In the days preceding Egypt's first democratic election, the Supreme Council of the Armed Forces (SCAF) issued a series of constitutional declarations stripping the soon-to-be-elected president Mohammed Mursi of many of his powers. While the power play between these two forces continues to grab headlines, far less attention has been paid to the body that has facilitated this scenario and allowed SCAF to enjoy de facto legislative authority: Egypt's Supreme Constitutional Court (SCC).
Constitutional courts play an important, if often underpronounced, role in a country's transition to liberal democracy. But there is much that undermines the independence and objectivity of the SCC, not least its domination by judges appointed under the reign of former president Hosni Mubarak and by SCAF. Although appearing non-democratic might be beneficial in the short-term, it could prejudice their interests in the mid-term.
A slowly-emerging right to democracy is developing globally and the court has the potential to be one of the chief architects of this. So what lessons can the SCC learn from other constitutional courts? A look at two historical examples – from the US and Iraq – shows how the court could help to carve out a road to democracy.
US Founding Father Alexander Hamilton wrote that while the executive branch commands the power of the sword, and the legislature commands the power of the purse, the judiciary commands neither and thus must rely on the confidence of the public for its continued relevance. And in 1803, the year of the famous Marbury vs. Madison decision, the US Supreme Court, often credited as being the first constitutional court of its kind, demonstrated its potential as a major facilitator of democratic development.
The right to judicial review is not enshrined in the United States' Constitution. However, one of the presiding judges, Chief Justice John Marshall, determined that both the legislature and the executive branch had to act within the constitution, and it was the role of the judiciary to determine what the constitution actually said. In doing so, the chief justice and the rest of the court invalidated a law as unconstitutional, a law which had been passed by, and benefited, his own party.
In doing this, Chief Justice Marshall empowered his institution but not his political party. This pragmatic approach allowed the court to strengthen its own power and ensure its place in the political future of the budding democracy, all the while avoiding a view by the general public and the political elite that the court was merely a proxy for a single political party. By doing this, the court created an important precedent that one party cannot subvert a new constitution in order to continue its supremacy. This was a vital precedent not only for the US, but for all future states moving towards a working democracy.
In Egypt, the Supreme Constitutional Court is already in danger of losing legitimacy. After the Court decided to dissolve the popularly-elected parliament, protestors chanted “down with military rule” at its doorstep. A more pragmatic approach, such as acknowledging the failures of the electoral system but leaving power in parliament’s hands until a new election can be held (thus keeping power from the SCAF), may have appeased the masses and enhanced the Court’s legitimacy.
Iraq’s de-Ba’athification crisis of 2009 provides further direction for the Egyptian court. De-Ba’athification, the policy of political purification attempting to remove the political power and influence of Saddam Hussein’s Ba’ath party, was originally enshrined in the country’s initial 2003 constitutional framework, before being removed in 2008 and set forth in a series of parliamentary acts. In the initial years of its use, the entire system was widely criticised, with even its main architect saying it had been “poorly implemented” and applied “unevenly and unjustly".
This trend would continue in the run-up to the elections of 2009, with several Shia candidates using the de-Ba’athification process by applying to disqualify Sunni candidates. The body in charge of disqualification returned a verdict that 511 candidates would be disqualified. This was widely perceived as anti-Sunni. A major part of this perception was based on the fact that the two heads of the body charged with disqualification were Shia politicians with questionable backgrounds. After this mass disqualification, the competence of the body issuing disqualifications was challenged, along with several individual appeals filed to the appeals chamber.
The appeals chamber took two very important steps. First, in an effort to maximise efficiency, it issued an opinion that would delay the review until after the election, allowing all 511 candidates to stand for election and only reviewing those that won. This was met with outrage from all sides of the political spectrum, but it was also met with an agreement from the disqualification body to provide the court with the files it had previously been reticent to hand over and another agreement from the electoral commission to postpone elections until after the review had taken place. After this, the court reversed its course by acceding to the legitimacy of the disqualification body and subsequently reviewed individual candidate appeals, reinstating 26 of the 511 candidates that had been disqualified.
There are two very important lessons that must be learned from the Iraqi experience. First, the pragmatism and moderation that was vital in the Marbury vs. Madison decision discussed above has become no less important over the centuries. Had the Appeals Chamber agreed to wholly reinstate the 511 candidates by determining the disqualification board as illegitimate, it would have been viewed as vehemently pro-Sunni. Had it simply declined all appeals, it would have been viewed as pro-Shia. Instead, it forced the Shia body to turn over files and reviewed them, allowing for a fair appeals process, and overturning those that needed to be overturned. The second lesson is that it is often the job of the judiciary to save an elected or appointed body from itself. The disqualification body was appointed through an appropriate process, however its exercise of power created a risk of violence or extra-constitutional action based on its perceived one-sidedness. Never is this threat more prominent than in transitioning countries.
It is vital that the Egyptian Constitutional Court follows these two extraordinary examples. Courts exercise a unique power. They have the ability to undo the actions of elected bodies; this capacity must be viewed with caution. In the Egyptian example, the battle for power seems to be more multi-faceted than the sectarian categorisation above. There are many factions, including liberal secularists, Islamists, military and ex-military and many others. Any decision that is viewed as extremely one-sided will shatter the public faith in the body and make them appear to be nothing more than an unelected political actor. The balance of power in Egypt does not, at the moment, inspire public confidence. A court that does not hold the public’s trust can create unforeseen consequences – such as a newly-elected president convening a meeting of the dissolved parliament, defying the ruling of the country’s high court and potentially endangering a fragile balance of power and rule of law.
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