Reformist judges and former legislators say the behaviour of Egypt's judiciary has enabled the military to carry out a 'soft coup' that has upended Egypt's democratic transition.
Egypt courts the unknown in journey to democracy
CAIRO // In the past week Egypt's highest court has ruled that parliament should be dissolved and Ahmed Shafiq, Hosni Mubarak's last prime minister, should be allowed to run for president.
At the same time, it has notably stood aside as the country's interim military rulers granted themselves full legislative powers and control of appointments to the committee that will rewrite the country's constitution.
Reformist judges and former legislators say the behaviour of Egypt's judiciary has enabled the military to carry out a "soft coup" that has upended Egypt's democratic transition.
They argue that many of the country's judges - in particular, members of the Supreme Constitutional Court - have used their powers to preserve the prerogatives of Mubarak-era officials and institutions and to prevent the rise of a strong Islamist government.
The result, they say, is a judiciary that is not perceived by many Egyptians as an impartial referee in the swelling confrontation between Mr Shafiq and Mohammad Morsi, the Muslim Brotherhood candidate, both of whom are claiming victory in last weekend's run-off and accusing the other's campaign of vote fraud. With no institution trusted to serve as an honest broker, the venue to determine which candidate prevails may shift to the streets, they fear.
"The Supreme Constitutional Court is now an obvious example of how political groups of the old regime are using the judiciary as a tool for their gains," said Ahmed Mekky, the former vice president of the Court of Cassation.
"We now know that Egypt will not be able to achieve democracy unless the revolutionary powers are able to seize power [from the Supreme Council of the Armed Forces (Scaf)]."
Without a widely trusted judiciary, Egypt faces a perilous road ahead, said Robert Malley, Middle East and North Africa programme director for the International Crisis Group.
The situation in Egypt is like "Bush v Gore without a Supreme Court to break the logjam," said Mr Malley, referring to the controversial US presidential election in 2000 between George W Bush and Al Gore.
"There is a risk of duplicate institutions and political systems that ignore and confront each other: two constitutions, two ideas of parliament, two presidents ... leading at best to paralysis, and at worst to violence," he said.
At the centre of Egypt's court controversy is Farouk Sultan, who is both the head of the SCC and the Supreme Presidential Election Commission. He will step down on July 1, when he reaches mandatory retirement age.
When he was appointed by Mubarak in 2009 to head the country's highest court, there were already fears the president was trying to influence the court just two years before presidential elections then scheduled for 2011. The SCC oversees some of the country's most sensitive issues, such as the role of Islamic law and elections.
Mr Sultan spent much of his career in what legal scholars describe as "more sordid parts" of the Egyptian judicial system: the military and state security courts, which for decades deprived civilians of personal rights in the name of national security.
Since parliament first convened earlier this year, newly elected MPs have taken a highly confrontational approach to the SCC, attempting to strip it of some of its powers. All 19 members of the court were appointed by Mubarak from 1991 to 2010.
On Wednesday, Mahmoud El Khodeiri, the head of the former parliament's constitutional and legal committee and a reformist judge, criticised the SCC for ruling on the constitutionality of parliament because of "the conflict" between Mr Sultan and the parliament.
There are signs that Egypt's judiciary are taking an increasingly self-defensive stance in the country's rocky transition to a new democratic government, analysts said.
"Many justices seem to be as concerned and maybe more concerned about a possible tyranny of the majority than about the tyranny of the army," said Clark Lombardi, an associate professor of law at the University of Washington who has studied Egypt's courts.
Mr Lombardi said the ruling by the SCC on parliamentary elections, which said a third of the seats were unconstitutional, was "legally defensible", but "many, both outside and inside Egypt, think that they have impacts on political life that can't be justified".
The ruling paved the way for the Scaf to enlarge its powers in a new constitutional declaration last Sunday.
Egypt's new president has yet to be officially announced by Mr Sultan's commission.
Mr Morsi, a prominent member of the Muslim Brotherhood, has declared himself the winner and a monitoring run by a group of judges has confirmed the results.
The Muslim Brotherhood has alleged that the Scaf was using the country's ambiguous legal situation to unilaterally check the rise of elected leaders not sympathetic to the military's desire for control over its own affairs and budget.
The Brotherhood's claim is centred on the allegation that judges from the SCC consulted with the Scaf over the same parliamentary law that SCC later ruled unconstitutional.
"The law was written by Scaf under the consultation of the same judges of the constitutional court that made the ruling," said Amr Darrag, the secretary general of the Muslim Brotherhood's Freedom and Justice Party. "They were fully aware of the issues in the law, but kept it to have the ability to attack the parliament whenever they wanted."
The tactic of allowing groups to operate illegally is typical of the Egyptian government because it allows them to shut the group down whenever it is convenient, said Michele Dunne, the director of the Rafik Hariri Centre for the Middle East at the Washington DC-based Atlantic Council.
"If members of the judiciary advised the Scaf that this law was unconstitutional and they went through with it, then that is completely undemocratic," she said. "If the judiciary has to defend the country from the choice of voters, that's undemocratic."
Some prominent Egyptian lawyers, however, said the SCC was simply remaining impartial and staying within the bounds of its responsibility to rule on constitutionality.
Mona Zulfiqar, a human rights lawyer, said the fact that SCC had ruled that parliament should be dissolved twice before against the wishes of Mubarak in 1987 and 1990 was proof that the judges were independent.
Now, she said, the Muslim Brotherhood was trying to use Mubarak's tactic during those dissolutions to call for a nationwide referendum on the SCC's ruling.
"A referendum is not required by law, but Mubarak did that as a manner of resisting the power of the court judgement," she said. "That's exactly what the Muslim Brotherhood are arguing now. They are arguing Mubarak's point."