Egypt’s route to political transition over the past year has been bumpy, confusing, and thus far guided by the roadmap laid out by the Supreme Council of the Armed Forces (SCAF) in the interim constitution it unilaterally declared on March 30 of last year. But on January 18, the generals leading the country seem to have hit a full roadblock ironically anchored in the temporary legal framework they designed themselves: In a surprising preliminary ruling – expected to be finalized by the end of the week — the Supreme Constitutional Court (SCC) struck down parts of the presidential election law the SCAF was about to issue by decree.
What was the SCC really doing in ruling against a law that had not been promulgated yet? And how much of an obstacle is yesterday’s ruling to the military’s agenda?
The SCC was undertaking an unusual role in several respects but not an uninvited one. And it a subtle way, it may actually have clarified some lingering ambiguities about Egypt’s interim legal framework that were not resolved by the Constitutional Declaration last year. To understand why, we have to probe a little into the ruling and the legal context in which it was issued.
In reviewing the constitutionality of the SCAF’s draft law regulating procedures and candidate eligibility requirements for the presidential election, the court’s objections were largely technical rather than substantive. The SCAF’s proposed law amends 15 articles from Law 174/2005, governing presidential elections. That law was rightly criticized for consolidating Hosni Mubarak’s power and his prospects for re-election by forming a Presidential Election Commission (PEC) packed with government loyalists and shielded from oversight by the legislative or judiciary branches. According to extensive press reports, in its January 18 ruling, the SCC took issue with the SCAF’s draft on several technical grounds:
- The court rejected the draft law’s stipulation that the chairmanship of the Presidential Election Commission, initially headed by the Chief Justice of the SCC, should pass to the President of the Cairo Court of Appeals if the chief justice must be replaced. In its ruling, the SCC argued that this provision violates articles of the March 30 Constitutional Declaration which implied that chairmanship of the committee should devolve to the oldest vice-presidents of the SCC.
- The Court found the SCAF’s draft impinged on the prerogatives of the PEC or ventured beyond the text of the interim constitution in several areas: elaborating on the candidate eligibility requirements already defined by the March 30 Declaration; mandating notarization of the 30,000 signatures required to meet the eligibility threshold; instituting a more restrictive definition of Egyptian citizenship; and authorizing a two-day voting period (a matter that should have been left to the PEC).
What prompted the SCC to review a law that had not yet been placed on the books? Almost never has the Court exercised prior review; its constitutional work has largely been restricted to reviewing laws after they have been passed. But this was not a power grab by the Court; just the opposite. The SCC was specifically tasked by the country’s constitutional declaration with reviewing the draft law before the SCAF issues it. It was given a similar role back in 2007, when it was required to review the draft law on the same subject. Why would Egypt’s ousted president and its currently ruling generals have signed over such an important job to a Court not under their complete control?
Although it may look like a concession to the judiciary, granting the SCC the authority to preemptively veto the draft law would actually prevent an even more damaging attack on the legitimacy of the executive branch in the future: Mubarak and now the SCAF wanted at all costs to avoid having the SCC strike down such a law after the president was elected. Such a ruling after the fact would immediately create confusion and a leadership vacuum. There was reason to think the SCC was capable of undertaking such a step, since it has previously struck down the laws by which sitting parliaments were elected, forcing new laws to be written immediately and new parliaments to be elected.
So what may look like a preemptive power play by the judiciary was actually the result of a premeditated maneuver by the SCAF to prevent a more serious legal challenge down the road.
Despite the fact that the SCC’s ruling was foreshadowed and in fact mandated by the SCAF’s own interim constitution, the decision was undoubtedly still awkward for both parties. Over the past year, members of the Court have actually been consulted extensively on the legal and constitutional issues associated with the transition. Evidence of the judiciary’s consultation with the SCAF is extensive: Some of the SCC’s own personnel have been involved in helping the SCAF draft its constitutional proclamations; SCAF generals have sometimes cited advice they have received from SCC judges to legitimize their actions; and some judges have taken public positions backing the military’s handling of the transition. With some judges–though not the full Court itself–partly a player, it becomes a bit odd for the SCC to be adjudicating issues that some of its personnel have been involved in.
