Having dissolved parliament for unconstitutionality, the Egyptian Constitutional Court rejected President Morsi’s decree which established its reopening. Is this an institutional clash between the powers of the state or a political clash between old and new regime?
The High Constitutional Court did not dissolve the People’s Assembly. It simply declared some provisions of the electoral law as unconstitutional for having infringed the principle of equality among the candidates. In fact, 2/3 of the constituencies were reserved for the candidates of the political parties on the basis of the list voting, while the independent candidates, not members of a recognised political party, were only able to compete on the remaining third, allocated to uninominal ballot, but in which the candidates of the political parties could also run. Its decision is in conformity with its previous jurisprudence considering that, on two previous occasions, in 1987 and 1990, the Constitutional Court declared the previous electoral laws unconstitutional which had in turn infringed the principle of equal opportunities among candidates of political parties and independent candidates. The Constitutional Court is not competent to dissolve parliament and can only give its opinion on the constitutionality of laws. Nonetheless its decisions are binding for all the state institutions. And the logical consequence of the Court’s decision is that the People’s Assembly, insofar as elected on the basis of an unconstitutional law, is not legitimate and must be dissolved. The same thing happened in 1987 and 1990 following two similar decisions by the Court.
With regard to the decision that annuls President Morsi’s decree, this was taken within the power of the Court to resolve the disputes arising from the exercise of his decisions, in accordance with article 50 of its rules.
The judges of the Constitutional Court were formally appointed by Mubarak, but according to a mechanism of co-optation: the judges in office propose a candidate, just as the President of the Court (usually it is the same), and the President of the Republic chooses from among the candidates proposed if there are two, or, if there is only one, appoints him directly. Once appointed, the judges cannot be removed. The judges of the Constitutional Court in particular have complete independence with respect to the Ministry of Justice, which is not the case for the other magistrates. I do not believe that the suspicion is justified that they represent and defend the old regime. It is true instead that the president of the Constitutional Court is directly appointed by the President of the Republic at his complete discretion, which is what allows the head of the state to put people he trusts at the head of the Court. For a long time the tradition in force within the Court was to appoint the oldest member to its summit. This tradition however was lost at the beginning of 2000 when Mubarak began to nominate presidents chosen from other magistratures (for example, the Court of Cassation, the Court of Appeal of Cairo). The office was in fact then politicised.
The Egyptian courts have a strict hierarchy and the president of the court has important actual powers of organisation and control of his own jurisdiction. It is also true that the Egyptian magistrates are generally quite liberal but conservative. They usually come from the upper-middle class, are often the children of magistrates and go through rigorous vetting carried out to enter the magistrature: an investigation is made by the security services aimed at ensuring that the candidate comes from a suitable social environment, from a family in which there are neither Islamists, nor left-wing militants nor criminals. Many are therefore rather close in their political, social and religious convictions to the men of the old regime and the army. But this does not stop them from being politically liberal. In 2005 this was seen when a number of reformist judges opposed Mubarak’s regime, appealing to a real independence of the judiciary and to transparency in the elections.
In your opinion, following Morsi’s victory, will the Muslim Brotherhood try to dismantle the structure of the old regime reforming the state institutions in their image or will they be satisfied with a compromise with the old leadership?
Until now the Muslim Brotherhood has had very limited room for manoeuvre because it must still come to an agreement with the army that has kept an important part of the executive power. Furthermore, since the dissolution of the People’s Assembly, the supreme council of the armed forces has exercised legislative power again. Moreover what exactly is the Muslim Brotherhood’s image and what kind of state does it really want to build? Until now they have always agreed to stand on the ground of the modern concept of the state, founded on national sovereignty and characterised by the separation of powers. They have never made any claims to the return to an Islamic concept of state organisation, on the model of the caliphate for example. They have founded a political party, fought to win the elections and at the moment all their energy is aimed at seeing over the drafting of the new constitution. They are opposed to the dissolution of parliament in the name of the respect of the people’s will. All these institutions and concepts are alien to the classical Islamic concept of the state. If they intend to reform the institutions inherited from the time of Mubarak, this will always be within the framework of the political systems that are known in the West. After having been partisans of a parliamentary regime, they now seem in favour of a mixed one, but there has never been any question of introducing a theocracy. The constituent assembly, appointed last June and whose fate depends on a decision by the High Administrative Court, has begun to draft a constitutional bill that takes up the 1971 constitution, modifying some of the provisions laid down in it, above all to limit the president’s power. The only really controversial provision adopted until now – apart from the question of article 2 and the role of sharî‘a – is the one that limits religious freedom to the three recognised religions. This means that the Baha’i or Hindus will not be able to practise their religion and their rites in public. This was in fact the case before too but not on the basis of a constitutional principle. There could also be a new article that condemns blasphemy. It would have to be seen whether such a provision would be incorporated in the law, and in what form, to be actually applicable before the courts.
