The role of the judiciary in Egypt's failed transition to democracy

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This essay illustrates the inter-institutional dynamics and the fundamental role a constitutional court can play in a transition, the challenges when the court is heavily involved or alternatively when it plays a more reserved role. The essay deals with the role that judges and more precisely the Supreme Constitutional Court (SCC) of Egypt played in the transitional moment, i.e. from the aftermath of authoritarian regime of Hosni Mubarak to the current judicial activity under the mandate of Abdelfatah al Sisi. The first section is an analysis of the conceptualization of transitions and transitology, the time interlude between two different political regimes. The section also provides a definition of post-revolutionary transitional moments as “constitutional moments” and the legal and political implications that this characterisation implies in terms of political governance and stability. The distinct nature of a transitional period is characterized by a legal and political uncertainty that places judges as guardians of constitutionalism and human rights in an uncharacteristic position. Because of this concrete casuistry, the dilemma between judicial activism and judicial restraint and the repercussion of judicial activity in transitional periods seem to be more transcendent. The second section explores the specific nature of the judiciary in Egypt in three different stages, based on a limited independence under Mubarak, an open conflict against Morsi and the Muslim Brotherhood and connivance and co-participation with Sisi´s legal and political repression. The third section explores the political role and activism that the SCC has been playing in Egypt since its creation in 1979, even though constitutional control was established since 1969 by the Supreme Court. In the conclusion, the essay advocates for judicial restraint in transitional periods as a way to safeguard the transition and preserve some legal certainty and stability. A temporal restraint that as the period of transition has a term of expiration, once the transition is over the judiciary may be an active guardian of constitutionalism and human rights.
Original languageEnglish
Title of host publicationJudges as Guardians of Constitutionalism and Human Rights
EditorsMartin Scheinin, Helle Krunke, Marina Aksenova
Number of pages23
Place of PublicationCheltenham, UK - Northampton, USA
PublisherEdward Elgar Publishing
Publication dateApr 2016
ISBN (Print)978 1 78536 585 0
ISBN (Electronic)978 1 78536 586 7
Publication statusPublished - Apr 2016
EventJudges as Guardians of Constitutionalism and Human Rights - European University Institute, Florence, Italy
Duration: 6 Nov 20147 Nov 2014


ConferenceJudges as Guardians of Constitutionalism and Human Rights
LocationEuropean University Institute

ID: 131829882