The Supreme Constitutional Court of Egypt: The Limits of Liberal Political Science and CLS Analysis of Law Elsewhere

On January 25th 2011, following a popular uprising, president Hosni Mubarak of Egypt was forced to relinquish power after thirty years of continuous rule. The popular uprising came to be known as the Egyptian revolution of January 25th marking the first time in the modern history of Egypt an authoritarian ruler is forced out of power through the mobilization of Egyptian masses. The popular mobilization came at the heels of several years of "wildcat" workers' strikes affecting various sectors of the economy, public and private, as well as recurring demonstrations spearheaded by the youth of the Egyptian middle class demanding civil and political rights and protesting the intrusive rule of security. This Article discusses the role the Supreme Constitutional Court (SCC) of Egypt played in framing through its jurisprudence the economic and political picture in the two decades preceding the revolution and that arguably contributed to the precipitation of the events leading up to the revolution. The SCC itself was not immune to the intrusive reach of the reign of "security" of Mubarak's authoritarian rule even though the regime supported the court's autonomy in the early years of its adjudication. While the SCC facilitated the transition to "neoliberalism" as the Mubarak regime had hoped it would, it also took the regime by surprise both by its sometimes extreme libertarian approach to economic issues as well as its liberal(izing) jurisprudence on the political side, creating serious dilemmas for the regime. Gradually, the composition of the court was modified to ease off the bite of the jurisprudence the court developed in the 1990s. Egypt is now going through a constitutional transition. On March 19, 2011, Egyptians approved a number of constitutional amendments that would allow for the first post-Mubarak democratic elections to be held in November of 2011. In the aftermath of the elections, a commission will be formed to draft a new constitution commemorating the event of revolution. A referendum will take place to vote on the new constitution. The fate of the SCC with its current organizing law and membership(1) remain uncertain. What a constitutional court in a post-revolutionary context, in which political practice is free and ideologies "run wild" without the constraint of security, would look like remains to be seen. How much of the SCC's jurisprudence carries over to the new era also remains an open question. The Article was written before the revolution took place. I will preserve its pre-revolution time-voice and hope that the reader treats it as a piece on the "intellectual history" of law, judges, and jurisprudence in Egypt in the decades leading up to revolution.