The Arabist

The Arabist

By Issandr El Amrani and friends.

Posts tagged judiciary
Dissidence and Deference Among Egyptian Judges

For Egypt judiciary nerds (you know who you are), this article by Mona El Ghobashy for Middle East Report is just such a great read that weaves so many threads together, I have to link to it again. Money quote:

It is tempting to dismiss pro-government judges as lackeys of military rulers, automatons who move only at the behest of the de facto center of power. The reality is far more troubling. Many judges are active, self-willed architects of an expanded regime of legal exception and legal repression.

. . .

There have always been judges who see their role as applying, not checking, punitive laws. The zeal with which these judges and prosecutors are expanding the infrastructure of legal repression and resuscitating Mubarak’s paradigm of permanent emergency suggests that political dissidence is not their only target. A broader pacification of the population seems to be the goal, to punish the rampant disobedience and disrespect for authority that ruling elites remember as the revolution. Commenting on an avalanche of summary expulsions of students from universities, an administrative court judge said, “The reasons behind the expulsions [nowadays] weren’t there during Mubarak’s time. There wasn’t a revolution during Mubarak’s time.”

Justice in Egypt

The latest mass death sentence handed down in Egypt received a fair amount of press. (Enough to incense Egypt's Foreign Ministry, which has released its usual ridiculous statement sniffily calling for the respect of non-existent "international conventions" not to ever question the ruling of any judge anywhere). 

I wrote about mass sentences and the role of the Egyptian judiciary over a year ago. Since then the sentences have continued apace. The only reason this one has received particular attention, in fact, is  because the convicted included former president Mohamed Morsi. Those sentenced to death also include Freedom and Justice Party spokeswoman Sondos Asem and Professor Emad Shahin who having fled the country is currently teaching at Georgetown. The Atlantic Council's EgyptSource blog has an excellent round up of the cases, charges, and reactions here

As I've written before, I can think of few things more destructive to a social peace than the belief that there is no possible recourse to justice. All judicial systems are imperfect, but citizens must at least harbor the hope, the delusion even, that there are avenues for redress. 

The Egyptian judicial system -- which has long been held in esteem -- has been deeply damaged by its overt political partisanship since 2011; the corruption, lack of independence and nepotism that are seemingly endemic to the institution have been exposed. The Sisi regime has brushed aside any calls for reform and supported judges' own interpretation of "judicial independence" meaning not insulation from political pressures but rather a deal in which judges, in exchange for their loyalty to the state, face no accountability and no criticism. It has just appointed the megalomaniac Ahmed El Zind as its new Minister of Justice. 

But as we've seen, even this latest egregious sentencing is not denting the support of Egypt's Western allies for "engagement." The question is now whether these sentences will be carried out. But while the world was focused on the Morsi conviction, another six young men accused of carrying out terrorism attacks were hastily executed last weekend. Below is a short message --translated by the team at Industry Arabic -- that another man recently condemned to death shared with the "Freedom for The Brave" group, an activist group that highlights unlawful detentions. The death sentence of Amer Musaad was upheld and approved by the Grand Mufti this week.

"I truly don’t want to spoil your wonderful night. I don’t know exactly whether your night is wonderful or not, but for me, anything other than this solitary confinement where I crouch would be nice and wonderful…I won’t go on long. I just wanted to let you know I’m waiting for the sentencing hearing for three of the four cases in which my case file has been sent to the Grand Mufti [Ed.Note: The Mufti approves all death penalties]. I’m waiting for the sentence to be pronounced in only five days, on 18 May 2015. Don’t tell me that there’s nothing you can do for me. You can do a lot. Post about me, tell them I was tortured like nobody else, and that I confessed only to be spared more torture. I didn’t know that death was waiting for me four times over…Tell them that I don’t deserve to be killed!"
#Life_for_Amer_Musaad
Amer is accused of bombing the Dakahlia security directorate, an attack that occurred on 24 December 2013 – two weeks after he had already been arrested.

 

 

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.

Solving the Rubik's Cube of Egypt's court verdicts
Image by Glennz (click for link)

Image by Glennz (click for link)

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.

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).

Secondly, it does raise the question of whether – in free and fair elections – giving policemen and soldiers the right to vote would make any difference. Their numbers, including conscripts, amount to nearly two million, enough to make a difference in the last presidential elections, when it is assumed many would have preferred to vote for candidate Ahmed Shafiq.

But whatever their voting preferences, the question may be more whether these institutions would direct their members to vote a certain way – or even lead to the spreading of the hyper-partisanship that characterizes Egyptian politics into the military, an institution that is most keen on maintaining its internal coherence, chain of command, and remaining "above" politics. Thus the striking quote from a retired general in this Washington Post article:

“This is a threat to national security. Divisions in the streets will be reflected in the military — the sectarianism, the partisanship,” said Hossam Sweilam, a retired general who served in the military for more than 30 years. “We are different from other countries. We have political problems. ... This (ruling) would be in the interest of the Muslim Brotherhood and could be a problem for the cohesion of the military.”

