The deputy president of Egypt’s Supreme Constitutional Court, Tahani el-Gebali, disclosed that she had advised Egypt’s ruling generals how not to cede authority to the first freely elected Parliament. The Court then issued a decision that opened the door for the military to resolve the elected body and to usurp the constitution drafting process.
The still-unfolding military-judiciary concert in Egypt to decline transfer of power to elected civilians has infamous precedence in other polities, particularly Pakistan.
In 1958, Pakistan’s Supreme Court upheld the validity of the country’s the first coup d’etat. The decision, drafted by Chief Justice Mohammad Munir, used Kelsen’s theory of revolutionary legality to hold that a successful revolution becomes a law-creating fact whose legality is judged not by the annulled constitution but its own success. This military regime lasted for eleven years. Twenty years later, Munir disclosed in his autobiography that he had advised the generals about how to abrogate the constitution and had helped draft the proclamation of martial law.
In 1977, Pakistan’s Supreme Court validated yet another coup d’etat as a “constitutional deviation dictated by necessity.” The Constitution, was held to be in place and the military regime was permitted to take only such actions that are permitted by the Constitution. When the decision was released in the customary printed form, there was a hand-written insertion by Chief Justice Anwar ul Haq giving the military regime the authority to amend the Constitution at will. This military regime, that inaugurated the “Islamization” of laws, lasted eleven years.
A few months earlier while this case was being heard, the military had removed Chief Justice Yaqub Ali, deemed not sympathetic to the coup-makers, and had appointed Justice Haq.
Note that all judges of Egypt’s Supreme Constitutional Court were appointed by the Mubarak regime. This military-judiciary nexus in Egypt does not bode well for hopes triggered by the Arab Spring as it unfolded in Tahrir Square last year.