Egyptians have been dazed over the past few months by a welter of constitutional controversies, arcane but portentous legal struggles, and momentous judicial rulings reconfiguring the basic elements of their political system. Indeed, they might be forgiven for imagining that they have been transported to Franz Kafka’s dystopian penal colony—their carefully crafted legal machinery, designed to deliver stern but certain justice, has so completely malfunctioned that its gears and devices are incoherently and senselessly destroying the Egyptian body politic.

Of course, nothing quite so severe is occurring. Egypt’s transition has survived—and sometimes has even been strengthened by—a series of surprising legal and judicial developments. But confusion still reigns and more surprises may be in store.

Nathan Brown

Nonresident Senior Associate
Middle East Program

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Egyptians elected a parliament that cannot figure out what its constitutional position is. They have been granted an interim constitutional declaration filled with mysterious silences that have led to partisan attempts to fill the gaps. And they have seen some of the most important post-revolutionary political decisions—the dissolution of the former ruling party, the disbandment of the constitution-writing assembly, the reversal of a Mubarak-era economic privatization policy—taken by courts erecting bold judgments on a foundation of flimsy legislative texts. In the months after Mubarak’s fall, courts seemed to be willing to accelerate some revolutionary changes; in the past few months, they seem to be slamming on the brakes instead.

For those desperate for certainty or allergic to drama, things could soon get even worse. One of Egypt’s two remaining presidential candidates, Ahmed Shafiq, is running under a legal cloud of uncertainty. And many legal observers expect the country’s Supreme Constitutional Court to strike down the law by which the current parliament was elected. If it does, not only will Egyptians have to trudge back to the polls one more time, but they will also see the slowly reemerging political order thrown back into confusion.

The Judiciary Gets Political

In the period since the revolution, as Egyptian judge Yussef Auf has noted, most of the important decisions have come from the State Council, a freestanding judicial body that has jurisdiction in cases in which the state or an official is a party. Last year, State Council courts reversed a series of privatization decisions, essentially halting an economic liberalization program that had been gradually gaining momentum in the Mubarak regime’s final decade.

The State Council’s jurisdiction over such decisions was not really contested: administrative actions of the implementing ministries are subject to the body’s review and state-owned enterprises are also considered official bodies subject to the State Council’s oversight. But the series of rulings, while perhaps legally sound, had the effect of reversing the old regime’s policy. Even some of those supportive of the decisions and legal reasoning suspected it was revolutionary enthusiasm as much as dry texts that formed the basis of the State Council’s actions.

Such a feeling deepened when the Council took a step that other political actors balked at: dissolving the formerly ruling National Democratic Party. The grounds cited by the Supreme Administrative Court, the court at the apex of the State Council, were both irrefutable and undeniably political—the party was described as having corrupted political life. Were such a ruling treated as a precedent, the power asserted by the court would have been breathtakingly expansive. But nobody expected to be in the same position again, so criticism was muted and largely restricted to genteel legal circles.

In 2012, however, the Council ventured into more contentious terrain. Egypt’s interim constitutional declaration granted the parliament the authority to “elect” 100 members of a body, called the Constituent Assembly, that was to draft the country’s constitution. A majority in parliament settled on an Islamist-dominated slate, one in which many groups felt marginalized or excluded. This quickly led almost all non-Islamists to boycott the body. There was no clear way out of the problem. The parliament seemed to be acting on a very solid legal basis even if it was an unwise political one—until the State Council was asked to rule on the matter.

When several actors sued the parliament for its action, a lower administrative court acted swiftly. It first ruled on the seemingly arcane legal point of whether the parliament’s action was an “administrative” one. While many other judicial bodies in the world would likely have hesitated before asserting authority in such a matter, the Egyptian court decided that this was an administrative question and effectively brought the parliamentary action within the scope of its jurisdiction.

The court then proceeded to offer an improbable interpretation of the word “elect.” The text originally drafted by the committee formed after the revolution had the parliament “choose” the 100 members, but in an unexplained revision, the final text of the constitutional declaration issued at the end of March 2011 was changed to use the word “elect.” And, the court ruled, that word meant that the parliamentarians were supposed to pick others, not themselves. That meant a good number of the members of the assembly could no longer participate—half of those originally chosen by the parliament had come from the parliament itself.

In one sense, the political result was healthy. It forced the Islamist parliamentary majority to retreat and agree to form the Constituent Assembly through a more consensual process. Negotiations among leading parties are now under way. But the audacious reading of the constitutional declaration might undermine the perception of political neutrality so central to the judiciary’s authority. Nor is the matter fully resolved. While the Muslim Brotherhood’s Freedom and Justice Party, the largest in parliament, has not directly contested the ruling, it continues to hold that some parliamentarians should be seated in the reconstituted assembly, opening the door for another legal challenge.

Will the Parliament Be Dissolved? Or Might It Strike First?

The State Council has not only reversed the parliament’s most significant decision to date, it also called into question the parliament’s very legitimacy. Earlier this year, it referred to the country’s Supreme Constitutional Court (SCC) the issue of the constitutionality of the law by which the parliament was elected. This placed a potential time bomb in Egypt’s transition: the SCC could easily send the members of parliament home within the next few months.

The argument against the parliament’s constitutionality rests on the hybrid system by which the body was elected, one which some Egyptians regard as unconstitutionally discriminating against political independents. When Egyptians went to the parliamentary polls, they cast two ballots. One was cast for a party list and those votes determined two-thirds of the seats in parliament; the other was cast for individual candidates and produced the remainder of the deputies. The two-ballot system, which was the outcome of a last-minute political bargain, allowed party members to compete either as part of party lists or for the individual seats. Lying behind the deal was a fear, which turned out to be unfounded, that old regime figures could slip in by winning individual races. The number of seats on the second ballot was reduced and members of well-organized parties were allowed to compete in the hope they could defeat old-regime independents—which they did. But the system provoked the complaint that Egyptians who are not members of political parties did not have an equal opportunity to run: they could be listed on the second ballot but not the first.

