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
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.
What is T2?
T2 is a one-stop shop for reliable and enlightening information about the Arab uprisings, revolutions and their effects. It combines both original content by leading analysts, journalists and authoritative commentators, and curated content carefully selected from across the web to provide activists, researchers, observers and policy makers a catch-all source for the latest on the Arab revolutions and related issues through an interactive, virtual multimedia platform.
The T2 Story
Unattached to governments or political entities, Tahrir Squared is concerned with ‘multiplying the Tahrir Effect around the globe’: an Effect which reawakened civic consciousness and awareness. An Effect which led to neighbourhood protection committees, and created those scenes in Tahrir of different religions, creeds and backgrounds engaging, assisting, and protecting one another.
That Effect still lives inside those who believe in the ongoing revolutions that called for ‘bread, freedom, social justice and human dignity’. This website is a part of that broader initiative, seeking to provide people with the knowledge and information to assist and stimulate that process of reawakening, through the provision of reliable news reports, thoughtful commentary, and useful analysis.
T2 attracted a great deal of attention from various specialists, activists and writers on, and in, the Arab world. After identifying with its principles, work and aims, some were invited to become advisors to the website, acting in personal capacities.
Counselling on issues such as content, editorial direction and strategic initiatives, such advisors include Dr H.A. Hellyer , a writer and political analyst on the region; Motaz Attalla , an educational development specialist; Waleed Almusharaf, a doctoral researcher at the School of Oriental and African Studies at the University of London; and others.
The T2 community attracted a wonderful group of curators and interns, and fiends and supporters who make T2’s curated sections a source of the latest and most critical content from across the web.
T2’s exclusive content section benefits from the contributions of our diverse columnists, who carry responsibility for the opinions written in their work, with responsibility for the site remaining with T2’s founders. Initial contributions came from the likes of Nathan Brown of George Washington University, Mirette F. Mabrouk of the Economic Research Forum, Hani Sabra of Eurasia, Bassem Sabry, an Egyptian commentator, Rebecca Chiao of HarassMap and Khaled Elgindy of Brookings .
The final component in this community – and the ultimate one – is you. The reader, the activist, the analyst – in short, the user of this site. We hope your experience with T2 is a dynamic one, and that you join us in spreading the Tahrir Effect – in Egypt, in the Arab region, and beyond. The revolution continues.
If you would like to be added to Tahrir Squared's mailing list, please send a message to info AT tahrirsquared DOT com with 'subscribe' in the subject line.
**the picture featured on T2’s homepage was taken by Egyptian photojournalist, Jonathan Rashad on February 11, 2011 in Tahrir Square, Egypt. Rashad’s work can be viewed here: http://flickr.com/drumzo andjonathanrashad.500px.com. You can also follow him on twitter: @JonathanRashad
We'd like to explain to you how to use this site. It can be very simple, or it can be very complex – and that is all down to you, the user, and what you want the site to do for you.
Now, this is still a brand new site, so there may be a few glitches --- if you find any, please do not hesitate to email us at info AT tahrirsquared DOT com!
When you come onto the site, you can obviously just scroll down and see the content in front of you. That is easiest for many people – but this site can become your site.
You can personalize what you see in front of you to see only what you want to see.
You, the user, and the commander of your experience, can personalize this site according to five different filters:
If you want to see only Egypt-related content, for example, you scroll in the first row under ‘Arab world’ or ‘Africa’, and click on ‘Egypt’. That will limit your content to only Egypt related content. If you want content to be limited to ‘Arab world’ then you click on Arab world – and all Arab world related content will show up. When you want to clear these filters, you just press ‘reset’. And there you go.
If you want to see only content related to politics, for example, you click on ‘politics’ in the second row – and your site will only show you politics-related content. Maybe you want to see politics and also war-related content – you can click as many topics as you want. When you want to clear these filters, you just press ‘reset’.
Perhaps you only want to see videos? Then you scroll over ‘all content’ in the third row, and remove all other content icons. Maybe you want to see videos and tweets – so you remove all icons except for those two. When you want to clear these filters, you just press ‘reset’. The content icons are ‘articles’, ‘pictures’, ‘videos’, ‘initiatives’, and ‘Tweets’. Pick as many or as little as you want.
Maybe you want to sort according to date published on the site? Easy enough – just scroll over ‘date range’, and filter accordingly.
Finally, perhaps you only want to see original content written exclusively for Tahrir Squared, as opposed to original content as well as curated content. You have two ways to do this – you can either look just through the carousel, which is the top row of big boxes under the filters; or, you can click on ‘original’, and all the content will disappear from your site except for original content.
All of the above can be mixed and matched. Try it out – and see how this site is your site.
For general enquiries and feedback : info AT tahrirsquared DOT com.
For queries on our social media channels : socialmedia AT tahrirsquared DOT com.
For op-ed submissions and to get in touch with the editors : editors AT tahrirsquared DOT com.