The United States isn't the only country where judges aren't exactly above the political fray.
- By Katie CellaKatie Cella is an editorial researcher at Foreign Policy.
The court: 21 judges appointed by the president for life terms
Activism: Egypt’s Supreme Constitutional Court cemented its reputation as one of the world’s most active judiciaries on June 14 when it dissolved the country’s Islamist-controlled parliament, throwing the country’s electoral process for yet another loop. The decision followed a ruling in May that barred 10 candidates from the presidential race, including the Muslim Brotherhood’s top candidate, millionaire backroom fixer Khairat el-Shater.
The court ruled that a third of the parliament had been elected unconstitutionally, therefore delegitimizing the entire body. That order follows another controversial ruling on the same day that allowed former President Hosni Mubarak’s last prime minister, Ahmed Shafiq, to stay in the presidential race, which critics denounced as paving the way for the old regime to retain power.
Egypt’s Supreme Court bench is filled entirely with judges appointed by Mubarak, a group with an obvious interest in blocking the Muslim Brotherhood from taking power. The Brotherhood won nearly half of the parliamentary seats in last year’s legislative election, and other Islamists gained another 20 percent. Even though Muslim Brotherhood candidate Mohamed Morsi was announced as the winner of the election on Sunday, it’s still not clear how much authority he will be allowed by military authorities and presidential allies on the court. Critics around the world have joined the Brotherhood in chalking up the court’s rulings to a “soft military coup.” The ruling Supreme Council of the Armed Forces (SCAF) is supposed to turn over political leadership to a civilian administration on June 30, but with the court’s not-so-subtle attempts to keep the Brotherhood from wielding real clout, many fear that the SCAF will retain control indefinitely.
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The court: 17 justices appointed by the president. Mandatory retirement age is 65.
Activism: On June 19, the Supreme Court issued a ruling stating that Prime Minister Yousuf Raza Gilani had “ceased to be the prime minister of Pakistan.” Gilani had been held in contempt of court since refusing to prosecute President Asif Ali Zardari for corruption, as the court had directed two years ago.
Giliani’s sacking is another episode in the escalating power struggle between the military-backed Supreme Court and the civilian administration, which is controlled by Gilani and Zardari’s Pakistan People’s Party (PPP). The court and the president have been butting heads since 2009, when Zardari opposed the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry, who had been sacked by then President Pervez Musharraf. Zardari had only allowed Chaudhry to return to power to avoid massive protests led by Zardari’s rival, former Prime Minister Nawaz Sharif. The Supreme Court and Zardari’s government have been on a collision course ever since, and Gilani’s dismissal was yet another judicial attack on Zardari.
But the court didn’t stop with ousting the prime minister. When Zardari and PPP leaders selected former finance and health minister Makhdoom Shahabuddin to replace Gilani as prime minister, the court issued a warrant for his arrest for alleged production of an illegal drug. Just to be safe, the arrest warrant includes the ousted prime minister’s son, too. Although critics and activists have denounced the court’s actions as a coup, spokesmen from the PPP have told their supporters to stand down for the time being.
On June 25, the PPP’s second choice — Raja Pervaiz Ashraf — took over as prime minister. There’s a good chance Ashraf may also be on a collision course with the court, as he is currently facing allegations of corruption and bribe-taking from his time as water and power minister. His relationship with the court could become even more tense if he follows in his predecessor’s footsteps by refusing to investigate Zardari.
The court: 15 justices (Knesset determines number) appointed by a Judicial Selection Committee, a nine-member body consisting of Knesset representatives, supreme court justices, cabinet ministers, and representatives of the Israel Bar Association. All serve life terms.
Activism: A longstanding example of judicial activism, the Israeli Supreme Court recently delivered a controversial ruling that declared 30 Jewish apartments that had been built on privately held Palestinian property in the West Bank to be illegal. The court ordered the settlements be torn down by July 1, rejecting the state’s petition to the delay the demolition. The government is also currently petitioning the court to delay the razing of another West Bank settlement outpost that has been declared illegal. These cases are yet another phase of the ongoing battle between the Likud Party and the judiciary, which has often ruled in favor of Palestinians in the occupied territories.
The Israeli Supreme Court is one of the only judiciaries in the world that allows non-citizens to petition against acts of the state and the military. For example, in 2004 the court ruled in favor of Palestinian claimants who argued that a security barrier around North Jerusalem would disrupt the “fabric of life” for residents of the West Bank.