The objections by the Brothers and other Islamists have not been particularly reasonable – they argue that this would bring politics "into the barracks" and ask whether the list of conscripts, soldiers and officers would be released to political parties, or whether the people who guard voting stations will then choose this or that candidate. All of this is moot, since barracks can still be made politics-free, the only list political parties should have access to is the national register, and it's easy enough for army and police people to go vote when they are off-duty and out of uniform. After all, as Mohamed ElBaradei points out, most democracies grant a universal right to vote. (See a wider range of reactions by political leaders here.) There is little reason, in principle, to deny the military and police the right to vote ordinary citizens have. It is the logic of a praetorian state, where somehow these stand apart (or actually above) ordinary society, that considers such people "special".

The better argument is that granting a universal right to vote is that these institutions are not ready to implement the safeguards against abuse that exists in democracies. The police is clearly still mostly hostile to the Brotherhood in particular and many of the revolutionary parties. The army, with the backing of the Islamists, has placed itself above oversight in the new constitution. There is very little trust between any political actors, and between these institutions and the political class at the moment. This is not the time to experiment with a major change in regulation – it would be better to actually get elections organized at all, around a formula that is politically consensual. As Egypt continues to pay for the mistakes of the SCAF-led transition and the Brotherhood's go-it-alone style of politics (and their almost comically poorly written constitution), it limps from crisis to crisis with still no horizon for a normalization of politics – one in which the reforms that would, among many other things, enable everyone to vote could be carried out. 

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.

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.

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.

The footprints of the compromise can be found in today’s statement by the Supreme Judicial Council (SJC). While yesterday’s Judges Club meeting got (well deserved) attention, the SJC is actually the authoritative body that oversees the judiciary. Staffed by a group of senior judges, its statements can pack a punch. And today it has called on judges to do their work (and thus not to strike). But there is also one critical element in today’s statement that is less immediately apparent because it is difficult to understand for anyone not schooled in Egyptian constitutional controversies of the mid–20th century and French constitutional thought of the nineteenth century (I’m an amateur in the first category and a hopeless novice in the second, but I’ll do my best to explain.) It rests on the doctrine of “acts of sovereignty.” (Those interested in a bit more expertise and depth should consult Mohamed Maher Abouelenen, “Judges and Acts of Sovereignty,” in Nathalie Bernard-Maugiron (editor), Judges and Political Reform in Egypt.)

The SJC seems to recognize some of Morsi’s authority to act but only related to acts of sovereignty. That suggests in effect that he can a issue constitutional declaration but not in matters that should be covered by normal legislation. The doctrine of “acts of sovereignty” holds that officials can sometimes be acting pursuant to some clear legal authority that is subject to normal procedures and judicial oversight. On some isolated matters, however, they draw their authority from the fact that they are acting in a sovereign manner; such actions are not subject to court review.

If that is less than clear, the problem is not merely my ability to explain. It’s also the doctrine itself.

“Acts of sovereignty” is a vague idea that past authoritarian rulers have used as a bulldozer. A lot of judges are embarrassed about the doctrine and the Supreme Constitutional Court in Egypt tried to chip away at it in the 1980s and 1990s and even move toward an approach more familiar to Americans in which courts restrain themselves in some “political questions” that are properly left for the political process rather than any judicial one.

But the doctrine has come back in force in discussions since February 2011. It is a major part of the current legal case involving the Constituent Assembly and the courts’ authority to dissolve it.

What the SJC seems to be suggesting here is that parts of Morsi’s constitutional declaration–and his authority to issue the declaration–can stand, but that parts of it cannot or perhaps that they cannot be applied in the way that they have been.

For those looking for a compromise, this may provide a basis. Are there such people? A few—and I suspect that judicial and presidential figures are making a go of hashing out some details now. And if they succeed, this may lead to a style of compromise that is now a bit familiar in which antagonists shout loudly, tie up the matter in abstruse legal doctrines which nobody can understand, and move on to a new problem.

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:

 

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.

