Last week, Egypt’s administrative court tried to invalidate the assembly charged with drafting the country’s first constitution since protesters overthrew president Hosni Mubarak over a year ago. Islamist attorneys defending the constituent assembly physically attacked their opponents outside the court and disturbed the proceedings.
After several hours, they requested new judges in another attempt to delay the verdict. The court will review their demand and if approved will appoint new judges in a few days, while Islamists work feverishly to finish drafting the constitution before the assembly is legally dissolved.
The administrative court took the case barely a month after the Supreme Constitutional Court issued another finding that shocked the world, invalidating one third of the members of the 2011 parliament on grounds that they were elected illegally. In response, newly elected Islamist president Mohamed Morsi charged that the court was overstepping its bounds. But what appears at first to be a constitutional coup actually marks a triumph for the rule of law and is a sign that Egypt’s military, Islamist groups and the other political actors who form its next government all may be held accountable for their actions. Even Mohamed ElBaradei—no friend of the army—has sided with the court.
Though not altogether independent, Egypt’s top court historically has enjoyed a great deal of autonomy, and it based last month’s verdict on two identical precedents that forced even the authoritarian Mubarak himself—with his emergency law in place—to dissolve parliament in both 1987 and 1990. At the time, Mubarak’s party controlled most of the seats, and in both cases he abided by the verdict and dissolved the legislature. Eventually, in 1990, he changed the electoral law to have all candidates be elected the same way. Prior to that, some candidates ran on party lists and others as independent candidates, violating the principle of equal opportunity in elections.
In the provisional constitutional declaration issued by the Supreme Council of the Armed Forces when it assumed power after the fall of Mubarak, Article 60 grants the generals the power to ask elected members of parliament to designate the constituent assembly charged with drafting the new constitution. But in order to qualify as representatives to designate the constituent assembly, members of parliament must be legally elected. If the 2011 legislature as a whole is illegitimate, therefore, all bets are off.
The work of the dissolved legislature will be considered valid until a subsequent parliament amends it or a court overturns it, but designating the constituent assembly is not part of the work of parliament. It is a task commissioned by the Supreme Council of the Armed Forces to elected members of parliament. Hence, if the individuals who designate the constituent assembly were never “legally” elected and the task of designating the constituent assembly is outside the scope of work of parliament, then there is no legal ground for the constituent assembly to be considered valid.
Secular reformers loyal to neither the army nor the Muslim Brotherhood warned loud and long of the dangers of a political transition with defective laws favoring either group, and the judiciary is now vindicating them. The court ruled that the 2011 electoral law violated the principle of equality of the law enshrined in both Article 40 of the 1971 constitution and Article 7 of the 2011 constitutional declaration.
Egyptians elected two thirds of the 2011 parliamentarians from party lists and one third as independents. Since different members were elected under different rules, the court found that they were not equal under the law, and its verdict invalidated both the electoral rules and the legislature elected under it.
Some observers charged that the court was mounting a coup, as it released its verdict only days before declaring Morsi the victor of last month’s presidential elections and at the same time as the military announced an amendment to the constitutional declaration giving the Supreme Council of the Armed Forces legislative powers until a new parliament is elected.
Yet both Article 49 of the constitutional declaration and Article 49 of the Law 48 of 1979 allow the Supreme Constitutional Court to overturn any law that violates the constitution, and its verdicts are final unless and until the country amends the document.
At the time, the Muslim Brotherhood-dominated parliament had been deliberating over a new law that could have curtailed the independence of the judiciary, which would have violated the independence of the judiciary and infuriated the judges.
Morsi’s Attempted Coup
On July 8, just over a week after Morsi officially became president, he issued a decree reversing the court’s decision and asking the legislature to reconvene two days later to continue its legislative activities until a new legislature is elected, sixty days after a new constitution drafted by the constituent assembly could be adopted.
Had it stood, that maneuver would have been a constitutional coup.
Morsi’s decision marked the first time in Egypt’s history that a president had overturned a verdict from the supreme court, and it unleashed an unprecedented wave of rage across the country.
Since late last month, Islamists have occupied Tahrir Square, seeking to pressure the generals and the judiciary. But secularists have started to demonstrate around another major landmark, the monument to the unknown soldier, and around the presidential palace, both in the suburb of Heliopolis.
The political scene has grown increasingly polarized, but tens of thousands demonstrated in support of the court, including Abul-Ezz El-Hariri, a prominent leftist politician who served in the dissolved parliament and joined dozens of others in suing Morsi to annul his decree reconvening it.
Thankfully, the Islamists and their supporters now are abiding by the law, although they claim they are victims of manipulation by the military and the secularists. The secularists, meanwhile, insist that they are not violating the law—in their mind, they are simply enforcing it. For their part, the generals quickly issued a statement declaring the army was not part of this conflict, which in their view is between the executive and the judiciary, and that they support the rule of law.
This is remarkable, considering that under Mubarak, the court stood on countless occasions with opposition candidates who experienced rigging or other irregularities in legislative elections and, in several instances, ruled against the regime. The high court even allowed Egyptians to create some opposition parties—including my own former Wafd party, in 1984—though of course Mubarak found other ways to minimize their effect.
When the court overturned Morsi’s degree attempting to reinstate the 2011 parliament, he had few choices. He could maintain his position and watch as the judges took a series of steps to counter him, rejecting any legislation issued by his “illegal” legislature or went on general strike.
Morsi also could have called for a referendum on whether or not the legislature should be dissolved, but that too would have been risky, considering the difficulty he had winning an election against even Ahmed Shafik, a man intimately associated with the Mubarak regime. More than likely, Morsi would have lost a referendum.
On July 10, the court ruled again in favor of the secular politicians and activists who wanted to annul Morsi’s decree reconvening the dissolved parliament, and he accepted the court’s verdict.
Under pressure from public opinion, he chose to abide by the rule of law.
The secular reformers have proven they are stronger than anyone thought. While they are not as well organized as the Islamists and cannot yet form a movement to challenge the Brotherhood, they have demonstrated that no one can be elected without their support. And perhaps more importantly, they have proven that in times of danger, they will stand up against any group that seeks to monopolize power. Over time, these ordinary citizens are getting stronger, and the world cannot ignore them.
Like most countries, the United States has shown greater concern for product than process in Egypt. But in the midst of a major democratic transition, procedures matter a great deal. If a government won’t follow its own rules, why should Washington expect it to honor its commitments to others?
If Egyptians are to bring about a new democratic government, getting there will require rule of law above all, and the judges have just won a major battle for it.
Khairi Abaza is a senior fellow at the Foundation for Defense of Democracies and a former official in Egypt’s secular liberal Wafd party.
Image: Ahmad Badr