Over the summer a new chief justice was appointed to the Supreme Constitutional Court of Egypt (the SCC). The appointment of Farouk Sultan was controversial in Egypt. Justice Sultan does not have a distinguished judicial background and is widely thought to lack independence from the executive . The appointment raises all sorts of interesting questions about the rule of law in Egypt and, more broadly about the types of pressure that can lead a government that had once experimented with limited judicial independence to apparently give up entirely on the ideal.
Since Egypt’s SCC is not best known court in the world, let me give some background on the Court, explain why the appointment of Justice Sultan has been so controversial and then muse upon the possible lessons to be drawn from this appointment.
Comparative constitutional scholars over the past five years have become interested in the phenomenon of judicial review in autocratic countries. (This is different from the study of judicial review in new democracies—a phenomenon that has in recent years also come to be examined by numerous scholars) The phenomenon of judicial review in an authoritarian state raises all sorts of interesting questions. Why would an autocratic leader or party create a court with the power to overturn legislation that the autocrat, in its wisdom, has decided to impose? One possible answer is that the autocrat does not expect the court to have any independence or power. But, in fact, in some countries, the courts actually do seem to have acted in an independent manner and have overturned laws that the autocrats, in their wisdom, enacted. Some of these courts seemed genuinely to annoy the executives who had caused them to be created. So what explains the executive’s willingness to create courts that had the power to rebel? What caused these courts actually to do so? And what have been the longer-term ramifications of their decision to cross the executive?
Those interested in these questions have often looked at the history of Egypt’s SCC for insight. A constitutional court was created in the 1970s by an autocratic government. Its structure was revised in 1980. In the 1980s and 90s, it began to embark on a path of liberal activism which was unwelcome to the executive. Over the past 10 years, it has come under sustained (and quite effective) pressure from Egypt’s authoritarian executive and the executive dominated legislature. The executive response to unwanted action by the Court ranged from the subtle (pressure on NGOs that generated the litigation that allowed the Court to act) to the not-so-subtle (appointing loyal outsiders to replace the retiring Chief Justice and then dramatically increasing the size of the court to pack it with unaggressive jurists). With these changes, the Court fairly quickly ceased to be an independent and activist institution. The SCC came to be a reliable ally of the executive and has suffered a diminution of prestige.
A number of scholars have done important work on the Court, and they have proposed slightly different answers to the question of why it was created, how it came for a time to exercise some independence and why the government has been so effective in supressing the Court. The debate that has emerged has been very productive and has helped us better understand the dynamics that may be at work when authoritarians create courts with a degree of judicial independence. Nathan Brown and Tamir Moustafa have done particularly thorough work, both in monographs and in articles, some of which are available on the Web. (For those who don’t have the time to engage with these bodies of work as completely as they deserve, I recently published an article in the Journal of Comparative Law. In it, I summarize some of the conclusions that they have drawn about the Court and add my own views about the Court’s creation and career.)
One question that has divided observers is whether the Court might reemerge as a liberal and independent voice. Those who harbored hopes it might have suggested out that the government’s attempts to rein in the SCC has had real costs for the Egyptian executive. I, for example, have argued that one of the reasons the Court was allowed occasionally to act independently was because it provided legitimacy for all government acts that the court did not strike down—and the overwhelming majority of acts fell into this category. Assuming this is correct, the decision to suppress the Court thus could only be made if the executive felt that the costs of judicial independence outweighed the benefits to legitimacy that the Court could provide. But the Egyptian government’s own behavior suggests that it has been concerned at least to some degree about the costs of suppression. Most important, even as it suppressed the SCC, Egypt continued to pay lip service to the ideal of judicial independence. I have nursed the hope that the pressures that led the Egyptian government publicly to speak in support of judicial independence might lead that government actually to rebuild it.
But the appointment of Farouk Sultan suggests that the government is no longer interested even in paying serious lip service to the ideal of an independent constitutional court. Nathan Brown is one of the few Western analysts to comment on the appointment of Farouk Sultan to be Chief Justice of the SCC. His post on the Abu Aardvark blog can be found at
It is worth a read. Brown explains clearly why Justice Sultan is viewed by so many Egyptians as wholly lacking in independence. The executive must know that a court led by Sultan will invariably be viewed with distrust. Yet the executive still went ahead and appointed him. Why would he do this? The Court has not made much, if any, trouble for the administration over the past five years. Why would President Mubarak wreak further damage on an institution that could provide him with some much-needed legitimacy?
As Brown notes in his post, the best possible explanation for the Sultan appointment lies in the fact that the Supreme Constitutional Court of Egypt is not only the sole judicial organ with the power of constitutional review. Its Chief Justice is also empowered to oversee presidential elections. Furthermore,the court might be the final arbiter of electoral disputes that involve constitutional claims. Egypt is scheduled soon to hold an election that will probably result in a transition of power from the long-ruling President Hosni Mubarak to somebody else. That somebody else may quite possibly be Mubarak’s son Gamal. It may be someone else. But the election is in any case likely to be controversial and, thus, potentially dangerous to the current elites. As recent elections in Iran and Afghanistan have shown us, elections can be a remarkable opportunity for an opposition to embarrass a ruling party, and the potential for embarrassment becomes much greater if, as in Afghanistan, the bodies entrusted with investigating evidence of electoral fraud are even marginally independent. Even barring a reversal of reported results, tribunals with a conscience can cast doubt on the degree to which the government is supported and, of course, on its behavior. President Mubarak apparently wants at the head of the Supreme Constitutional Court a sympathetic figure. Justice Sultan is surely not the only such figure available. But as Brown notes, Sultan may be the only one who will reach mandatory retirement age a few months after the elections. This means that if Sultan is Chief Justice, Mubarak’s successor will be able to appoint a new Chief Justice fully loyal to him–something that should enhance the stability of the fledgling regime.
If this is correct, and most Egyptians think it is, then the need to have a sympathetic figure overseeing the upcoming elections has driven the Egyptian executive to appoint a Chief Justice who is likely to weaken further the reputation and prestige of an already beleaguered Supreme Constitutional Court. In the process, the current government has forgone the opportunity to rebuild its own legitimacy and, one assumes, that of its successor.
This is interesting, if a bit depressing. It raises intriguing questions about constitutional design. As a matter of constitutional design is it a poor idea in autocracies or new democracies to make a stand-alone constitutional court the final arbiter of election disputes? Many courts have this responsibility, and perhaps it is a dangerous one. Whatever pressures a government may have to interfere with the operation of an independent court will be magnified if the court plays a dispositive role in electoral politics—with potentially sad consequences.