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Judicial Militancy Within Red Lines

Egypt’s Supreme Constitutional Court is preparing for a series of sensitive cases.

Published on November 2, 2016

When I first visited Egypt’s Supreme Constitutional Court (SCC) a quarter of a century ago, it was tucked away in dusty offices in the High Court building in downtown Cairo. The only bar to entering it was figuring out the location. It is now ensconced in its own quite imposing and well-guarded neo-Pharaonic building on the banks of the Nile.

Its political prominence has increased apace. In the 1980s and 1990s, the court was behind a series of legal defeats for the regime, which deprived it of some of the tools it had used for managing Egyptian politics and economics, such as manipulating electoral rules and vote counting, restricting non-governmental organizations (NGOs), and even introducing a sales tax. In all such cases, the court’s decisions were not threatening, but they were extremely annoying to the regime, forcing it to adjust and find new tools to replace those removed from its grip.

These verdicts were made possible by the SCC’s strong autonomy, one anchored both in law and habit, by which the court had considerable discretion over the appointment of new justices. In the 2000s, however, the Egyptian presidency used its hitherto dormant (but legally valid) authority over appointments to produce a more pliant body. The SCC had no choice but to accept its fate and in the last decade of President Hosni Mubarak’s rule the body was relatively silent. But with Mubarak’s fall in 2011, it was able to convince the military command—then exercising the powers of the presidency—to give it total autonomy and insulate it from the democratic mechanisms that were expected to emerge in the wake of the uprising.

SCC rulings had a tremendous influence over political struggles in the two years after the removal of Mubarak—most notably by disbanding the 2012 parliament and blocking the Muslim Brotherhood from using that body to remake the Egyptian legal order. There was no clearer sign that the court viewed itself as part of a state apparatus desperately fending off what it regarded as chaos and Islamist intrusion in governing.

For its part, the Muslim Brotherhood harassed the SCC and planned to remake it into a more compliant institution. Before that happened, however, the court was saved by President Mohammed Morsi’s overthrow and the replacement of the constitution that the Brotherhood had overseen by one which the judiciary in general—and the SCC specifically—had a hand in drafting. SCC chief justice Adli Mansour served as interim president, supervising the process.

Mansour has now retired and he has been replaced by Abdel Wahhab Abdel Raziq, a longtime court veteran who helped draft some of the opinions during the court’s activist period. The law granting the SCC autonomy has survived all the tumult of the past five years. The court has not suffered the purges of judges sympathetic to the opposition that have occurred elsewhere. (Under the Muslim Brotherhood several judges were forced off the court, including the Brotherhood’s arch nemesis, Tahani al-Gibali. Significantly, the post-2013 court has not called her back to the bench even though it could do so if it wished.)

Since the SCC issues verdicts without any indication of the vote—and without dissenting opinions—it is impossible to ascertain the inclinations of individual justices. But the overall tenor of the SCC’s orientation is reasonably clear: It is generally part of the post-2013 political order, but it is also very protective of its own autonomy and willing to strike out on its own—as it did when it overturned a decree that its own chief justice had issued as acting president, this after he had returned to the court.

There are a number of sensitive cases now before the SCC, including the law on demonstrations that has been used to eliminate Egypt’s vibrant protest culture and the dispute over ceding control of two border islands to Saudi Arabia. And there are likely more coming. The law by which the current parliament was elected can be challenged on numerous grounds, and the SCC has yet to find a parliamentary election law constitutionally flawless. Laws on NGOs and the press are also under preparation, and they will likely be subject to constitutional challenge. The country’s current constitution is fairly similar to those that preceded it, but it contains significant changes in some sensitive clauses, meaning that legislation written under previous constitutions might be deemed unconstitutional under the current one.

Egypt’s current constitution was written to reflect the interests of key state actors, including the military, the judiciary, and the police. For instance, it effectively protects the role of military courts in trying civilians, something its 1971 predecessor left under a constitutional cloud. But some of its clauses appear to have been somewhat carelessly drafted and others might pack surprises when placed in the hands of the SCC.

How might the SCC handle politically sensitive cases?

Over the past five years of observing Egyptian politics, I have written one piece that I think stands out for its prescience, “Judicial Turbulence Ahead in Egypt, Fasten Your Seatbelts.” It highlighted the way in which the judiciary was about to play a powerful role in Egypt’s post-uprising political struggle. But I also wrote a piece I’d very much like to forget, “The Sisi Spring.” In it, I anticipated—quite wrongly—that, like Sadat and Mubarak, the newly elected president would use a tactical liberalization to weed out high officials who might challenge him or evade his control.

That second piece was wrong because Sisi has acted not as a figure seeking to dominate all state bodies, but instead as the head of a consortium of state institutions, each of which has some autonomy and precious little accountability. The presidency under his leadership is not as feckless as it was under Morsi, and generally gets what it wants. But it seems much less able to work the levers of state on a daily basis than did the presidents who served before the 2011 uprising.

Therefore, I expect the SCC to return gradually to offering a blend of activist and pliant stances. Its relative autonomy might come more into play as the memory of 2013 recedes and allows the court to strike down some laws that have been a part of regime functioning. But unlike the 1990s, it will likely be more protective of the existing order than it was in its heyday. The SCC can time its judgments so that they do not come at inconvenient moments for the regime. It can also release advisory opinions from its Commissioners Body (which prepares cases for the full court) to give advance warning. And the court has other tools to make its adverse rulings a bit more amenable to regime adjustments.

What is clear is that the SCC is likely to receive a string of sensitive cases. It should be expected that the court will deal the regime defeats but also some victories. The former will be issued in a way that do not threaten core regime interests—ambitious courts often learn that those who stick out their necks too far are liable to get their heads chopped off. And its jurisprudence stems from a view that supports the role of the Egyptian state in general. Therefore it is likely to deploy the tools it has to craft opinions and time judgments in less menacing ways.

In Egypt today, every political dispute will likely be a constitutional one and the SCC will be a constant if inconsistent voice.

Carnegie does not take institutional positions on public policy issues; the views represented herein are those of the author(s) and do not necessarily reflect the views of Carnegie, its staff, or its trustees.