Could the SCC actually buy such an argument? Yes, and it has done so twice in the past—in 1987 and 1990 it forced the dissolution of parliament on precisely such grounds. (It struck down the parliamentary electoral framework a third time in 2000 on different grounds.) Steps were taken to preclude a similar constitutional challenge to the presidential race—the 2011 constitutional declaration required the SCC to review the presidential election law in advance. But no such review was required for the parliamentary law, so dissolution is a strong possibility.

Some well-informed observers expect that the court will have difficulty avoiding a ruling against the election law. While precedents do not carry the same value in Egypt’s civil law system that they do in U.S. courts, the SCC would likely have trouble completely repudiating logic it has used in very similar cases for recent parliamentary elections. But the stakes are quite different than in the past. When the weak parliament was dismissed under the old regime, nobody missed it. The current body, however, is far more independent, and dissolution would have potentially severe political implications that might lead the SCC to find a reason to balk. Judges and judicial observers I have spoken to over the past few months give conflicting predictions on the SCC’s likely course.

Where the SCC has clear discretion is over timing. Indeed, in the past it has dawdled for many years over some politically sensitive cases. Here what may matter most is the precise sequence of the SCC ruling with respect to both the presidential election and designation of the Constituent Assembly. If, for instance, the SCC had disbanded the parliament before the presidential election, it would have set off suspicions that a soft coup was in motion, especially given the surprisingly strong performance of Ahmed Shafiq—the man Mubarak appointed prime minister as his regime was crumbling.

If the ruling comes before the Constituent Assembly is seated, the SCC will have placed the country in an extremely complicated constitutional knot. The constitutional declaration requires the assembly to be elected by the “first parliament.” If that body were disbanded before it could act, the entire constitutional process would be thrown into even deeper confusion.

If the SCC waits until after the assembly is seated again, the stakes might be considered lower: when it has dissolved the parliament in the past, the SCC made clear that it regarded the actions the parliament had already taken as still valid. So the assembly might be able to continue its work unimpeded by the dissolution of the parliament electing it. Of course, to have a constitution-drafting process initiated by a parliament that was later ruled unconstitutional would be, at a minimum, odd; it would call the legitimacy of any document produced into question.

Islamists generally, and the Brotherhood specifically, are obviously nervous that the parliament they currently dominate will be dissolved and new elections required. Brotherhood leaders have made clear that it was a factor in their decision to break their pledge not to run a presidential candidate. And they have also set their sights on the SCC itself.

Earlier this year, I met with a Brotherhood legal adviser who said he was working on an SCC law. He seemed mainly focused on the way new justices would be appointed. Then, shortly before the presidential balloting began, a parliamentary committee took up a proposal that would go beyond tinkering with appointments; the draft considered by Islamist deputies would have completely gutted the SCC. Among other things, it would have allowed parliamentary supermajorities to overrule court judgments; it would have also barred the SCC from disbanding parliament as it had done in the past. While some of the mechanisms it suggested were borrowed from other constitutional democracies, the idea of placing them all in the same law was either a very heavy-handed threat or an audacious preemptive strike.

The parliamentarians seem to have backed off for now, but the sort of struggle this battle has exemplified—between a majoritarian parliament and an independent court—may be repeated in many different ways in the coming years.

The SCC, the Electoral Commission, and the Old Regime

While an arm-wrestling match between the SCC and the parliament is the most likely storm on the judicial horizon, there is a second possibility. The first round of presidential voting advanced two candidates: Mohamed Morsi of the Muslim Brotherhood and Ahmed Shafiq of the old regime. In order to block the late-surging Shafiq candidacy, the parliament raced through legislation of dubious constitutionality that barred certain old regime elements from eligibility.

The Presidential Election Commission listed Shafiq anyway, noting that the constitutionality of the law was being litigated. The attitude of the commission, based on the wording of the constitutional declaration, is that the matters on which it has decided cannot be appealed to the courts. So, if the SCC upholds the law, it is conceivable that the declared president will be a man the court’s ruling would suggest should never have been on the ballot. Even if Shafiq loses the race, if the SCC upholds the law, the clear implication is that he should never have been on the ballot and another figure should have been there in his place.

It seems unlikely, however, that the SCC will bring the actions of the Presidential Election Commission into question. The commission is headed by the retiring president of the SCC; it includes the incoming president as well, and the commission’s lead administrator is also from the SCC. When the commission declined to enforce the law, it did so with a bit of inside knowledge of the inclination of some of the SCC’s justices.

A knowledgeable foreign observer pointed out to me in a private communication that the SCC might also find itself poised to trip another land mine after the conviction of former president Mubarak and former interior minister Habib Adli. According to press accounts, the conviction was not based on any affirmative action on the part of either former official but by their inaction in a sphere in which they had command responsibility.

But such reasoning is constitutionally questionable in Egypt. In a landmark ruling for press freedom in the 1990s, the SCC struck down “vicarious liability” for newspaper editors and party heads that held them criminally responsible for libelous statements in their publications even if they had no direct role in the offending statement. Were a similar principle determined to be at stake in Egypt's “trial of the century,” the former president and his interior minister might see their convictions overturned. Of course, there is no indication that the SCC will receive the case or be in any hurry to issue a ruling. And if there is one lesson of the last year, it is that any judicial outcome is possible.