The Supreme Constitutional Court
The Supreme Constitutional Court has been placed in a powerful position as guardian, final arbiter, and effective definer of the vaguely defined principles the new constitution must embody.
The justices of the SCC have been referred to in press accounts as “Mubarak appointees,” something that is accurate but sometimes misleading. There is no doubt that the current court was fully formed under the old regime, but its autonomy varied considerably over time and it was never a direct creature of the president. It is true that its reputation and record for independent action has declined over the past decade. I generally share Tamir Moustafa’s views that the court has become politically weaker in recent years.
The current composition of the court is a bit mixed. The SCC chief justice was a direct presidential appointee, although he actually recused himself from the case concerning the disputed candidacy of Ahmed Shafiq, the last prime minister appointed by Hosni Mubarak. He thus can hardly be held responsible for the ruling that allowed Shafiq to run for president despite former ties to the Mubarak regime. The other justices were generally nominated by the court itself and then approved by the president. That has made for some variety and independence in the past. My general impression is that the current court is actually a very diverse body.
The law governing the SCC was changed by the SCAF last summer to allow the court to select its own president from among the three most senior current members. The effect was to insulate the SCC from all other actors though also perhaps to inculcate however subtly a sense that the SCAF (and not the parliament) was the best protector of the judiciary. The new chief justice—a judge on the SCC since 1991—will take over next month.
What justices on the SCC tend to share, despite diverse orientations, is a strong sense of mission to the law and abstract constitutional principles. In a sense, their attitude is analogous to that of the SCAF, though the comparison might offend some of them: senior judges, like senior generals, see themselves as guardians of the public interest and the interests of the state, and therefore as above politics, democratic mechanisms, and accountability. The parliament that was seated in January had offended the SCC’s sensibilities quite deeply by criticizing the chief justice and by proposing legislation that would have deprived the court of some of its authority and autonomy.
It is not quite clear how the court will interpret the vague principles placed in its care for the constitution-drafting process. While many Egyptian judicial authorities work to hew closely to formalistic interpretations of legal texts, the SCC, given its mandate, has shown some comfort departing from narrow textualism and undertaking expansive readings of general constitutional principles. However, the task here is so novel that there is no sure indication of how it would use its authority if called upon.
Nathan Brown is a non-resident senior associate in the Middle East Program of the Carnegie Endowment for International Peace, and a professor of political science and international affairs at George Washington University.