Can you foresee that the Constitutional Court will continue to work as a counterweight to the President of the Republic? Does its profile permit it to take on this task?
As I have already said, the Egyptian magistrates have a strong tradition of independence and protection of the state of law. What is probable is that they will share the conservatism of Mubarak’s men and their fear of seeing the Islamists coming to power. Undoubtedly they have no desire to find themselves in a theocratic state, that is if the Muslim Brotherhood wants to establish one, and it is furthermore likely that they have no desire to apply laws directly modelled on the sharî‘a, when most of them have a very superficial knowledge of Islamic law. The jurisprudence of the Constitutional Court relative to the interpretation of article 2 of the constitution of 1971 (‘The principles of the Islamic sharî‘a are the main source of the legislation’) on the other hand shows how this jurisdiction has made recourse to various juridical mechanisms to limit the reach of such provision and, consequently, the place of sharî’a in the Egyptian legal system.
What instead is possible is that, in the case of a conflict between the Court and President and in the case that the President were backed by a parliamentary majority, the law on the Constitutional Court is amended to limit his powers foreseeing for example that his decisions be ratified by the People’s Assembly, as already foreseen by a Salafite deputy’s bill. Or that the procedure for the nomination of the members of this jurisdiction be modified to allow a real control on the appointments or to proceed to a ‘batch’ of Islamist judges which would balance the weight of the laical judges of the Court. The bill of the new article 2 of the constitution drafted by the constituent assembly with an Islamist majority foresees that Al-Azhar has the last word on whatever concerns the interpretation of the sharî’a. This article, proposed by the Salafis, aims at taking away the power of interpretation of article 2 from the Court.
With regard to this, how can one consider the pressure exercised by the Salafis to change article 2 of the constitution to substitute the reference to the principles of the sharî’a with the application of the norms of the sharî’a? Is it an issue that can really be the topic of debate?
The constituent assembly with an Islamist majority has already debated article 2. The Salafis in fact asked for an amendment of this article so that the ‘Islamic sharî’a’ and not ‘the principles of the Islamic sharî’a is the main source of the legislation. This proposal was aimed at countering the interpretation that the Constitutional Court had made of article 2 of the 1971 constitution, making a distinction among the principles of the sharî’a and considering obligatory only those whose source was certain and had not given rise to any divergence of interpretation among the fuqahâ’ (jurisconsults). The Salafis however were not supported by any party or institution present in the constituent. The Muslim Brotherhood, particularly, opposed this amendment maintaining that it had no reason to exist. Even al-Azhar pronounced itself in favour of the status quo. As said above, the Salafis nonetheless managed to add a sentence to article 2 which gives the competence of interpreting the sharî’a to al-Azhar, thus depriving the Constitutional Court of this power. However it remains to be seen how al-Azhar’s intervention will take place in practice. Furthermore, considering that the present shaykh of al-Azhar is rather liberal and against the ideas of the Salafis, this does not go to say that the latter will obtain something from the new regime. But they are betting on the future and on the arrival of a figure at the top of this institution who is more sensitive to their ideology.
Upon initiative of al-Azhar, the bill of article 2 foresees, lastly, that the Christians and Jews can benefit from their own regulations in what concerns family law, in religious matters and for the election of their own officers. Whatever the contents of the future article 2 (or of another article) may be, one must not lose sight of the fact that the constitutional reference to the sharî‘a or to Islam does not mean that the state will necessarily be a theocracy nor that the law will be reformed to be ‘Islamised’. All the present constitutions of the Arab countries refer to Islam or to the sharî‘a, but for most of these it is only a symbolic reference, that is not translated into the state institutions or the legal systems. To apply the sharî’a, in itself, means nothing, since there are as many states as there are ways of applying it. Tunisia, for example, continues to have the family code that guarantees equality between man and woman, when Bourguiba always expressed his conformity with Islamic sharî’a. Until today the Muslim Brotherhood in Egypt has never clearly stated what they really mean by the ‘re-Islamisation of law’. In particular, they have never stated that they would reform the penal code to introduce punishments ‘hudûd’ (flagellation, stoning, amputation) for a number of crimes.