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New Texts Out Now: Tamir Moustafa, الصراع على السلطة الدستورية: دور المحكمة الدستورية العليا في السياسة المصرية

Jadaliyya (J): What made you write this book?

TM: Research for this book began in 1997, when I was a Ph.D. student studying in Cairo.  I was fascinated by the fact that the Egyptian courts had become such an important forum for opposition activists to contest the results of the 1995 Maglis al-Shaab elections.  The newspapers were filled every day with coverage of cases that exposed election fraud and manipulation.  I was at a loss for understanding why an entrenched, authoritarian regime would allow the courts to even hear such cases.  And, at the time, there was very little research on the functions, dynamics, and politics of courts in authoritarian contexts.  Eventually, my study settled more specifically on the Egyptian Supreme Constitutional Court, which became the most important avenue for opposition activists to challenge the Mubarak regime.

J:  What particular topics, issues, and literatures does the book address?

TM: The question that animated my research was “Why would an entrenched authoritarian regime establish an independent constitutional court with the power of judicial review?”  In a country where the ruling regime exerts its influence on all facets of political and associational life, it granted the Supreme Constitutional Court (SCC) substantial autonomy from executive control.  The paradox is all the more intriguing when one reviews the surprisingly bold rulings that the SCC delivered in a variety of areas over the past quarter-century.  The Court consistently worked to curtail executive powers, expand freedom of expression, and shield groups active in civil society from state domination.  Moreover, it provided the most important avenue for opposition parties, human rights groups, and political activists of every stripe to credibly challenge the Egyptian government for the first time since the 1952 military coup.  Opposition parties used the SCC to contest electoral laws and strict constraints on political activity, human rights groups used the SCC to strengthen civil and human rights safeguards, leftists initiated litigation aimed at blocking the regime’s privatization program, and even Islamists mobilized through the SCC to challenge the secular underpinnings of the state.  In the process, the Supreme Constitutional Court stood at the center of the most heated debates concerning the political direction and even the fundamental identity of the Egyptian state. 

Scholars have generally regarded courts in authoritarian states as the pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents.  Yet in Egypt, a country with one of the most durable authoritarian regimes in the world, opposition activists found judicial institutions to be their frequent allies.  So, the questions that animated my book were: Why did Egypt’s authoritarian regime establish a constitutional court with almost complete independence from executive control in 1979?  Moreover, why did the regime not immediately reverse its reforms once the Supreme Constitutional Court began to challenge the executive branch in high-profile cases?  Similarly, why did Egypt’s rulers empower the Administrative Courts, an important avenue through which Egyptian citizens initiate (and win) lawsuits against state officials, all the way up to cabinet ministers and the President of the Republic himself? 

Conventional understandings of authoritarian political systems deny the possibility of judicial politics emerging from within authoritarian states.  Caricatures of authoritarian regimes tend to produce binary understandings of judicial politics across regime types.  One is led to believe that democracies enjoy judicial independence, but authoritarian states do not; that courts in democratic states preserve citizens’ rights, but courts in authoritarian states do not.  To be sure, most scholars of judicial politics have few illusions about the ambiguities of law and legal institutions in democratic settings.  But when constructed as a stark dichotomy, even one who is familiar with the significant shortcomings and institutionalized miscarriages of justice in U.S. courts might be tempted to indulge momentarily in a false sense of complacency.  A sober understanding of judicial politics requires scholars to question not only the “myth of rights” in democratic settings, but also our simplistic understandings of how judicial institutions function in authoritarian states.  The task is all the more important at this critical juncture in world history, when the distinction between authoritarian and democratic states are beginning to blur in many parts of the world.

Until now, however, the same nuanced understanding that comparative law scholars bring to bear on courts as contested sites in democratic polities has largely been missing from our knowledge of legal struggles in authoritarian polities. The assumption that democracy is a prerequisite for the emergence of judicial power is so completely taken for granted in the comparative law and political science literatures that research on judicial politics in one-party states is rare.  But interestingly, nearly every empirical study of courts in authoritarian polities reveals that the reality on the ground is far more complex than we typically imagine.  In many single-party states, vigorous and meaningful legal struggles take place daily, and courts provide the most important sites of state-society contention in the formal political arena.  This book brings courts center stage as an arena of political contention in one such authoritarian state where we would not intuitively expect to observe vigorous legal struggles.

