The Arabist

The Arabist

By Issandr El Amrani and friends.

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?