Whatever position individual justices took, and however many complications the SCC may have caused the SCAF in forcing it to revise the law, the January 18 ruling may have been a very real blessing for the generals. To date, their constitutional conduct has been so confusing that it has risked leaving Egypt in a kind of a vacuum. When the generals asserted control in February, they first suspended the constitution, leaving the country in a constitutional no man’s land. Then they asked a committee to develop a limited number of amendments for the 1971 constitution; the members were told not to try to rewrite the entire document. The proposed amendments were then submitted to a referendum in March. After voters overwhelmingly approved the package of amendments, instead of reinstating the 1971 constitution as amended, the SCAF did what it had barred the committee from doing: it developed a comprehensive (if interim) “Constitutional Declaration” to govern the country. It declined to submit that document to the people.
A couple supplementary constitutional declarations have since been issued to tinker with the text. All along, legal experts have been confused about the validity of a temporary constitution that deviates from the original text approved by voters and seems to be in a constant state of flux, subject to the political needs of the moment as determined by the SCAF. For example, the amendments drafted by the SCAF-appointed committee last March were clearly predicated on the assumption that a president could be elected before the constitution was written. But the SCAF already seemed to back away from that position almost immediately, because the Constitutional Declaration of March 30 wrote the SCAF’s position into Egypt’s governing framework, explicitly allowing it to exercise presidential authority even as the constitution was being drafted—and perhaps until it was completed. Up to this point, the precise sequence of constitution drafting and presidential elections remains unclear and contested.
In exercising judicial review over the SCAF’s new draft law, the SCC was faced with a very strange dilemma: The court was supposed to measure the draft law against the constitution–but which constitution? The 1971 constitution had been extra-constitutionally pushed aside and nobody is asking to revive it. On the other hand, the package of nine amendments approved by the people—who are, all acknowledge, the ultimate source of sovereignty–might be seen as fully legitimate, except that they were approved as amendments to the 1971 document that has since been discarded. The "Constitutional Declaration" – which problematically layered an additional round of unilateral revisions on top of the original text approved by voters — owes its legitimacy only to the SCAF’s say-so.
In presenting its ruling yesterday, the SCC did not really go into these issues in any explicit way. But that is just the point: by declining to do so and by accepting the Constitutional Declaration as the yardstick by which to measure the law, the SCC was implicitly blessing a document whose birth – in an ambiguous legal environment of military rule and emergency law — could easily be portrayed as illegitimate. In a time of constitutional interregnum, the Court charged with protecting the constitution chose the SCAF’s Constitutional Declaration as the document to treat as authoritative. In forcing the generals to tidy up the text of the specific law regulating the presidential election, the Court implicitly endorsed the Declaration’s legal status as the law of the land, now clearly superseding both the 1971 document and the package of nine amendments approved by referendum.
So what is the next chapter in this constitutional drama? Now that the SCC has demanded revisions to the presidential election law, the SCAF is facing pressure to produce an amended law very quickly, and if possible, before the newly elected People’s Assembly convenes for its first session on January 23. The ruling generals have good reason to finalize the law before the new parliament is seated, because many of that body’s members – particularly the representatives of the Muslim Brotherhood’s Freedom and Justice Party (FJP) – are likely to challenge the SCAF’s legislative authority. In preparation for the first parliamentary session, the FJP is already set to propose new laws regulating judicial authority, wages, pensions and restricting monopolies, and the party will likely resist any effort by the SCAF to interfere with or override its ambitious legislative agenda.
For the SCAF, the SCC decision may be the writing on the wall, signaling that the days of rule by decree may be coming to an end. But while the military’s power to arbitrarily issue future ad hoc legislation may be curbed by the new parliament, the SCC decision will likely serve to protect the SCAF’s interests by legitimizing its existing constitutional declaration as the authoritative legal framework for the duration of the transitional period.
Nathan J. Brown is a professor of political science and international affairs at George Washington University and nonresident senior associate at the Carnegie Endowment for International Peace. Among his writings are The Rule of Law in the Arab World (1997); Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (2001); and When Victory is Not an Option: Islamist Movements in Arab Politics (2012). He can be reached at [email protected].