Two years of dissertation fieldwork (1997/98, 2000/01) and many return fieldwork stints were devoted to understanding the unique dynamics of judicial politics in Mubarak’s Egypt.  I embedded myself in the fabric of the Egyptian legal/activist community, attending court hearings and legal aid workshops.  I conducted over 150 interviews with lawyers, judges, human rights activists, opposition activists, and government officials.  I engaged in close textual analysis of hundreds of Egyptian Constitutional Court rulings, conducted extensive archival research in court archives, and developed an extensive network of contacts within the Egyptian legal community.  All these endeavors provided me with the contextual knowledge and data to write the first English-language study of the Egyptian Constitutional Court and to develop a novel theoretical framework for understanding the functions of courts in authoritarian political systems more broadly.  

J: Who do you hope will read this book, and what sort of impact would you like it to have?

TM: With this Arabic translation through Tadween, I am excited to finally get this book into the hands of readers who work primarily in Arabic.  I had wanted to translate the book years ago, and now with the political tumult of 2011-2014, the book serves as a political history of judicial politics in the Mubarak era.  Nonetheless, the book is still an important resource for understanding the origins of judicial empowerment in authoritarian regimes more generally and as an important political history of the Egyptian Constitutional Court in particular.  The SCC proved to be a pivotal player in the upheavals of 2011-2014 and it will surely continue to play a dominant role in shaping state-society interaction in the years to come.  

J: What other projects are you working on now?

TM: I’m finishing another book, titled Constituting Religion: Islamic Law, Liberal Rights, and the State.  The book will be published in 2018 by Cambridge University Press.  

Excerpt from the Book:

By 1997, legal mobilization had unquestionably become the dominant strategy for human rights defenders because of the difficulty of creating a broad social movement. Gasser ‘Abd al-Raziq, director of the Center for Human Rights Legal Aid, explained that “in Egypt, where you have a relatively independent judiciary, the only way to promote reform is to have legal battles all the time. It’s the only way that we can act as a force for change.” A strong and independent judiciary became so central to the strategy of the human rights movement that human rights activists institutionalized support for judicial independence by founding the Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP).

Under the direction of former EOHR legal director, Nasser Amin, the ACIJLP set to work organizing conferences and workshops that brought together legal scholars, opposition party members, human rights activists, and important figures from the Lawyers’ Syndicate and Judges’ Association. The ACIJLP began to issue annual reports on the state of the judiciary and legal profession, documenting government harassment of lawyers, critiquing the regime’s sequestration of the Lawyers’ Syndicate, and exposing the regime’s interference in the normal functions of judicial institutions. Like other rights groups, the ACIJLP established ties with international human rights organizations including the Lawyers’ Committee for Human Rights and attempted to leverage international pressure on the Egyptian government.

By 1997, the leadership of CHRLA began to understand that constitutional challenges could induce systemic changes beyond the immediate case at hand. According to Gasser ‘Abd al-Raziq, this change in legal tactics came with the 1997 Supreme Constitutional Court ruling on article 195 of the Penal Code, a major case that CHRLA lawyers had helped prepare. CHRLA attorneys and the human rights movement in general were already following the activism of the SCC with considerable interest. ‘Abd al-Raziq recalled,

We were encouraged by [Chief Justice] ‘Awad al-Murr’s human rights language in both his formal rulings and in public statements. This encouraged us to have a dialogue with the Supreme Constitutional Court. CHRLA woke up to the idea that litigation in the SCC could allow us to actually change the laws and not just achieve justice in the immediate case at hand.

