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Al-Ahram Weekly Online   21 - 27 June 2012
Issue No. 1103
Published in Cairo by AL-AHRAM established in 1875

El-Sanhouri, take two

The physical attacks that took place on the head of the State Council after the July 1952 Revolution are reminiscent of the attacks on the Supreme Constitutional Court today, writes Ahmed El-Tonsi

The two recent verdicts issued by the Supreme Constitutional Court (SCC) have stirred much reaction across the newly evolving political landscape and even among global actors like the US, the UN and the EU. The dissolution of the recently elected parliament has been perceived by some commentators as a setback to the transition period, which itself has been the stage for all kinds of missteps, misfortunes and miscalculations. The impacts of the two rulings will definitely reshape the whole transition period, resetting its priorities as well as the timeline for its various milestones, including drafting the new constitution and holding elections for the legislature, which, for various reasons, have missed their due dates.

These dates can be rescheduled, despite the transition period being due to come to an end by 30 June. What cannot be fixed by any such date is the current trend, emerging among many politicians and surprisingly also among some lawyers, of attacking the judiciary, the only institution in the country to have been spared the tsunami of the 25 January Revolution.

Despite the legal precedent of 1990, when the SCC handed down a ruling leading to the dissolution of parliament for the very same reasons, many commentators, law professors and political analysts have been indulging in arcane debate, mostly based on limited knowledge of either politics or law, and sometimes of both, first about the verdicts and then about their impacts. For instance, the debate on the number of parliamentary seats affected by the SCC verdict has reflected how politicised and defective knowledge of legal procedures has become among some of the political elites.

Debates among lawyers are not uncommon, particularly when it comes to judicial verdicts that have political connotations, like the SCC's two verdicts that have fundamentally impacted on the executive and legislative powers of the state, itself still under construction since last year's revolution. At no time in its history has the judiciary become so pivotal to the whole state and particularly to its future as it did last Thursday when it handed down its verdicts.

A few hours after the SCC's decisions, the court became the target of attacks from nearly everyone who felt disadvantaged by its decisions. Politicised analysis of the rulings predominated, with the different political camps issuing mantras and throwing out references to precedents, historical information and their own personal views. The fierce attacks on the SCC and its independence, preceded by similar, even harsher attacks on the criminal court that tried former president Hosni Mubarak, have been reminiscent of the physical attacks carried out by the mob on Justice Abdel-Razzaq El-Sanhouri some years after the 1952 Revolution.

When some commentators describe the recent verdicts issued by the SCC as being political rulings rather than legal verdicts, this description is a form of aggression against the SCC and its status within the Egyptian judiciary. According to legal commentator Nathan Brown commenting on the SCC's rulings, these were "not a case of what Egyptians call 'telephone justice,'" in other words when a phone call from a senior official to a judge is used to decide a case.

The fact that the mob attacked a prominent judicial figure like al-Sanhouri was itself a crime. Today, the former MPs' attacks on the judiciary have been tending in the same direction of encroaching upon the independence of the judiciary. Moreover, these same former MPs have been endeavouring to pass a bill that would have almost deprived the SCC of its constitutional duty to decide the constitutionality of the laws. Deliberations on passing such a law were made without consulting the pertinent judicial bodies. Such ongoing attacks on the judiciary have not been less in terms of their implications than the physical attacks on al-Sanhouri in 1954. If anything, they have been worse.

In 1954, the mob that attacked El-Sanhouri did so in order to protest against his opinion that the army should return to barracks. In 2012, MPs from the now-dissolved People's Assembly attacked the judiciary, denouncing the legal verdicts of the SCC which ruled against the expectations, deliberately raised by politicised opinion, of some legislators. It has been claimed that the ruling Supreme Council of the Armed Forces (SCAF) has been seeking to endorse a scenario like the one in 1954, when the famous confrontation took place between the State Council under al-Sanhouri and the leaders of the 1952 Revolution. This time around, however, the attacks on the SCC have been endorsed by Egypt's largest party, itself bearing the name of justice (the Freedom and Justice Party).

Many people have claimed that the verdicts handed down by the SCC have returned the whole situation to square one. Even though square one might actually be a scenario to be wished for, since the power conflicts we have been seeing recently did not exist at this stage, when judicial verdicts issued by the courts, or fair-and-free elections, fail to adjudicate sociopolitical conflicts inside a given society or polity during a transition period, the question arises of what, if anything, can establish any form of stability.

States can exist without political parties or associations, but they cannot exist without the judiciary. In their famous work Problems of Democratic Transition and Consolidation, Juan J Linz and Alfred Stepan gave an apt summary of problems that can be seen in contemporary Egypt. "First, in a modern polity, free and authoritative elections cannot be held, winners cannot exercise the monopoly of legitimate force, and citizens cannot effectively have their rights protected by a rule of law unless a state exists. In some parts of the world, conflicts about the authority and domain of the polis and the identities and loyalties of the demos are so intense that no state exists. No state, no democracy."

The writer is a political analyst.

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