Israel has had a fairly active judiciary since its founding and as the country has no formal constitution, the court can decide on the legitimacy of almost any law the Knesset drafts. But the court’s penchant for intervening really took off under Aharon Barak, who served as its president from 1995 to 2006. Barak’s philosophy of activism — denounced by some as “judicial imperialism” — led to numerous confrontations with the Israeli government on issues of national security and Palestinian settlements. Prominent cases included the court’s 1999 ban on torture in terrorism interrogations and its prohibition of targeted assassinations in 2008 — although leaked documents suggested that the army ignored that ruling.
The activist tradition established under Barak has continued under his successors, but in the past year, the Likud-controlled Knesset has generated reams of bills seeking to limit the judiciary’s power. One stipulated that justice candidates had to be vetted by the entire Knesset; another proposed a mechanism that would enable the Knesset to restore laws the court strikes down. Although Netanyahu has often been stymied by the court’s decisions, he has blocked many of these votes — often going against his own party — and vowed to support the court’s independence.
The court: 31 judges appointed by the president for life terms
Activism: India’s Supreme Court routinely intervenes in national politics and in the daily lives of citizens. According to its own website, the court delves into “matters in which interest of the public at large is involved,” not only cases that pass through lower courts. This tendency has led to an explosion in public-interest litigation over the past decade.
India’s judiciary came out swinging in the 1980s in an attempt to restore public faith in the court after Prime Minister Indira Gandhi’s period of emergency rule. During that time, the court was widely perceived as the prime minister’s rubber stamp. Since then, the court has injected itself into virtually every area of public policy, going so far as to ban name-calling between castes (“In the modern age, nobody’s feelings should be hurt,” Chief Justice Markandey Katju remarked in that 2011 decision).
The “hyperactivist” Indian court has issued rulings on everything else from job creation to urban planning to the management of zoos. Often, such rulings are directives for the government to carry out, like distribute food aid or prosecute individuals the court deems corrupt. Some of the court’s interventions have provoked public outrage, like the 2006 ruling ordering the government to demolish nearly 45,000 illegal storefronts in New Delhi that owners had bribed local politicians to overlook.
Some experts — including former Indian Chief Justice J.S. Verma — have warned that the court’s micromanagement borders on “judicial tyranny,” and runs the risk of usurping authority from the other two branches of government as it seeks to create and shape policy. Other critics say that the court is already there, run by judges that another former chief justice criticized as “social engineers.”
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The court: 5 judges appointed by the emir for life terms
Activism: While the spotlight was on the Egyptian Supreme Court’s recent disbanding of parliament to prevent Islamist control, Kuwait’s Constitutional Court did almost exactly the same thing on June 20 in the politically deadlocked Gulf state. Following a somewhat convoluted chain of events, Emir Sabah al-Ahmed al-Sabah’s hand-picked court protected his grip on power by ruling one of his earlier decrees invalid.
Since the emir was reinstated following the Gulf War, Kuwait has been politically liberal — by Gulf standards — and the elected parliament regularly criticizes the government. But the system has become unworkable in recent years as the parliament, increasingly dominated by Islamist parties, has clashed with the cabinet picked by the emir. The emir has dissolved parliament four times since 2006 and his cabinet has resigned eight times.
In November 2011, the court blocked a parliamentary attempt to question Prime Minister Nasser al-Mohammed al-Sabah, a royal family member, over charges that he had paid bribes to pro-government MPs. Opposition groups, partly inspired by the events of the Arab Spring, stormed the parliament in protest and the emir dissolved parliament on Dec. 6, citing “deteriorating conditions,” and called snap elections.
In those elections, held Feb. 6, anti-government Islamist parties made their strongest showing ever, taking 34 of the 50 seats in the legislature. Following several more months of deadlock this year, the court has now nullified the February election on the grounds that the emir’s initial decrees dissolving parliament had been invalid and ordered that the previous parliament be reinstated. The opposition, not surprisingly, decried the decision, calling it a “coup against the constitution.”
The court is clearly willing to do whatever it takes to preserve the emir’s grip on power. But the fact that it can only do so by undermining his own decrees doesn’t bode well for the future of Kuwait’s tenuous political arrangement.