Beginning in late 1997, CHRLA initiated a campaign to systematically challenge repressive legislation in the SCC. CHRLA’s first target was law 35/1976, governing trade union elections. CHRLA initiated fifty cases in the administrative and civil courts, all with petitions to challenge the constitutionality of the law in the Supreme Constitutional Court. Ten of the fifty cases were successfully transferred and within months the SCC issued its first verdict of unconstitutionality against article 36 of the law. CHRLA also successfully advanced three cases to the SCC challenging sections of the penal code concerning newspaper publication offenses and three additional cases dealing with the social insurance law. CHRLA was further encouraged by activist judges in the regular judiciary who publicly encouraged groups in civil society to challenge the constitutionality of NDP legislation. Some judges went so far as to publicize their opinion of laws in opposition newspapers and to vow that if particular laws were challenged in their court, they would transfer the relevant constitutional question to the SCC without delay.

The ruling of unconstitutionality on law 35/1976 and an additional fifteen pending decisions in a three-year period represented a tremendous achievement given the slow speed of litigation in Egyptian courts and the relatively meager resources at the disposal of the human rights movement. Although the results may seem modest, the human rights community came to understand that constitutional litigation was perhaps the most effective way to challenge the regime. Until the CHRLA campaign, activists, opposition parties, and individuals had initiated cases in an ad hoc fashion, but CHRLA’s coordinated strategy of constitutional litigation was a significant innovation that prompted the rest of the human rights community to consider the possibility of constitutional litigation more seriously. A number of conferences and workshops were sponsored to examine the possibilities afforded by constitutional litigation, some of which brought together human rights associations and Supreme Constitutional Court justices.  Rights organizations were clearly eager to emulate CHRLA’s approach.

The Land Center for Human Rights set their sights on contesting the constitutionality of the land reform program and a variety of labor laws. By the close of 2001, the Land Center had successfully transferred two cases to the Supreme Constitutional Court. The first petition challenged the constitutionality of law 96/1992, which liberalized owner-tenant relations in the countryside. The other petition challenged the constitutionality of law 177/1967, which governed the activities of the Principal Bank for Agricultural Development and Credits. Like other human rights activists, lawyers at the Land Center said they were encouraged by the many bold SCC rulings on political issues. However, as noted earlier in this chapter, rights activists attempting to safeguard the last vestiges of Nasser-era economic rights for the poor were far more pessimistic about the possibility of successfully defending these rights through the SCC, despite the many socialist-oriented provisions in the Constitution.

Ironically, even as human rights groups were using litigation as their primary tool for challenging the regime, they themselves were without solid legal footing. The battle waged by the Egyptian Organization for Human Rights to gain legal status in the late 1980s continued throughout the 1991–1997 period. Having failed in its first attempt to challenge the Ministry of Social Affairs in the administrative court of first instance, the EOHR leadership launched a second attempt in the Supreme Administrative Court in 1991. By this time, the EOHR was using its international connections to leverage pressure on the Egyptian government. Representatives from the Lawyers’ Committee for Human Rights were conspicuously present at court hearings on EOHR registration, and the Lawyers’ Committee brought the case to the attention of the international human rights community. However, the case remained mired in litigation for over a decade despite ample legal talent and overwhelming international support. In the meantime, the EOHR carried out its functions without firm legal footing…

 Author's bio:

Tamir Moustafa is Professor of International Studies and Stephen Jarislowsky Chair at Simon Fraser University in Vancouver, Canada.  His research stands at the intersection of comparative law and society, religion and politics, and state-society relations, all with a regional focus on the Middle East and, more recently, Southeast Asia.

Moustafa’s first major project focused on the Egyptian Supreme Constitutional Court, and the politics of courts in authoritarian regimes more generally. This culminated in the publication of The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge University Press 2007) and Rule by Law: The Politics of Courts in Authoritarian Regimes (Cambridge University Press 2008, edited with Tom Ginsburg).

Moustafa has held visiting fellowships at UC Berkeley, Princeton University, and Harvard Law School and was named a Carnegie Scholar in 2007 for his work on Islamic law and liberal rights.

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