On Wednesday, a verdict in the trial of the officials and former regime bigwigs alleged to be involved in the February 2–3, 2011 “Battle of the Camel”, one of the bloodiest episodes of the 2011 uprising, were acquitted. The public reaction was fury, partly at the judge who made the ruling but especially at prosecutors for doing such a poor job in preparing the case. The following day, Morsi asked Mahmoud to step down from his position and take the sinecure of a post as Egypt’s ambassador to the Holy See (one of the most prized posts in Egyptian diplomacy, apparently because there’s not too much work and yet you get to live in Rome). Mahmoud refused to step down, on the grounds that the president does not have the authority to sack him — only a judicial institution called the Supreme Judicial Council does. Opposition politicians and many luminaries of the judiciary condemned the move as a brazen attack on the independence of the judiciary — precisely at a time when tensions are already high between the judiciary and the Muslim Brotherhood, over a new judicial reform law and the part of the new constitution that will define the powers of the judiciary. Later, Mahmoud revealed that he has received threatening phone calls from the vice-president and senior Brotherhood figures, including hints that it would be a shame if his life was put in danger by popular fury. The president’s side initially holds its ground, but soon backtracks as the Judges’ Club holds a meeting and comes out saying sacking Mahmoud would be a coup against the independence of the judiciary. Within 48 hours, Morsi and Mahmoud meet, begin to downplay the entire episode as a misunderstanding — that Morsi was just making an innocent proposal, or that his intention was to protect Mahmoud, etc. Judges, in the meantime, say that there will be “no Tantawis in their rank”[1] and even pro-MB legal luminaries like Tarek al-Bishri condemn the whole episode.

The irony in all this is that sacking Mahmoud was a demand of revolutionary groups since just after Mubarak’s fall. But, either because Morsi did it in apparent contravention to the laws and traditions of the Egyptian judiciary (exactly how that is the case still escapes me, but I’m sure Nathan Brown will explain it all), or because it was seen as intolerable executive encroachment, it could not fly. Perhaps, overall, it was because this did seem like a brazen, over-confident attempt to leverage an unpopular verdict to get a man who, in recent months, had allowed many cases against the Muslim Brothers’ political interest (some of them absurd or frivolous, such as the case to judge on whether the Brotherhood is legal — does it matter when it party is definitely legal?) to get to court. And to send a message of toughness to the judiciary. On Mahmoud’s side, it appears what initially was an easy way to get out at a time when he has multiple cases against him and risked to face the revolutionary music became unfeasible when it became the center of attention. Quietly going to Rome is one thing, doing so in this manner is another. His calculus must have been that taking such an offer would be tantamount to an admission of guilt.

I thought it was worth recapping all this as I glanced at today’s headlines in the main Egyptian newspapers. I think the headlines tell us a little something about where the papers stand in today’s Egyptian political spectrum, and about their professionalism.

Government press

  • Al-Ahram (new editor is close to Brotherhood): The president reconsiders his decision, the prosecutor-general is maintained
  • Al-Akhbar: End of the prosecutor general crisis; The president cancels his decision to appoint him as ambassador
  • Al-Gomhouriya: Prosecutor general crisis: The law and legality triumph
  • Rose al-Youssef (formerly fiercely anti-MB): Prosecutor general crisis: Victory for rule of law

Private press

  • Al Masri al-Youm: Morsi reconsiders his decision; the prosecutor general wins
  • Al-Shorouk al-Gedid: The president of the republic loses his fight against the prosecutor general
  • Al-Tahrir (Anti-MB, pro-revolutionary): Justice comes out victorious in fight over prosecutor general

Partisan press

  • Al-Wafd (Anti-MB party): Morsi reconsiders his decision to sack the prosecutor-general
  • Al-Horreya wa al-Adala (Muslim Brotherhood newspaper): The president accepts a petition to maintain the prosecutor in his place[2]

  1. In reference to the sacking of army chief Hussein Tantawy on August 12, 2012.  ↩

  2. That headline appears to be a lie — by the newspaper and by the presidency.  ↩

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. 

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.

While I understand that the court mostly based its argument on electoral laws — the "unconstitutional" law electoral of 2011, replacing or amending previous ones being the chief problem — I was not sure what parts of the 2011 Constitutional Declaration the said law violated, particularly since previous decisions to dissolve parliament (in 1987 and 1990) often invoked in this case took place under a different constitution. Indeed, oddly, there are references to both the 1971 Constitution (under which many laws regulating political life where enacted) and the 2011 Constitutional Declaration now in place. The court itself at times seems to hesitate between the two, as if both were somehow still relevant rather than just the latter.

Once again, the key argument of the court is that the 2011 electoral law discriminated against independents because while members of political parties could contest both the list system and the simple majority system, non-affiliated politicians could only take part in the simple majority races. This, it ruled, is a violation of the principle of equality, as enshrined in Article 7 of the 2011 Constitutional Declaration:

Law applies equally to all citizens, and they are equal in rights and general duties. They may not be discriminated against due to race, origin, language, religion, or creed.

