It's considered bad form for one government to criticize another's judiciary. Courts are supposed to independently and dispassionately apply the law, without being influenced by the preferences and demands of politicians.
This constrains the Obama administration's responses to a ruling by Egypt's highest court today that had the effect of a coup d'etat, reversing democratic gains made since dictator Hosni Mubarak was deposed 15 months ago. This, however, should not prevent the U.S. from communicating clearly to the country's military leaders, who again reign supreme, that Egypt must quickly return to a democratic path or face condemnation and isolation.
In its ruling, the court dissolved the first freely elected parliament Egypt has ever had. It's easy to understand why the judges, all Mubarak appointees, don't like the new parliament. It's dominated by a new order: Islamists of the Muslim Brotherhood. So the court concocted a means to wish away the will of the people, deeming a provision of the 2011 election law illegal.
That provision actually emerged from a demand by the generals who took over from Mubarak, supposedly temporarily. They had insisted that half (later negotiated down to a third) of parliamentary seats be contested by independents. This was to ensure that Mubarak's cronies had good chances at the polls, since his party was banned. As is customary in a parliamentary system, the rest of the seats were allocated to political parties according to the share of votes they garnered.
Mubarak's cronies, however, were largely trounced in the elections. So now the high court says the rules were bad. According to its ruling, candidates who were members of political parties should not have been allowed to stand as independents (and thus crush Mubarak associates).
There is no appeal process. A day before the ruling, the generals reimposed martial law, saying they anticipated unrest over another court decision, affirming the candidacy in this weekend's presidential election of Mubarak's last prime minister, Ahmed Shafik, who faces a Muslim Brotherhood opponent. Fear is rampant in Egypt that the military authorities will fix the election for Shafik and take over the writing of a new constitution, which had been parliament's domain.
Publicly, Obama administration officials will have to stick to platitudes about the need for Egypt to pursue democracy. Privately, they should let the generals know they cannot afford to accept this tainted gift from the judiciary. The U.S. has committed billions of dollars to support a new, more progressive Egypt. It needs to see some progress.
(Lisa Beyer is a member of the Bloomberg View editorial board.)