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

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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.

The overall impact of the rulings is clear:

1. The 2012 constitution is the law of the land. Khalas. It was approved and there's nothing that the SCC can do about it. The SCC had been treating the document as authoritative in past rulings, so this was no surprise.  But the Court made  explicit what was already very clearly implicit in its rulings.

But the tone of these rulings was new.  In the earlier rulings, it simply applied the 2012 text without comment. This time it is not silent. Yes, the constitution is in effect. But the SCC seems—well, unhappy.  Its attitude sometimes comes off as institutional modesty (what are we judges supposed to do in the face of the will of the voters?), sometimes as resignation (the 2012 constitution is there; what can we do about it?), and sometimes as barely muffled outrage (this constitution is like something the cat dragged in: ugly and mangled, but something we have to deal with.)

2. The law by which the Maglis al-Shura law was elected is unconstitutional.  But because the current Maglis was specifically named by the 2012 constitution as having legislative authority in the absence of the Maglis al-Nuwwab (the lower house of parliament), it is protected—or at least gets a stay of execution until the first meeting of the Maglis al-Nuwwab after which its protection expires and the judgment against its constitutional legitimacy can be carried out.  

This ruling has frustrated people as contradictory. Perhaps I've been working on this too long. It makes sense to me.

The implications of this:

• One of the first things the Maglis al-Nuwwab will have to do is write a new Maglis al-Shura election law.  Egypt's transition goes on and on.  And that will have to be submitted to the SCC which may then find fault with it… and so on.  It’s quite likely Egyptians will be trudging back to the polls until late 2014 before all their constitutional structures are in place.
• The early speculation that the SCC was explicitly saying that the Maglis al-Shura could no longer legislate is just plain wrong.  
• In fact, just the opposite: there seems to be a clear if implicit endorsement of the claim that the Maglis al-Shura DOES have the authority to pass laws. (There is a separate argument about whether the Maglis al-Shura can set its own agenda or only discuss laws submitted to it by authorized bodies. The tenor but not the text of the ruling seems to point against restricting the Maglis al-Shura's legislative role).

3. The Constituent Assembly law was unconstitutional. But so what?  The legal effect will be to allow legal challenges to proceed against a body that doesn't exist anymore. 

That much is clear. But  now things get complicated, though with no real effect on the bottom line. The law struck down was written after the Constituent Assembly was elected. So striking down the law would not have dissolved the Assembly even if the Assembly were still there. It would have just tossed the matter back to the administrative court to consider the challenge to the Assembly. The reasoning of the ruling  is that the law unconstitutionally tried to immunize the Constituent Assembly from the Courts.  So again, all this ruling does is allow the administrative courts to consider the cases against the Assembly. Given point number 1 above, I don't think that will lead anywhere.  

But the SCC also took a swipe by seeming to endorse the reasoning by which the administrative court dissolved the first Constituent Assembly and may have dissolved the second had it been able. The legal objection was that the Assembly contained elected parliamentarians. Not only does the SCC accept this, the way the court states the objection suggests that the fact that Assembly no longer contained sitting parliamentarians after the parliament was dissolved (and the Maglis al-Shura members offered their resignation) would have made no difference. In other words, the Assembly would have been a goner had any court been able to rule in time. The SCC endorses the argument (a bit of a stretch, I think) that the constitutional declaration's silence on allowing MPs to be in the CA *required* that the CA exclude them.

4. The final ruling on the emergency law does not matter that much right now. The state of emergency is not in effect.  But this is an area the SCC did not dare to tread in the Mubarak years.  Some justices wanted to, I think, but they thought it would be the end of the SCC if they did so.  Now the emergency law is fair game for the SCC.  Let’s see where this moves—especially since some lingering effects of past states of emergency are still in effect (with some in prison and others being tried for alleged offenses during the emergency)

5. One other interesting sub-theme: the SCC has treated the various constitutional declarations with some discomfort. It has cited them in past decisions but often tried to avoid relying on them.  I read these decisions differently: there is explicit reference to the "revolution" – I could be wrong, but I don't remember the SCC using that term before. The implication is that the irregular constitutional changes from February 2011 forward have revolutionary legitimacy… or at least some of them. There is respectful reference to the March 2011 amendments and the SCAF-issued constitutional declarations. But there is a deliberate if ineffectual cloud placed squarely over Morsi's constitutional declarations—the SCC explicitly withholds judgment on whether those were legitimate or not.