A Judicial Coup?

by Tayyab Mahmud · June 18, 2012

On June 14, 2012, Egypt’s Supreme Constitutional Court dissolved the country’s first-ever democratically elected parliament and struck down a law passed by this parliament that barred senior officials of the Mubarak era from running for high office. Three days later, on the eve of the first-ever democratic presidential elections, Egypt’s shadowy military council proclaimed an interim constitution that grants the military broad veto powers over legislation, the national budget and foreign policy, and immunity from any civilian oversight. The military council also hand-picked a 100-member panel to draft a permanent constitution.

Popular forces in Egypt quickly dubbed the Court’s action a “judicial coup.” Indeed, in a single stroke the Court has erased nearly all political gains of the year-long popular resistance that made Arab Spring and Tahrir Square household words the world over. The Court also paved the way for usurpation of unbridled power by the military. By doing so, the Egyptian Court has added yet another chapter in the long history of judicial support for reactionary and counter-revolutionary forces throughout the world.

Courts in the Global South in particular have more often been instruments to thwart democratic aspirations than protectors of constitutional and human rights. Indeed, praetorian usurpers have repeatedly relied on the courts to secure legal validity and political legitimacy. The range of legal doctrines fashioned by the courts to accomplish this sordid task include “revolutionary legality,” “implied mandate,” “de facto organ,” and “state necessity.”

The Egyptian Court’s facilitation of last week’s coup d’etat brings into relief the long history of the judiciary as a reactionary and counter-revolutionary force. Both liberal revolutions of England, the U.S., and France and radical revolutions of Mexico and Russia had to contend with this tendency. The rise of human rights jurisprudence in some parts of the world in the twentieth century, and that too not an unidirectional one, should not blind us from the ever-present threat that courts in any setting can at any time put their weight behind reactionary political projects.

Patrick S. O'Donnell says:

June 18, 2012 at 7:39 pm

Recent developments in Egypt are quite disconcerting. It seems the revolutionary period is in abeyance. It is interesting to look back at the debates about the existing and possible future role for the military several months ago: some cautioning us not to take them at their word, that they were determined not to surrender power, etc.; others claiming they would cede to the “people’s wishes,” could live with a democracy, and so on. I was inclined, given their behavior during the Tahrir Square protests, to believe the latter argument: it seems all-to-clear that I was naively mistaken! Events in Egypt have and will continue to have, ripple effects and other important consequences throughout the Arab (and some of the Islamic) world. I think all of us should be paying very close attention.
Henry McGee says:

June 18, 2012 at 8:20 pm

Professor Mahmud’s insights confirm the hunches of observors of the situation in Egypt by others less familiar with the evolving situation than is he.
A.J. Sutter says:

June 18, 2012 at 9:40 pm

1. Unfortunately, it’s not only the Global South that suffers from this problem; while we don’t yet have any praetorian usurpers, the justices of the Supreme Court of Japan too have often been “instruments to thwart democratic aspirations [rather] than protectors of constitutional and human rights.” See, e.g., Shigeo Matsui’s recent monograph on Japan’s constitution.

2. Listening to the voices on the news of Egyptian women who voted against the Muslim Brotherhood candidate Morsi, I have to wonder if the word “democratic” is used a bit too generously in this post. That democracy is more than elections may be an old saw, but it’s nonetheless a good saw. I’m highly skeptical, to put it mildly, that basing policy on religious orthodoxy can ever be democratic (no free pass for Israel on this, either). The past two Egyptian elections may indicate that what TV portrayed as the relatively non-religious nature of the Tahrir Square protests wasn’t representative of the majority of the electorate. But democracy isn’t so simple as majority rule, in any case.
John McKay says:

June 18, 2012 at 11:21 pm

An excellent, though sad commentary on the misuse of judicial authority, or perhaps more accurately the failure of judicial independence. Left unsaid is the role of other governments who may or may not sanction such undemocratic gestures.