—Jill Goldenziel, Lecturer on Government and Social Studies, Harvard College and Lecturer in Law, Boston University School of Law
On Sunday’s episode of the riveting drama, “Constitutional Crisis in Egypt,” the Supreme Constitutional Court postponed its ruling on the legitimacy of the constituent assembly that hurriedly completed a draft of the new Egyptian Constitution. The judges claimed that protesters blocked safe entry to the courts, despite the presence of heavy security. Did the judges actually fear for their safety? Or did they have other reasons for delaying their decision? Stay tuned! Meanwhile, on an episode later this week another powerful character will step in to help battle the forces of tyranny: the administrative courts.
As I explain in my article, Veiled Political Questions, Islamic Dress, Constitutionalism and the Ascendance of Courts (forthcoming, American Journal of Comparative Law, January 2013), the administrative courts are far more independent than the Supreme Constitutional Court. The Egyptian court system, like the French system on which it was modeled, has parallel systems of ordinary and administrative courts. The administrative courts were created to handle disputes between private citizens and public entities, although, as I explain in my article, they have been liberal in their interpretation of the word “public.” The High Administrative Court – sometimes confusingly called the Supreme Administrative Court — sits atop Egypt’s administrative court system, while the Court of Cassation is the highest ordinary court. Unlike the Supreme Constitutional Court, which Mubarak packed with its cronies, judges on the administrative courts are selected by the judges themselves on the basis of merit and seniority. No direct appeal may be taken from the decisions of the High Administrative Court, although the two high courts and the executive can refer cases to the Supreme Constitutional Court.
Since the revolution, the administrative courts have continually asserted their independence. Last week’s strike by the judges of the High Administrative Court and Court of Cassation served to underscore their refusal to be cowed by Morsi. Since the revolution, the Supreme Constitutional Court has continually – and admittedly – supported military interests against growing Islamist power. The Administrative Courts, by contrast, have acted impartially, granting victories to both sides. In the immediate aftermath of the revolution, the Egyptian Administrative Courts swiftly moved to outlaw the vestiges of Mubarak’s National Democratic Party, and to approve new parties for participation in elections. Later, they also suspended Egypt’s first constitutional assembly and tried to push back Egypt’s first presidential elections. The administrative courts enjoy high esteem with the people of Egypt, who increasingly used them to file their grievances against Mubarak’s regime.
This week, the Administrative Courts will hear at least 12 lawsuits seeking to overturn Morsi’s November 22 decree placing himself above judicial review. Details about the most prominent suit, filed by the well-respected NGO the Egyptian Initiative for Personal Rights, can be found here.
If successful, these lawsuits would pave the way for more legal challenges to the legitimacy of the constituent assembly. They would also make it much easier for the Supreme Constitutional Court to dissolve the constituent assembly. Everyone knows that the Supreme Constitutional Court is beholden to the military and therefore represents a tyranny of its own. Backing by the administrative courts would bolster the legitimacy of any decision that would delay a new constitution.
Before and since the revolution, in the absence of a functioning parliament, the Egyptian judiciary has been the only branch of government able to check executive power – whether Mubarak’s or Morsi’s. The judiciary may be Egypt’s best hope against future tyranny. If the Supreme Constitutional Court is beholden to a non-democratic interest, Egypt’s High Administrative Court may still have a chance to make things right. Those who care about democracy should support it, along with the brave activists who continue to file the important cases that are moving democracy forward.