Courts, politics and power

Courts, politics and power 07 November 2013

Courts do not only resolve disputes between private parties. Courts are also political actors, although they may not be very eager to agree to such a description.

In democracies, they have a crucial role to play in exercising checks and balances on the other branches of government. At times, this brings them very close to the political game itself, of power structures and competition for hegemony. This will not be any different for the courts of the future, but they would be well-advised to take into consideration what can be gained and what can be lost from political engagement.

Let us look at a few examples, limiting ourselves to discussing instances of court involvement in the political process itself (as opposed to the broader array of examples where courts are dealing with highly sensitive political issues, but not the power game itself).

Egypt

We can start with a very recent and extreme example which concerns the worrying developments in Egypt, with the increasing entanglement of the Supreme Constitutional Court Court with political institutions and processes. In the last two years, the Supreme Constitutional Court (many membership of which sworn by former President Mubarak) has once and again found itself in (or brought itself to) the eye of the political storm (for elaborated explanations see Prof Bassiouni's Chronicles here). It has been engaged in a range of highly sensitive political matters, from election matters, to various aspects of the process of drafting a new constitution for Egypt and so forth. In his short term in office, President Morsi has not been able to establish a working relationship with the Constitutional Court. It was reported that "despite his control over Egypt's political institutions Morsi was never able to control the judiciary" and the Muslim Brotherhood and the court repeatedly clashed. A new peak in terms of the Court's involvement in the unfolding political drama came when in July 2013, following the overthrow of President Morsi by the army, Adly Mansour, the President of the Supreme Constitutional Court, was sworn as Interim President. After his appointment, he quickly took steps (including the issuance of constitutional decrees) that in the eyes of some were necessary to stabilize the situation, while according to others were simply meant to sideline any remaining political influence of the Muslim Brothers, if not to signal a green light for an ultimate crackdown on them.

Israel

Moving a bit north on the globe and back on the timeline, let us now look at a less dramatic yet still very relevant example from Israel. Last December, a special panel of nine Justices of the Supreme Court decided to overturn a decision by the Central Elections Committee, to ban MK Haneen Zoabi from running in the parliamentary elections, which were due in January 2013. The Court's decision outraged certain (right wing) politicians, while receiving praise from others. It brought a (temporary) end to a heated debated which inevitably occurs each time elections are held. Pursuant to Israeli law, a party list (or a particular person therein) may be banned from running in the general election to the Parliament (Knesset) if certain conditions as stipulated by law come about: if a list acts directly or indirectly against the existence of the State of Israel as the state of the Jewish people or against its democratic nature; if it incites racism; or if it supports the armed struggle of an enemy state or a terrorist organization against the State of Israel. The authority to decide these matters is granted to the Central Elections Committee, a statutory body with a political composition (members come from existing parties, except for the Chair, has to be a member of the Supreme Court). However, the Committee's decisions are appealable to the Supreme Court, which is how decisions including the aforementioned example come into being.

Now, why is this example so interesting for current purposes? Responding to the said decision, the concerned MK, Haneen Zoabi, was quoted to have said: "This ruling proves again that the Central Elections Committee is a political body that abuses its authorities and allows politicians to bar their rivals for ideological reasons". This response points out the obvious reason for raising this example here: it raises fundamental questions as to who should be the final arbiter on such a sensitive political matter, which goes to guaranteeing the fairness of the political process itself. The answer given by Israeli law is that a political body should have the primary authority to handle this, but to mitigate the concerns this choice raises, the Supreme Court practically becomes the final arbiter. Possibly, however, there is a far more interesting insight here, which is hinted by the use of the word 'again' in the above quote from the MK. Over the past years, a rather peculiar dynamic has developed around this issue. In all the past election rounds (during a period of around 15 years), once and again the Central Elections Committee decided to ban certain Arab lists (or particular people in them), only to be revoked every time by the Supreme Court. This certainly gives room to speculate that what we witness here is a political power play, where every actor performs its 'assigned' role in a rather predictable way. Could it be that the politicians, while 'outraged' by the Court's interventions, are actually quite pleased by them, as they allow them to pay some sort of lip services to their electorates, without actually bearing the consequences of a rather extreme move like banning a party?

