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The Supreme Constitutional Court in Post-Revolution Egypt --- by Nathan J. Brown

25th January, 2013
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While it has been at the center of political struggles over the past year--and has been an active participant and not merely a victim in those struggles--Egypt's Supreme Constitutional Court (SCC) issued a decision upholding a ban on diplomats marrying foreign citizens last November that attracted almost no attention but may indicate that the body's political centrality may be dramatically decreasing.

The SCC has found itself caricatured in a number of contradictory ways over its relatively short lifespan.  From 1969 (when it was founded as the Supreme Court) it was seen as a political court subservient to the executive with jurisprudence that largely escaped notice even inside the country; in the 1990s under the leadership of Awad al-Morr, it achieved an international reputation for bold activism.  In the 2000, it suddenly became seen as subservient again, and since 2011 has been routinely described by journalists as "Mubarak appointed" and by some political activists as dominated by fulul.

All of these portraits had some basis but also a fairly significant degree of exaggeration.  Today's justices, for instance, were all formally appointed by Mubarak that did not make them presidential selections; all sitting judges were nominated by their prospective colleagues already on the bench.  When the 2012 constitution was put into effect, the SCC's chief justice (selected by his own colleagues) and ten most senior justices retained their positions; most dated back to the body's 1990 heyday when the Court was at its boldest.

The series of caricatures is most accurate for the al-Morr years (as well as short periods and after) when the SCC really was a formidable body.  Al-Morr himself was a powerful presence, and he will likely be remembered as one of the most powerful judicial figures in a country where judges are acutely aware of their own stature.

The first time I met Awad al-Morr, the legendary chief justice of the 1990s, he launched a conversation by quizzing me: "What did the word "penumbra" mean?"  I was barely able to explain, but at least I knew why he was asking: he was referring to the US Supreme Court's 1965 decision finding a right to contraception not directly in the constitutional text but "within the penumbra of specific guarantees of the Bill of Rights."  And the question was not merely a theoretical one. Al-Morr was leading the SCC to plunge into penumbra in a manner that few constitutional courts in the world would have the nerve to explore.  In some years the SCC overturned more laws than it affirmed, but it was the nature of those laws and the reasoning of the decisions that attracted so much attention.  Al-Morr's SCC forced the dissolution of parliament, struck down authoritarian measures, and did so by speaking a language of human rights that was grounded in international norms and documents.

Oddly, however, the ruling that he spoke most proudly of was one that drew little attention--what he liked to call the "right to marry" case and it drew directly from his interest in penumbra.  Egyptian judges were barred from marrying foreign citizens. One ignored the rule and, judicially oriented as he was, brought the case to court. When the SCC reviewed the law, its justices struck it down. They did so not by mechanically applying a specific text, since there was nothing about whom judges could marry in the constitution. Instead they looked at the practices of other countries, jurisprudence of other courts, and international human rights instruments.  They used these to construct a broad reading of the country’s vague constitutional guarantees.

The approach did turn the Court into a political nuisance and over its last decade, the Mubarak regime used a variety of techniques to tame the body.  When he fell, the justices of the Court managed to persuade the interim military leaders to give them total control of the SCC appointment process, making it a self-perpetuating body.  

Much of the attention given the Court subsequently focused on major political battles—the dissolution of parliament, the demonstrations at the SCC building, the challenge to the Constituent Assembly.  And there slightly less dramatic battles as well that drew less attention—those over the wording of the constitutional provisions for the SCC or the way those provisions forced one of the Court’s most outspoken justices, Tahaney Al-Gibali, off the body.

But those noisy clashes distracted attention from a quiet shift in the Court’s jurisprudence. When it disbanded the parliament over the summer, its decision hearkened back to the Awad al-Morr years in both style of reasoning and substance.

But when the Court finally ruled on a long-slumbering case brought by a diplomat seeking to win the same right to marry foreigners that judges had achieved through the earlier ruling, it showed its new face. The ruling was solidly reasoned and argued—but also narrowly textual and cautious. The constitutional declaration then in force said nothing about any right to marry, so the diplomat could not claim his constitutional rights were being infringed.  

Why do I suspect that this narrow textualism is now likely to prevail?  The moments of the Court’s boldness in decisions or rhetoric over the past year have come when the institution itself felt threatened—by parliamentary legislation in the summer of 2012 or by demonstrators outside the building in the past couple months.  Fundamentally, however, it is a body that is politically exposed (and perhaps legally as well, since the newly elected parliament can make great changes in the SCC statute). And it is about to experience significant turnover as many of its most senior members reach the retirement age.  

Egyptian judges pride themselves for the independence, but many are extremely cautious as well. The SCC in the 1990s showed much independence and little caution, but the SCC of tomorrow will probably reverse those characteristics.

Nathan J. Brown is a professor of political science and international affairs at George Washington University and a nonresident senior associate at the Carnegie Endowment for International Peace.

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