Egypt’s War of Attrition

Egypt is in a tug-of-war between old and new forces between the usual suspects – the military, political parties and the Brotherhood-led executive branch. But another political heavy weight has joined the fray – the Supreme Constitutional Court. The past two years since the revolution have shown that Egypt’s Supreme Constitutional Court (SCC) is a force to be reckoned with in Egypt’s new political landscape. One need only look to Egypt’s missing People’s Assembly and still un-enacted election law.

As analysts focus on political jockeying between the Muslim Brotherhood and its opponents, the courts are often assumed to be a disinterested stakeholder. To the contrary, the SCC has not cowed from rebuking the Morsi administration on key decisions. These decisions are part of a war of attrition between the SCC and the Brotherhood to which the winner is yet to be determined.

But the losers are clearly the Egyptian people.

Established in the 1971 constitution, the SCC is the only court in Egypt that specialises in and has authority to determine the constitutionality of new laws. Thus, no law could be amended or enacted without the SCC’s approval. This has proven to be a powerful tool in shaping electoral politics

Long before Morsi’s presidential victory, the Brotherhood viewed the SCC as a culprit in the exploits of the former regime. In the spring of 2012, newly elected Muslim Brotherhood parliamentarians openly challenged the independence of the SCC. The Justices, all of whom were appointed by Mubarak, were accused of being tools of the Mubarak regime used to validate laws that kept their corrupt benefactor and his cronies in power. The solution was to transfer the SCC’s jurisdiction under the Court of Cassation and reassign the Justices to the appellate courts.

And thus the war of attrition began.

In a highly controversial decision in June 2012, the SCC struck down Egypt’s new election law that had led to a whopping 70 percent victory by the Muslim Brotherhood and far right Salafi candidates in the People’s Assembly. When the SCC decisively dissolved the parliament – a major blow to the Brotherhood’s swift rise to power – the Brotherhood’s suspicions were confirmed. The Justices’ loyalties were suspected.

The SCC dismissed allegations of undue politicisation by focusing on the technicalities of the new law. Specifically, the election law failed to grant equal opportunity to both independent and party candidates to win allocated seats, as mandated in the constitution. When questioned about the far-reaching remedy of dissolving the People’s Assembly, the SCC declared that if a portion of the parliament was unlawfully elected then the entire parliament was illegitimate.

Newly elected President Morsi publicly decried the Court for reversing the people’s will. But his calls to reconvene the parliament were to no avail.

Not to be deterred, the Brotherhood shifted its focus to the provisions in the draft constitution governing the SCC. The Constituent Assembly, a majority of which were members of Brotherhood’s party and even more so after the few liberals resigned in protest, shrunk the number of Justices from 18 to 11. It also limited the SCC’s jurisdiction to a constitutional review of laws pre-enactment only, ensuring they could never again dissolve an elected parliament.

The Brotherhood may have not succeeded in eliminating the SCC altogether but it was determined to debilitate it.

The SCC’s next move was likely to come on December 2, 2012, when it was scheduled to issue its ruling on the validity of the Constituent Assembly. But in anticipation of an adverse ruling, President Morsi issued a constitutional declaration that included a provision prohibiting the judiciary from dissolving the Constituent Assembly or the Shura Council. When the new constitution was approved by Egyptian voters, the Court lost one-third of its justices and was stripped of its jurisdiction to review laws post-enactment.

Meanwhile, Egypt still lacked a lower house of parliament and a valid election law. The Shura Council quickly amended the law and sent it to the SCC for review. The Court bounced the law back after finding five articles in violation of the new Egyptian Constitution. The Shura Council amended the laws yet again believing the bill was now ready for enactment and parliamentary elections could proceed in April 2013.

But the SCC was not prepared to narrowly define its pre-enactment jurisdiction to a specific number of reviews. Rather, the SCC took the position that its pre-enactment review ended only after it ruled the entire law was constitutional. Until then, the law could not go into effect. This latest dispute has postponed parliamentary elections to October 2013, causing the Shura Council to serve as the sole legislative body notwithstanding its limited legislative powers.

Until now, Egypt lacks an election law needed to elect a parliament.

It remains to be seen how long this war of attrition will go on, and what further damage it could do to the SCC and President Morsi’s legitimacy. But one thing is crystal clear.  Egyptians simply cannot survive another era of dysfunctional government dominated by leaders who place their own political interests above the people.

As the common saying now goes in Egypt – no one has clean hands. But it is never too late to call a truce.

Sahar Aziz is an associate professor at Texas Wesleyan School of Law in Fort Worth, Texas. She serves as the president of the Egyptian American Rule of Law Association and is a fellow at the Institute for Social Policy and Understanding.

This article was published by Al Jazeera on April 7, 2013. Read it here.

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