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The Military-Judiciary Nexus – Egypt and Beyond

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.

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Praetorian Polities and Free Elections

Canonical texts of comparative constitutional law seldom take into account the phenomenon of nullification of election results by extra-constitutional means in praetorian polities. The political drama unfolding today in Egypt is a case in point.

After having dissolved the first-ever freely elected parliament in the country, Egypt’s Supreme Military Council is now withholding the results of the first-ever free presidential election. On June 20th, a commentator in Cairo termed the present situation “the most dangerous 48 hours.” If the history of nullification of election results by the military is any guide, dangerous times in Egypt may extend far beyond 48 hours.

Pakistan (1971) and Algeria (1991) present ominous parallels to the current constitutional crisis in Egypt. In both cases the military refused to honor the results of free democratic elections, and in both cases the result was a bloody civil war with lasting consequences for the polity.

In the case of Pakistan, the first-ever free elections for a parliament and constituent assembly were held in December 1970, after twelve years of direct military rule. Awami League, a political party representing East Bengal, won an overwhelming majority of the seat in the new parliament. Instead of transferring power to the Awami League, the military dissolved the parliament and unleashed a military action in East Bengal. A civil war ensued that quickly graduated into a war between India and Pakistan. By December 1971, over one million Bengalis had been killed in what was widely recognized as genocide, Pakistan stood dismembered, and Bangladesh emerged as an independence state.

In the case of Algeria, the first free elections for a new parliament were held in December 1991. The Islamic Salvation Front (FIS), an Islamist political party gained a clear majority in the first round of voting. In a quick response, the military took over direct control of the government, cancelled the elections, banned FIS and arrested thousands of its members. A bloody civil war was the result, one that lasted for nearly twenty years and claimed over 200,000 lives.

Note that military juntas often cite political stability, social order, national integrity and similar high-sounding ideals as rationales for their refusal to recognize results of democratic elections. The real reason is to protect their power and privilege. Increasingly, their privilege includes a direct and lucrative role in the economic sphere. For example, the military in Egypt, Indonesia and Pakistan is directly engaged in industrial production, mining, banking, insurance, transportation, mining, real estate, and, would you believe, wedding halls. It may well be that more than anything else the Egyptian military is trying to protect its share of the economic pie.

A very productive study of the lucrative economic role of a military establishment is Ayesha Siddiqa, Military Inc.: Inside Pakistan’s Military Economy (London: Pluto Press, 2007).

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A Judicial Coup?

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.