Last week, the Supreme Constitutional Court of Egypt (SCCE) decided two cases that could have important implications for that country’s troubled transition to democracy.
In the first case, the SCCE invalidated a law that had declared members of the Hosni Mubarak regime ineligible for the presidency. That decision cleared the way for Ahmed Shafik—the last prime minister to serve under Mubarak—to compete in a runoff election against the Muslim Brotherhood candidate, Mohamed Morsi. Shafik appears to have lost the runoff to Morsi, but as this column goes to press, official election results have not yet been released. Even if Morsi is declared the winner, however, it may prove a pyrrhic victory, because the ruling military council has issued new laws weakening the office of the presidency in favor of itself.
In the second case, the SCCE invalidated the results of parliamentary elections that had concluded earlier in the year, on the ground that a third of the seats were supposed to be reserved for independent candidates, but had been contested by party-affiliated candidates instead. To execute that judgment, the military council ordered the parliament dissolved.
Critics have denounced the SCCE rulings and the military council’s actions as a kind of coup. As this column goes to press, protestors are returning to Tahrir Square.
Although it is far too soon to make any confident predictions about the fate of democracy in the world’s most populous Arab nation, last week’s rulings provide an object lesson in the complex relationship between courts and democratic institutions. In the rest of this column, I explore lessons the Egyptian crisis may hold for debates about the role of courts in promoting democracy.
The Global Triumph of Constitutional Review
In established democracies, there are longstanding disagreements about whether judicial review of legislation has gone too far in empowering judges. In the United States, for example, right-leaning critics of judicial review decry Supreme Court rulings on abortion, the death penalty, and gay rights as examples of liberal judges snatching power from representative institutions; meanwhile, left-leaning critics decry Court rulings on campaign finance, guns, and states’ rights to make the same point.
Judicial review’s defenders counter by pointing to the important role the Court has played in tempering political passions. They note that civil rights and free speech are areas in which the courts took a stand that was later vindicated.
It is difficult to imagine that the debate over the proper scope of judicial review could ever be definitively resolved as a purely theoretical matter. Where one ends up on the question will ultimately turn on what weights one assigns to competing values.
But even as the theoretical debate goes on, the world appears to have made up its mind pretty decisively in favor of constitutional review. Since the end of the Second World War, constitutional review has become a more-or-less standard feature of democratic governments worldwide. Today, in nearly every constitutional democracy, constitutional courts police jurisdictional boundary lines between political actors, and also protect the rights of minorities and individuals.
The Role of Constitutional Courts in Democratic Transitions
Citizens of mature democracies have grown so accustomed to thinking of constitutional courts as part of the basic architecture of democracy that they may not realize that these courts play a somewhat different role in countries that are just transitioning to democracy.
In an established democracy, the main function of a constitutional court is to keep the elected government within its bounds. Reduced to its bare essentials, the role of such courts is to guard against the tyranny of the majority.
In newly democratic countries, one must also worry about the tyranny of the majority. Egypt is a case in point. With Islamists having won both a majority of seats in parliament and the presidency, there is a real risk that women, Coptic Christians, and others who do not share the philosophy of the majority will see their basic freedoms curtailed. A liberal constitution with robust judicial enforcement of minority and individual rights could protect against such risks.
But there is a second concern in a new democracy, as well: that the elected government will lose power in a military coup or its equivalent. Algeria has been much on the minds of Egyptians and other observers lately because, twenty years ago, Algerian generals seized power rather than permitting an elected Islamist government to take office. Yet there is arguably a better, and more recent, analogy: Pakistan.
The Supreme Court of Pakistan was widely admired in 2007, when a lawyer-led protest overturned a decision by General Pervez Musharraf to fire the Chief Justice. The protests ultimately culminated in democratic elections. Yet, as a forthcoming paper by Drexel Law Professor Anil Kalhan explains, the Pakistan Supreme Court has had a long and checkered history of placing the interests of the Pakistani Army, ruling elites, and itself ahead of the Pakistani people. Before 2007, that court often legitimated military rule, and since then, it has sometimes taken actions that have weakened the elected parliament’s authority. Indeed, just this week, the Supreme Court of Pakistan ousted the sitting Prime Minister and declared the office retroactively vacant since April, precipitating a new political crisis.
In Egypt, as in Pakistan, the military is enmeshed in what Kalhan calls the “deep state”—the network of government and private interests affiliated with the military in which much of the real power of the nation resides. It is notable that even at the height of the revolution in Egypt last year, protestors insisted that they were not challenging the military as such, just the Mubarak regime. Although many protestors no doubt genuinely respected the military, it is likely that many others feared that the revolution was occurring only at the military’s sufferance. That impression has only grown stronger in the ensuing year, as a military council has overseen the transition.
Should the military permit Egyptian civilians to play a substantial role in drafting a new constitution, those civilians would be well-advised to think about how to enlist a constitutional court as an ally in the transition. The leading model in modern times is South Africa, where an interim constitution empowered the Constitutional Court to review the process of writing a final constitution.
That model could, in principle, be adapted to Egypt, but only with a wholesale change of personnel. The South African Constitutional Court was filled with longtime apartheid opponents who were committed to establishing constitutional democracy. By contrast, the SCCE is currently staffed by Mubarak holdovers who may regard the military and its allies as the best hope for Egypt and for themselves. Accordingly, enlisting the current SCCE in the process of constitution making would likely undermine rather than secure democracy.
Lessons From Egypt’s Current Experience That May Be Relevant Here at Home
The ongoing events in Egypt may also hold an important lesson about constitutional review here at home. We tend to regard judicial review as being most controversial when it invalidates the outputs of elected bodies. If the elected legislature chose to forbid abortion or to limit handguns (to choose examples that divide conservatives and liberals), then, critics say, the courts ought not to interfere with those outcomes based upon the open-ended language that appears in constitutions.
And indeed, for over a generation, one of the leading accounts of constitutional law has said that courts have an important role to play in regulating the “process” of democracy but that they should leave its substance alone. That view, set forth most forcefully in the late John Hart Ely’s 1980 book, Democracy and Distrust, continues to play a very important role in Supreme Court case law. In the approach that Ely crystalized, decisions like the 1964 one-person-one-vote ruling in Reynolds v. Sims should be regarded as the uncontroversial core of what the Court does.
Yet last week’s SCCE decisions should remind us that judicial rulings about the process of democracy can be every bit as undemocratic as unpopular rulings about the permissible output of elected bodies can be.
Seen from afar, the SCCE may look like a holdover of the Mubarak regime, in its efforts to decide who sits in the legislature and who holds the presidency. But if so, what does that say about our own Supreme Court’s rulings in such cases as Citizens United v. FEC and Bush v. Gore?
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Countries may follow a vaguely similar evolutionary path, the pace, trajectory and time lines are unique. Egypt would do well with a Kamal Atta Turk sort of Constitution that evolved over a Century in Turkey to put most of the Generals in prison at the behest of the Islamists