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Friday, June 15, 2012

Egyptian Court: Declaring a Legislature Unconstitutional

In 1803, the U.S. Supreme Court decided Madison v. Marbury, which established the authority of the court to declare a law to be unconstitutional, and thus invalid. A basic principle underlying this authority is that a constitution is on a level superior to a statute. An entity established in a constitution to interpret it can thus invalidate a law passed by another body established in the constitution. Invalidating that other body itself would be an entirely different matter, as it would involve one constitutional body dissolving another of equivalent grounding.

Accordingly, the constitutional court in Egypt overreached on June 14, 2012 in declaring the parliament dissolved. To treat a legislative body as akin to a law established by such a body evinces a category mistake with respect to level. Whereas a law is subject to decisions by governmental bodies, the latter themselves are subject to constitutional amendment rather than governmental action (including that of the judicial branch of government). General speaking, basic law such that creates governmental bodies (whether in constitutional language or not) trumps that which is created by those bodies. Put another way, a court must take the existence of the extant government institutions as a given.

By loose analogy, the Egyptian court was treating a sibling as if it were an offspring. Whereas brothers and sisters of the same generation are “on the same level,” their kids are on another level. One does not treat one’s brother and nephew similarly. So too, sibling governmental institutions should not treat each other as if they were that which they produce.

The judicial breach in Egypt was particularly suspect because the justices had been appointed by Mubarak, whose last prime minister was running for president against the candidate of the opposition party, which dominated the parliament as a result of a democratic election. Fittingly, that party disputed the court’s ruling and its authority to dissolve the legislature. Saad el Katatni, the Parliament’s majority leader, accused the military-led government of orchestrating the ruling. Although it was politically suspect and thus not credibly judicial, my point is that for the justices even to have thought that a court could dissolve another governmental body points to a basic ignorance concerning the difference between a constitution, governmental institutions, and laws.

A constitution (or basic law) creates and thus is superior to governmental bodies, which in turn make, execute or interpret (and thus are superior to) laws. That this basic hierarchy was somehow lost on the Egyptian justices suggests a basic incompetence that nullifies the court’s decision as that of a constitutional court. In other words, the decision can be interpreted as a coup rather than a judicial ruling merely on account of the ignorance. The error is that glaring, and yet somehow the jurists presented the ruling as legitimate nonetheless.

Faced with the real likelihood that the nescient democracy was being snuffed out by the partisan power-play made under judicial auspices, Egyptian citizens of all stripes had to decide whether to put a democratic Egypt above even partisan advantage. I suppose the matter of democracy in an autocratic context depends ultimately on how badly the body politic wants political self-determination, for the forces that are dominant in the status quo do not just go softly into the night. Rather, they have to be shown the door more than once, until they finally get the message.

See related essay: "Egypt's Generals: Boundary Issues"


David Kirkpatrick, “Forces Surround Parliament in Egypt,Escalating Tensions,” The New York Times, June 15, 2012.