A Judicial Coup?
posted by Tayyab Mahmud
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.