The Supreme Constitutional Court’s Revenge?

There are many notable political effects of the twin rulings, but there is also a startling indication of unexpected boldness from the SCC—a boldness that I had expected to dissipate with the passage of the constitution at the end of last year.

 Let us turn to the political effects first.

 The way in which the 2012 constitution is biting the hands that wrote it—in particular with its requirements of prior review of specific laws (provisions written in order to insulate elected bodies from post-election dissolution from hyperactive courts) has already drawn attention (see my piece with Zaid al-Ali written earlier this year).  The actual effect is a bit strange.  Not only is the effect the precise opposite of what was intended—by having the SCC review the law over and over—but it also places the court in a critical position on a final piece of the transition to Egypt’s new political order.  While Egyptians have debated the correct sequence of the country’s transition process endlessly, the 2012 constitution as it has evolved has come to require that the process cannot be completed until a court has ruled that there is no constitutional flaw whatsoever in Egypt’s electoral framework.  And given the way that Egyptian elections have been run in the past—and the vagueness of much constitutional language the SCC has been asked to apply—that will take some time.

 But if the bottom line is no surprise, some aspects of the twenty-eight pages of constitutional flaws found by the SCC have drawn attention.  Most notable in domestic debates, for instance, has been the insistence that soldiers and security personnel have the right to vote—a requirement that seems based on a justifiable application of the constitution’s principles, but one that makes some Egyptians nervous that such ballots will not be fully freely and autonomously cast.

 So the game of ping-pong (as I suggested would happen in an earlier piece written with Mokhtar Awad) between the SCC and the Shura Council will continue, perhaps for the rest of the year.  It now seems likely that the Egyptian uprising will pass its third anniversary still in a transitional phase from a constitutional perspective.

 None of this is due to any proactive attitude on the part of the SCC. The justices did not request the right of prior review and had resisted earlier proposals to give it to them.  In a sense, the Court’s boldness comes in large part because prior review forces its justices into a corner, required to find any possible constitutional flaw now for fear that if they let it pass it will prevent them from examining the law after it is implemented.

In all these ways, the SCC’s boldness has been thrust upon it.  But this brings us to the way in which the SCC’s ruling is surprisingly bold, though not in a way that will likely have significant political effects this time.  One of the flaws found by the court was the electoral law’s failure to bar religious slogans and propaganda in campaigns as a violation of the constitution’s commitment to a conception of citizenship.  

 Why is this remarkable? Because the SCC is going beyond faulting the law for what it does say but instead overturning it for what it omits. Put differently, the SCC is directing the Shura Council that certain electoral practices must be banned, based on an expansive and detailed reading of what references to “citizenship” in the constitution require.  If the Shura Council passes an electoral law that does not specifically name religious campaigning as a violation of the concept of equal citizenship, the law is invalid.  The legislature is not free to be silent on the issue.  No other kind of electoral propaganda must be banned; only religious campaigning.

The issue itself is largely symbolic.  It will be very difficult for a legislative body overwhelmingly populated by Islamists to pass a law that bars religious campaigning. But if they bring themselves to do so in order to satisfy the SCC, they will likely find the bar easy to circumvent in all sorts of creative ways.

 So the SCC’s boldness will therefore not likely deeply affect the nature of Egypt’s parliamentary campaign whenever it occurs.  But it will deepen the gap between judiciary and Islamists and perhaps also further the determination of the Shura Council that the purge of the SCC begun by the 2012 constitution needs to be completed by the judicial law it is now considering.

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Nathan J. Brown is professor of political science and international affairs at George Washington University and nonresident senior associate at the                     Carnegie Endowment for International Peace. Tahrir.Squared (via Foreign Policy)