As the countries of the Arab Spring continue to find their political footings after hard-fought revolutions, much discussion focuses on the power struggles between various factions within states. Egypt is a prime example. The typical narrative is one of the old guard of military officers, many of whom were members of former president Hosni Mubarak's inner circle, versus the Muslim Brotherhood. However, the institution of the Constitutional Court is often overlooked. It could find itself as the ultimate arbiter of power struggles.
Part I of this piece looked into the role constitutional courts have played in past transitions to democracy. There have been many instances throughout history where pragmatism has allowed the judicial branch to play a vital and helpful role in democratisation. It is the purpose of Part II here to determine why some constitutional courts have been able to assist in a country moving forwards while others have served as obstacles to progress.
A court can either support the status quo that existed before the revolution, thus standing in the way of the changes that come with progress, or it can facilitate progress, allowing for the realisation of revolutionary goals. South African history and current Egyptian events provide us with examples of both situations. The constitutional court in South Africa has, in the years since the fall of apartheid, proven itself to be a reliable agent of progress. Sometimes this requires acting on the side of the government, but often it means acting as a guarantor of transformative promises made to the people at the birth of the democratic republic. Egypt today is demonstrative of the opposite trend.
A central part of South Africa’s rise from apartheid was the promulgation of a new and permanent constitutional regime to replace the interim constitution that had guided the country through its first elections in 1994. The country’s elected officials would settle on a constitution that was expressly intended to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”, all the while working to “improve the quality of life of all citizens and [to] free the potential of each person”. The drafters knew that the legacy of apartheid was more than just political, but also economic. Years of racist regime ensured the white minority controlled not only all aspects of the government but also the economy, with South Africa’s black majority left impoverished. The new constitutional regime set out to give all the country’s citizens a fair shot.
As the country attempted to realise this goal, the constitutional court would find itself playing an increasingly important role. While the constitution would make broad and progressive promises such as the right to healthcare, housing, food and water, it was inevitable that these rights would require interpretation by the constitutional court before they could hope to be realised. Suffice to say, the court made itself central to the transformation of South African society by issuing wise and pragmatic rulings on many of the socio-economic rights guaranteed in the constitution. At the same time, the court has been mindful of the limitations in terms of resources that exist within the country.
Two examples illustrate this contrast. In one case, South Africa vs. Grootboom, the court was asked to interpret the housing guarantee in the constitution. The court responded that while no broad-based ruling can apply to all socio-economic rights, it was the responsibility of the government to take “all reasonable steps that are necessary to initiate and sustain” a broad-based policy to aid the country’s most vulnerable citizens. However, in another case, Soobramoney vs. Minister of Health, interpreting the guarantee of the rights to life and healthcare, the court acknowledged that all of these rights must be viewed in the context of finite resources, allowing the government much needed flexibility for development.
Why was the South African Constitutional Court such a willing and knowledgeable partner in achieving the new state’s goals? The answer comes down to the court’s membership. Under the 1996 permanent constitution, all members of the court were to be appointed by President Nelson Mandela after consultation within the government. This allowed Mandela, and his rainbow coalition, to appoint justices that took part in the struggle for freedom, meaning they both supported and understood its goals.
Unfortunately, since the fall of Hosni Mubarak, Egypt’s court has moved in the opposite direction. The well-publicised tensions between the Supreme Council of the Armed Forces (SCAF) and the recently elected Muslim Brotherhood has been exacerbated by a constitutional court that lacks public legitimacy because it is seen to be biased towards SCAF and to be a leftover of the old regime. The court has furthered this image by a number of activities, including ruling to dissolve the newly-elected parliament and decreeing that former regime insiders, including Mubarak’s former Prime Minister, be allowed to stand for political office. The conflict with President Mohammed Mursi and the Muslim Brotherhood came to a head as the president attempted to reopen parliament, causing the court to reaffirm its ruling.
The confrontational style of the Egyptian court should come as no surprise owing to the makeup of the court’s personnel. The majority of the court is a carryover from the Mubarak era. Additionally, while the newly-elected leadership could have had a chance to appoint members of other courts after a number of judges reached the mandatory age of retirement of 70, SCAF appointed new judges before the new president could be sworn in.
The lesson to be drawn from these contrasting examples is that personnel are important. While there are examples of institutions being so deeply corrupted during tyrannical and despotic regimes that they could never again gain the trust of a weary populace, most bodies can be rehabilitated based on the people who are making the decisions within them. The South African Constitutional Court rose out the ashes of a racist system where the law was viewed merely as a tool of the oppressors. This did not, however, happen overnight; the judiciary was not immediately purged at the end of apartheid. The judiciary was filled with justices who were trained under apartheid but were now responsible for transforming the state into a progressive one. This took place with an overhaul from the top down, starting with the interpretation of the constitution by a newly appointed constitutional court filled with people who had taken part in the country’s transition and knew what was required of them.
This did, however, require a coalition willing to work together for the betterment of the country. Personal and collective aspirations must be set aside. President Mursi’s recent actions in pushing to military chiefs to retire but taking them on as advisors may be an indication that the two biggest groups in Egyptian politics are willing to work together. Alternatively, they can be interpreted as a power grab by the Muslim Brotherhood. Egypt should learn from South Africa if it wishes to have a partner in the constitutional court. Egypt’s future remains in the balance. However, South Africa provides a road map for a helpful constitutional court.
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