Here's the court's long-winded argument:

Whereas it is established that the political system in the Arab Republic of Egypt shall be a multi-party system – under the 1971 Constitution, and confirmed by Article 4 of the Constitutional Declaration – considering that this multiplicity aims primarily to deepen democracy and anchor its foundations within the framework of the right to run for office and vote, which are considered a primary gateway and a basic rule for it. Hence, these rights were guaranteed by the Constitutional Declaration to all citizens, who hold popular sovereignty in accordance with the provisions of Article 3 of the Constitutional Declaration, and exercise it according to the means indicated in that Declaration. There is no proof of this stronger than the fact that the multi-party system is what carries within its folds a system in which opinions may agree or disagree, while the national interest remains its framework, standard of assessment, and check on their activity, which is an interest that is maintained by the whole people. The multi-party system was not a means adopted by the constitutional legislature to replace one domination with another, but was considered a straight path for national action through the democracy of dialogue, within which opinions are numerous and varied, with the role played by political parties connected in the end to the wish of the voters in all their different aggregations. It is a wish which manifests itself when they freely choose their representatives for parliament, and in the weight their votes throws behind those who are competing for the seats. This is what the Constitutional Declaration was intent on ensuring, guaranteeing the right to vote and to run for office, and making them equal in the exercise of those two rights. It did not permit discrimination between them in the bases on which they exercised these rights, nor did it give preference to some citizens over others in any issue related to them. It granted these two rights to the citizens -- who meet the required conditions – regardless of their varied affiliations and political opinions, in order to guarantee that national action remains collective, with no preference for some citizens over others. Through this collaborative effort in building up national actions, political parties shall work with those not affiliated with them, in order to anchor the foundations of these actions. Thereby, the true meaning of Article 3 of the Constitutional Declaration is realized, which does not grant popular sovereignty to one class, excluding the other, nor impose the authority of one group over the other. Within this framework lies the value of the multi-party system as a constitutional purpose for deepening the concept of democracy, which does not offer political parties a role in national action that exceeds the margin of confidence granted by the voters to their candidates, who compete with others according to objectives rules unlimited by any creed, and unrestricted by any form of affiliation, whether political or non-political, so that all citizens who fulfil the conditions set for this would have the same opportunity – through which they influence, equally among themselves – the shaping of national policy and the determination of its final features. This is confirmed by the fact that the Constitutional Declaration does not include a provision compelling citizens to join political parties, or conditioning the exercise of political rights related to the right to run for office and to vote on party affiliation, which indicates by necessity that it establishes the freedom of citizens to join or not to join political parties, and to exercise their enumerated political rights through political parties or apart from them. Undoubtedly, the principles of equality and equal opportunity, which are the primary fundamentals and principles concerned in the matter, necessitate one legal treatment for all candidates, on the basis of equal opportunity for all, with no discrimination based on party affiliation. Discrimination in that case would be based on difference in political opinion, which is a matter prohibited constitutionally. The party system should not become a restriction on the freedoms and the public rights originating from it, one of which is the right to run for office, which is one of the public rights stipulated by the nature of parliamentary democratic systems, and imposed by its main cornerstone, which is based on accepting the sovereignty of the people, in accordance with the provisions of Article 3 of the Constitutional Declaration.

Of course remember that the 2011 electoral law was drafted by SCAF in September and then modified three times by October. Surely they could have checked it then?

I'll leave legal analysis to others — do chip in with your two piasters.

Egypt's legal mess

Recording the podcast earlier today, we realized we didn't want to clog up our airtime with long-winded discussion of some Egyptian legal developments that have taken place over the last few days. So this is a very summarized version of what has happened, with a few more links to other pieces for those interested.

On June 6, the Supreme Constitutional Court stated that the Political Election Committee overseeing the current presidential elections did not have the authority to refer to it anything, since it is not a judicial authority. In May, the PEC has decided not to disqualify Ahmed Shafiq from the race after parliament hastily passed a "political exclusion law" that withheld political rights from Mubarak-era senior officials. This has been interpreted various ways. For some, it means that the law should be applied and Shafiq will soon be disqualified, which would force fresh elections. For others, the court might still rule on the constitutionality of the law at its next session on June 14. Many legal scholars believe the law is unconstitutional.

In that same session, the court will also look the issue of whether the electoral decreed by SCAF last year for the parliamentary elections is constitutional. The argument against it is that the law should have not permitted members of political parties to contest the one-third of seats that are elected according to the single-constituency, simple-majority system rather than the party list system. These seats, in other words, should have been available exclusively to independent candidates. If this law is declared unconstitutional, then it is parliament that will be dissolved (or at least the one-third of seats concerned here.) This would be a major blow to the Islamists that dominate parliament, and to the Muslim Brothers in particular since they expected their parliamentary majority to win them the premiership and key cabinet posts.

All of this is to say that the situation is extremely confusing, since only two days before the second round of voting is supposed to take place, the elections could be cancelled. In fact, if parliament is dissolved as well, the transition would essentially go back to square one. It reinforces the perception that these are just bargaining chips in an elaborate game played by SCAF, which last week pressured political groups into agreeing on a new formula for the assembly that will write Egypt's next constitution.

Here are a few more links on this complex subject: