Edited by Martin Scheinin, Helle Krunke and Marina Aksenova
Chapter 10: The role of the judiciary in Egypt’s failed transition to democracy
AbstractAntoni Abat i Ninet, Professor of comparative constitutional law. This chapter 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 chapter deals with the role that judges and more precisely the Supreme Constitutional Court of Egypt (SCC) played in the transitional moment, i.e. in the aftermath of the authoritarian regime of Hosni Mubarak and up to the 2015’s judicial activity under the mandate of Abdelfatah al Sisi. 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 chapter explores the specific nature of the judiciary in Egypt in three different stages - 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 special emphasis is on political role that the SCC has been playing in Egypt since its creation in 1979. The chapter advocates for judicial restraint in transitional periods as a way to safeguard the transition and preserve some legal certainty and stability. The period of transition has a term of expiration and once the transition is over the judiciary may be an active guardian of constitutionalism and human rights.
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