Egypt’s Muslim Brotherhood is planning to purge the judiciary and curb the powers of the constitutional court after it ruled on Sunday that the Shura council, the upper chamber currently acting serving as an interim parliament, was elected illegally. The court also ruled that the panel charged with drafting a new constitution last year was illegal.
The ruling Freedom and Justice party, the Brotherhood’s political wing, aims to “limit” the Supreme Constitutional Court’s powers and reduce “hurdles” it has imposed on the government, its vice president Islam Al-Iryan told Al-Hayat newspaper today.
“Naturally, (the presidency and the ruling Islamists) are not happy with yesterday’s ruling, but at least they got the results on the ground they wanted – which is that the Shura Council remains in place, despite its invalidation,” said analyst Emad El-Din Hussein.
“The ruling gave the opposition a strong card, it removed the (Islamists’) political legitimacy, which is likely to worry the Islamists and those in power,” he said.
The Islamists responded to the court ruling “with renewed calls for legislation that would force all judges over the age of 60 to retire,” Heba Saleh reports:
Such a move, loudly decried by many in the judiciary, would decimate the membership of the constitutional court and lead to about 3,000 judges being pensioned off, according to figures widely circulated in the press. Mohamed El Beltagy, a senior Muslim Brotherhood figure, commented on his Facebook page that constitutional court judges had “confirmed” by their decisions the “necessity and urgency” of laws to reform the judiciary and the court.
The court’s ruling should make the constitution null and void, says political analyst and publisher Hisham Kassem. “The fact that it went to a national referendum does not give it legitimacy if initially the formation of the committee which drafted the constitution was in violation with the constitution and in violation of law,” he told VOA: There was no immediate comment from the office of President Mohamed Morsi, who claimed extraordinary powers to see the constitution pushed through quickly, in part because of fears the court would disband parliament last year. The rulings are the latest in a series of challenges lobbed back and forth between the government and Egypt’s judiciary, which enjoyed a measure of respect under the old government as an independent body. Morsi administration officials accuse the court of being filled with holdovers of the old system trying to undermine Egypt’s political transition.
“We insist on the rule of law and due process even if the Brotherhood claimed that they are being politically targeted by the judiciary,” said Kassem. “This is a huge blow to the morale of the Muslim Brotherhood and Morsi, but the Muslim Brotherhood will not take this lightly,” Mustafa El-Labbad, director of the Cairo-based Al Sharq Center for Regional and Strategic Studies, told the Wall Street Journal:
Government critics saw the ruling as indicating the Brotherhood’s power was coming under scrutiny and could be rolled back.
“The Shura Council was a vulgar display of power for the Muslim Brotherhood. The real problem here is what this will mean for the political weight of the Brotherhood because the council they once controlled has been ruled void,” said Ziad Akl, senior analyst at Al Ahram Center for Political and Strategic Studies, a state think tank.
The ruling by Egypt’s highest court has created a dilemma for Mr. Morsi and the judges. “This is a big legal and constitutional mess, we now have become void of a valid, unanimously agreed-upon legal body that makes laws in Egypt,” Mr. Akl said.
The Brotherhood’s “heavy-handed” methods led to a crisis that could have been avoided, George Washington University professor Nathan Brown told the FT:
He points to “over-reach” by Mohamed Morsi, the Islamist president, when he issued a constitutional declaration in November which temporarily placed his decisions beyond judicial review. At one point hundreds of Islamist protesters were sent by the Brotherhood and ultraconservative Salafi groups to lay siege to the constitutional court building, to prevent the judges from issuing decisions that they feared would be unfavorable.
“I now fear that legitimate ideas [about judicial reform] would boil down to an us v them, or Islamists v judges,” he said. “I think you should wait [for a law on the judiciary] until there is an elected lower house of parliament. It would be a mistake for the Shura council to push through any judicial law relying on a narrow majority.”
It is unclear what practical implications the law will have on the government, the Project for Middle East Democracy notes:
Presiding Judge Maher al-Beheiry said that the constitution was not annulled, and that the Shura Council would not be disbanded until elections for the lower house could be held. President Morsi released a statement confirming that the two institutions would remain active, in line with the HCC ruling: ”The Shura Council will continue its role as a legislative power as stipulated by Article 230 of the constitution, which grants full legislative powers to the Shura Council until a House of Representatives is elected.”
Opposition leader Mohamed ElBaredei criticized the ruling, saying that it was “an expected result of a low-level understanding and political thuggery that has toppled the concept of legitimacy and the rule of law.” Professor Nathan Brown of George Washington University emphasized that the few immediate ramifications of the ruling meant that ”this is a moral blow but not a legal one.”
“Since the supreme constitutional court last year dissolved a newly elected parliament dominated by Islamists, the two sides have been in a struggle that threatens hopes of reforms to improve judicial independence and enhance the rule of law,” says Saleh.
“The fight is part of a much wider dispute between Islamists and liberals in the sharply polarised political environment of a country emerging from decades of authoritarian rule that undermined its institutions, including the judiciary,” she writes.
A draft law on the regulation of non-governmental organizations is also causing friction between the Islamists and civil society groups.
The proposed law “provides an atmosphere of freedom for [NGOs] and reduces government control over them,” the Ministry of Foreign Affairs claimed on Sunday in response to concerns expressed by the US State Department.
“The draft law still imposes significant government controls and restrictions on the activities and funding of civic groups,” US State Department spokesperson Jen Psaki said.
“The United States believes the proposed law is likely to impede Egyptians’ ability to form civic groups,” she said, which “are critical to advancing freedoms, supporting democracy, and acting as appropriate checks on the government”.
The draft law has drawn criticism domestically and internationally, notes Daily News Egypt:
Most recently a coalition of 40 civil society groups accused the Muslim Brotherhood of laying the groundwork to form a new police state by imposing restrictions on NGO functions and operations. The National Salvation Front, Egypt’s largest opposition bloc, also accused the Brotherhood of pushing through the draft law in an attempt to repress civil society.
High Representative of the EU’s Union for Foreign Affairs Security Policy and Vice President of the Commission Catherine Ashton described the draft law as “potentially constraining”. Ashton’s concerns reflect those of Human Rights Watch, Freedom House, Euro-Mediterranean Human Rights Network, Amnesty Internationaland the United Nations High Commissioner for Human Rights.
POMED is a grantee of the National Endowment for Democracy