After a year behind the scenes, the political tug-of-war between the judiciary and the Muslim Brotherhood regime is moving into the open. On Sunday the Supreme Constitutional Court (SCC) ruled the election of one third of Shura Council members unconstitutional but advised that the Shura Council continue its legislative role until the House of Representatives is elected. In another ruling on the same day, the SCC appeared to immunise the constitution by stating that the assembly that drafted it — as per the Constitutional Declaration of March 2011 — was not accountable to any authority while at the same time invalidating Law 79/2012 which set the criteria for selecting members of the constituent assembly that drafted the constitution. Egyptians with enough stamina to still follow the logarithms of political courtroom battles were left puzzled. Politicians on both sides of the secularist-Islamist divide interpreted the rulings from their own positions. President Mohamed Morsi's opponents saw them as evidence of the illegitimacy of his institutions. Morsi's supporters argued that the rulings cannot change the reality on the ground. Both accused the court of acting in a politicised manner. From the viewpoint of some of Morsi's critics the court delayed its ruling for too long, allowing changes on the ground — like the Shura Council's legislative monopoly and the constitution — to become entrenched. Meanwhile, Freedom and Justice Party spokesman Murad Ali questioned why the SCC only declared a third of contested Shura Council seats unconstitutional when it annulled the entire People's Assembly last June although the election law for both was the same. He concluded that this confirmed that “the judiciary is being dragged into political battles.” After months of legal disputes over cases of a political nature this week's rulings were guaranteed to meet with distrust from both sides. The muted battle between sections of the judiciary and the Muslim Brotherhood began when the SCC issued a ruling in June 2012 declaring a third of the elected People's Assembly unconstitutional but recommending the dissolution of the entire body. That recommendation was enforced by the ruling military days ahead of Morsi being announced the victor in the presidential election. Morsi's attempt to reconvene the dissolved parliament in July attracted condemnation from the SCC and sections of the judiciary. The president was forced to backtrack within days. Before doing so he issued several laws, including number 79 regulating the work of the 100-member assembly elected by parliament to draft a new constitution but having retracted his attempt to revive the dissolved parliament, and in the midst of the political earthquakes he created, Law 79 was shelved. The Constituent Assembly itself was dissolved in April 2012 based on a court order and another was elected in June — before parliament was dissolved — which ignored Law 79. According to the Constitutional Amendments of March 2011, approved by a majority vote in a public referendum, the elected parliament had the right to select the 100 member assembly mandated to draft a new constitution. The constitution was approved in a public referendum in December amid another political storm. It was defunct Law 79 which the SCC invalidated in its Sunday 2 June verdict, though the press and political class mistakenly assumed that the law regulating the constituent assembly was the one being questioned. That led many to the surreal conclusion that the constitution itself was unconstitutional. This widespread misunderstanding — which Minister of Parliamentary Affairs Hatem Bagato attempted to clarify in a Tuesday press conference — is the outcome of what former MP Mustafa Al-Naggar describes as a legal and political “muddle”. The lines separating the executive and judicial authorities have become increasingly blurred as case after case was filed before various courts to resolve political disputes. Most verdicts are viewed with suspicion when they serve the interests of one or other political camp. A glaring case in point is the SCC's ruling last week which granted the Armed Forces and conscripts the right to vote for the first time since 1957. The court was pre-viewing a draft of the political rights law while the Shura Council was still discussing it. While the SCC argued that to deprive members of the military and police force of their political rights contravened articles of the new constitution, critics viewed the verdict as an attempt by the courts to influence the results of future elections. They point out that the political rights law has been referred to the SCC for review at least four times since 2005. Each time the court ignored the established article banning the military and conscripts from voting. Few would dispute that the judiciary, like all other state institutions, includes holdovers from the Mubarak-era. Yet Morsi's attempts to introduce reforms have been controversial. In December he issued a constitutional declaration which, among other things, replaced Mubarak-appointed prosecutor-general Abdel-Meguid Mahmoud with Talaat Abdallah. In doing so Morsi ignored regulations cited in the new constitution which guaranteed a more independent process for the appointment of the prosecutor-general. More recently the Shura Council caused uproar when it began discussing a draft law for the judicial authority which sought to reduce the retirement age of judges from 70 to 60. The move would pension off a quarter of Egypt's 16,000 serving judges. Critics of the amendment claim it is a strategy by the Muslim Brotherhood dominated Shura Council to get back at judges who jailed scores of Islamists under Mubarak. Supporters of the bill argue that the retirement age was gradually increased from 60 to 70 by the former regime in an effort to prolong the terms of loyalists. That less controversial and more nuanced bills to reform the judiciary were presented to the dissolved parliament last year has left even reformist judges suspicious of the Shura Council's insistence on its amendments. Last week the Shura Council referred three amendments to its Constitutional and Legislative Affairs Committee. The Judges Club — an independent, elected body of judges — retaliated by going on strike. On Monday scores of judges converged outside the High Court in downtown Cairo where they were joined by a number of pro-Mubarak demonstrators. It is unclear how the SCC's ruling on the Shura Council's unconstitutionality will affect its role given that the court said the upper house should, in compliance with Article 230 of the constitution, continue its work until a lower house is elected. Amendments to the judicial authority law were already controversial before the SCC ruling. To pursue them now looks like a foolish exercise in political adventurism. Mohamed Al-Beltagui, Freedom and Justice Party leader, thinks otherwise. In a Facebook statement on Sunday he said that the SCC's recent rulings should serve as an incentive to speed up the process of amending the judicial authority law. In response, a judge connected with the SCC who spoke to Al-Ahram Weekly on condition of anonymity because he lacked authorisation to speak to the media, said that if the Shura Council had the power to amend the judicial authority law it would have done so already. “The Shura Council only wants to annoy judges. They are at war, and that is what all this is about.” And in the middle of the ongoing battle the one sure casualty is the long overdue quest for an independent judiciary.
