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.

Let’s review the history: in March 2011, the SCAF issued a constitutional declaration which provided for parliamentary elections. The elected members of both chambers of parliament were supposed to elect a Constituent Assembly. This they did.  But the administrative courts dissolved the Assembly because they claimed it was not representative and because parliament had named some of its own members to the body. The administrative courts claimed jurisdiction by saying that the parliament was acting in an administrative capacity when it elected the Constituent Assembly.  To comply with the ruling, the parliament elected a second Constituent Assembly. But they still named a few of their own members to the body. Worried that the administrative courts would dissolve the second Constituent Assembly, the parliament then passed a law justifying what it had done. The purpose of the law was to keep the matter out of the administrative courts because now it would be a legal rather than an administrative matter.  It would perhaps be up to the SCC to rule on the constitutionality of the law.

That draft law got sent to the SCAF which sat on it. Then the parliament was dissolved. After taking office, however, Morsi approved the law.  

Now let’s get back to the case. When the administrative courts heard challenges to the second Constituent Assembly, they sent the matter over to the Constitutional Court. The question before the Court centers on the law passed by the parliament to justify what it had done.  What the Court is trying to decide in this ruling is:

1. Is this an administrative matter?
2. Is this a legal matter?
3. Or does this involve “political acts”? The idea of "political acts" is the SCC's preferred term for what had been called "acts of sovereignty."  These are acts that are not ones subject to judicial oversight. While accepting that there are such acts, the SCC insists that it alone has the authority to decide what is a political action.

The SCC reasons that the constitutional declaration meant to make the entire procedure of electing the Constituent Assembly as something special. It’s not a normal administrative act. Nor should the parliament be passing laws, restricting or defining the process because the body that elected the Constituent Assembly (that body was not the parliament acting normally but a special assembly of all elected members of the two chambers) was not really subject to parliamentary laws.  So the law is unconstitutional.  But that does not question the legitimacy of the Constituent Assembly, it affirms it.  

The SCC does not seem to be saying that the election of the Constituent Assembly is an act of sovereignty specifically, but they seem to be drawing on that mode of thinking.

If this is the case, then it means that no court should be reviewing what the parliamentary deputies did when they elected the second constituent assembly.  That’s remarkable, because rather than throwing the second Constituent Assembly under a cloud, it implies that the first one never should have been dissolved!  This comes pretty close to vindicating the Brotherhood’s original position.

But not on all issues.  The SCC does explicitly define the “revolutionary period” as one that ended with the elections of the upper and lower houses of parliament and the president. That all but says that Morsi had no authority to issue constitutional declarations—ever.  And the implications of that would be potentially far reaching if the SCC at the same time were not making crystal clear at the same time that the 2012 constitution is an accomplished fact.