story, here’s the lowdown.

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Moustafa: Don't call the SCC's decision on parliament a dissolution

Tamir Mousfata weighs in with an interesting comment on the headline of this NYT story on the scuffle over the dissolution of parliament: "Egypt’s Military and President Escalate Their Power Struggle". He writes in a comment to the story:

The headline for this article is incorrect and terribly misleading. The Supreme Constitutional Court ruling on June 14 did not disband parliament, it only invalidated part of the election law. It was the military that disbanded parliament as an opportunistic move, but it is not the role of an unelected junta to dissolve parliament. The SCC reaffirmed its ruling as political theatre, as its ruling still stands. Morsi's presidential decree seeks to dissolve parliament in an orderly fashion, without the military calling the shots. The New York Times should make a correction, as the current headline and much of the text of the article simply presents the spin that SCAF would like to put forward.

Moustafa is Associate Professor at Simon Fraser University and the author of a book that speaks to the heart of the matter: The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt.

His comment, which is in line with my own analysis (as well as that I think the SCC's June 14 decision is ridiculous and the reaction of the Egyptian judicial establishment in general to Morsi's decree preposterous and dishonest — more on that later) and that of many other experts on Egyptian constitutional matters, is telling of how much the discussion of this struggle has been skewed. In a way, one can hardly blame the NYT's headline writers when the Egyptian media is largely framing this in the same manner, as are politicians and many senior judges. My instinct tells me that the latter, in particular, are full of crap when they complain of the decree being "an attack on rule of law" while Morsi's defense that he is not challenging the courts but the SCC's right to dissolve parliament not only entirely plausible, but laudable.

Unfortunately he did not think through the politics very well here, and may lose this battle. The last saving grace for him may be, ironically, upcoming decisions by the administrative courts — otherwise his best bet will be a quick move to hold new elections. 

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Issandr El Amrani

Issandr El Amrani is a Cairo-based writer and consultant. His reporting and commentary on the Middle East and North Africa has appeared in The Economist, London Review of Books, Financial Times, The National, The Guardian, Time and other publications. He also publishes one of the longest-running blog in the region, www.arabist.net.

In Translation: The SCC's verdicts

We've had the linguistic gnomes at Industry Arabic working overtime this weekend to translate the verdicts dissolving parliament and declaring the Political Exclusion Law unconstitutional issued by Egypt's Supreme Constitutional Court this weekend. They plowed through the legalese and given us this  —a full translation of the verdicts, available in PDF [334kb, original Arabic version here.]. They even highlighted in yellow some of more significant passages.

Below I am excerpting the reasoning of disbanding parliament because members of political parties were allowed to run for the individual candidacy (aka simple majority of first-past-the-post) seats:

There is no doubt that establishing this competition had a definite impact and reciprocal effect on the two-thirds allocated for closed party lists, since if political parties were not competing with independents over that other portion, then a rearrangement would have taken place within the party lists, taking into account the priorites within each party. Furthermore, political party members had the choice between two ways to run for the People's Assembly, the closed party-list system and the individual candidacy system. Independents were deprived of one of these ways, and their rights were limited to the portion allotted for the individual candidacy system, in which political party members also competed.

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Egypt's Legal News of the Day

A friend who prefers to remain anonymous writes in about the Egyptian judiciary, which has been getting some flak lately:

In a landmark ruling today, a Cairo appeals court struck down air.  “We can find no legal basis in any Egyptian legal text for air. This lack of legality extends to various human activities connected with air, including breathing, use of vacuum cleaners, and parliamentary debates,” the three-judge panel stated in a written ruling. (The judges were unable to deliver the opinion orally because they were all holding their breath).  

The court deferred to a September session consideration of challenges lodged against windows, emoticons, ful for any meal other than breakfast, and Jonathan Livingston Seagull.

In other Egyptian legal news, the country’s Supreme Constitutional Court issued what legal observers have already termed a “continuous loop” judgment. The Court found itself unconstitutional. However, it argued, since it had no constitutional authority, its own ruling was invalid.  And if the Court’s finding of its own unconstitutionality had no constitutional standing, the Court actually did have full constitutional authority after all. And it would use that constitutional authority to find itself unconstitutional.  But then, since it had no constitutional authority, its own ruling was invalid.

The decision continued for 4000 pages before a printer jam prevented completion of the ruling.

Meanwhile, the parliament escalated its conflict with the judiciary following yesterday’s State Council ruling that Britain’s severance of Egypt from the Ottoman Empire in 1914 was legally invalid because it had been issued in English, which is not an official language. The Court had ordered that all Egyptian state institutions be disbanded as a result. By an overwhelming vote, parliamentarians reacted by repealing the original Ottoman conquest of Egypt, thus hoping to remove the court’s jurisdiction over Britain’s 1914 decision.  

The SCAF has also reacted to the State Council decision, posting on its Facebook page a statement declaring that the first existing Egyptian legal document, the Narmur palate, clearly gives ultimate political authority to the military and that all subsequent constitutional documents draw their authority from, and thus cannot contradict, that text.  

A Freedom and Justice deputy promptly filed suit in an administrative court to strike down the Narmur Palate as belonging to the gahiliyya.

More news tomorrow.

More transition by lawfare in Egypt

This is an interesting development:

The Supreme Constitutional Court decided Saturday it will not review a request by the ruling military council to review a draft amendment to the political rights law that would isolate regime figures.

The People’s Assembly approved the draft amendment earlier this month, and the Supreme Council of the Armed Forces referred it to the court on Thursday.

The proposed amendment originally targeted presidential hopeful Omar Suleiman, who served as spy chief and vice president under ex-President Hosni Mubarak. But after the Presidential Elections Commission disqualified him from the race, it would now target Ahmed Shafiq, who served as Mubarak’s prime minister and is also running for president in the May election.

The court said Article 28 of the Constitutional Declaration, enacted in March 2011, states that the Supreme Constitutional Court should only review the amendment that organizes the presidential election, so extending its tasks to reviewing amendments without a clear text violates the article.

More clearly, the SCC says it cannot review the constitutionality of the law before it is passed, i.e. that it has no jurisdiction over bills. Most Egyptian experts think the law is probably unconstitutional (because it discriminates against specific individuals), but the SCC can't even give an opinion on it. It has thrown the ball back in SCAF's court to avoid further charges of a politicized judiciary, which are mounting after the judicial decision to allow the American defendants in the NGOs case leave the country and the attacks made on the Presidential Election Commission (composed of judges) to disqualify 10 candidates at last Friday's Tahrir Square protests (which featured banners against the members of the PEC).

The bottom line in all this is that the judiciary is turning to be an extremely powerful, and controversial, branch of the state in the new Egypt — one that has had a largely positive image but is starting to be seen, even if it is difficult to attack, as having made pro-SCAF decisions. As more "lawfare" is used during this transition by court filings for injunctions (such as against the formation constitutional assembly), the more judges will be on the front lines. Is that really where they want to be?

Nathan Brown on Egypt's judiciary and corporatism

For judicial wonks out there, a superb piece on the past, present and future condition of the judiciary in Egypt has just been published by Nathan Brown at Carnegie. It's long, but here's an excerpt I want to comment on that deals with the judiciary getting increasing leverage over the state, and specifically the Supreme Constitutional Court but then expands into a wider point about the revival of corporatism more generally:
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