United States

Going across the Atlantic and a bit more than a decade back, the US Supreme Court's decision in Bush v Gore is certainly a relevant example of a court's direct involvement in a core political process. Following the very close presidential election in 2000, nationally, and the extremely close count of the Florida votes in particular, in this decision on the constitutionality of the recounts, the Supreme Court ordered (by a narrow 5 to 4 majority) a stop to the recount of votes in Florida, which were deemed to be in violation of US Constitution. In doing so, it effectively determined the outcome of the presidential elections, effectively declaring Bush to have been the winner, putting an end to the uncertainty, but not to the heated controversy.

In a recent interview (May 2013), retired Supreme Court judge Sandra Day O'Connor (who was on the bench making the Bush v Gore decision) retrospectively expressed doubt as to whether the US Supreme Court should have taken the case in the first place: "It took the case and decided it at the time when it was still a big election issue...Maybe the court should have said, 'We're not going to take it, goodbye.'" She went even further to say that the case stirred up the public and "gave the court a less-than perfect reputation." Indeed, the Court's involvement certainly raised issues pertaining to the separation of powers as well as to the impartiality of the court. Some doubted that it was wise for the US Supreme Court to have intervened in the first place. Others wondered whether the court was able to act impartially in the midst of such a deeply political matter. Referring more specifically to the narrow division (5-4) in the final decision, some argued that the Court’s failure to speak with one voice undermined its own authority, lending itself more vulnerable to the critique that judges were motivated by their own political biases. In fact, in the interview quoted above, Justice O'Connor actually went as far as stating that "probably the Supreme Court added to the problem at the end of the day."

Discussion and questions

The three examples briefly presented above clearly originate from very different situations, but they do have a common thread, namely: the direct impact that courts (can) exercise on core political processes. Are there lessons to be learned here, for the courts of the future?

In every political process there are different parties (whether individuals, parties or institutions) and it is only natural that disputes will arise. So it seems logical that when disputes like this arise, a neutral third party - a court - will be the final arbiter. Courts can also gain from such positioning - they can gain political power, and they can gain legitimacy, if they maintain (and are seen to maintain) a neutral position. However, there is a lot they can lose as well. What the Egypt example clearly shows is that while the idea behind a temporary appointment of the President of the Constitutional Court is to prevent a lacuna of legally valid power, what is happening in practice is that one side is 'using' the court to bolster a claim for legality - a strategy for legitimization (on this point, in general, see Tom Ginsburg's Rule By Law: The Politics of Courts in Authoritarian Regimes). At the same time, it is clear that the Court does not exactly act neutrally, and it is obvious (and predictable) on whose side it placed itself. So what we have here is one party to the dispute which works very closely with the court, while in the eyes of the other party, the legitimacy of the court has gone to a record low. The US example is far less extreme of course, but it can also show that when a court intervenes in such matters, it will likely face accusations for coming to the rescue of one of the parties, for political rather than legal reasons.

The example from Israel, at least under one possible interpretation, serves to show that the court is sometimes used by the political actors in a different way. Some see this as an example of a court that simply refuses to follow the path laid by Parliament or to see the signals it sends: an activist court that fails to respect the lines between the authorities. However, another interpretation enables us to notice that perhaps the reality here is that sometimes it is not un-easy for politicians to be seen as frustrated by a court interference (and revoke) of their decisions, while in fact what we have here is a game in which all parties play a more or less predictable role. It allows them to take a stance that can increase their popularity, knowing that the court will once again act as the 'responsible adult' around.

What other lessons can be learned from these and other examples? What do courts have to gain from a role in the political power play? And what might they lose? What are the main pitfalls? Are there any recipes for success?