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Why would an entrenched authoritarian regime establish an independent constitutional court with the power of judicial review? This is one of the most intriguing questions for students of contemporary Egyptian politics. 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. [ABSTRACT FROM AUTHOR]

“Mr. President, what does freedom of expression mean to you?” Mubarak: “Freedom of expression means you can speak up, criticize, and write what you want, as long as it is not against the law.” By the early 1990s, the Supreme Constitutional Court had become a significant force in the Egyptian political system. In the economic sphere, it played a leading role in overturning Nasser-era nationalization laws, with an early willingness to push the pace and the extent of compensation much further than the government had intended. In the political sphere, the SCC also issued surprisingly strong rulings that twice forced the dissolution of the People's Assembly and a complete restructuring of the electoral system for local and national elections. Throughout the 1980s, the interests of civil associations, opposition parties, and the SCC began to converge, and a judicial support network began to take shape. These synergies were accelerated as the Court became more assertive under the leadership of Chief Justice ‘Awad al-Murr during the period from 1991 to 1997. Al-Murr led a new group of justices who were appointed to the SCC through its unique process of internal recruitment, replacing the justices who had been transferred from the regime-dominated Supreme Court in 1979. Under ‘Awad al-Murr, the SCC began to use international law to bolster its rulings, and it forged new institutional links with foreign jurists and international rights organizations. The SCC also made itself the focal point for reform efforts by continuing to open space for political activists. [ABSTRACT FROM AUTHOR]

Scholars and policymakers have placed a great deal of faith in judicial reform as a cure-all for the political and economic turmoil plaguing developing countries in Latin America, Asia, Africa, and the Middle East. Rule-of-law institutions have been charged with safeguarding human rights, spurring economic development, and even facilitating transitions to democracy. These expectations are grounded in our understanding of the way that legal institutions, markets, and the state developed in the West. Although dependency scholars and others have highlighted the radically different circumstances that “late-late” developing countries face, there is still a pervasive assumption that rule-of-law institutions, market economies, and democracy are self-reinforcing. Indeed, these relationships seem both intuitively sound and historically accurate. Some of the earliest writings in the social sciences by Adam Smith, Max Weber, David Ricardo, and others examined how independent and effective judicial institutions provided the stable property rights system necessary for long time horizons and vigorous private investment. Similarly, judicial institutions are seen as essential tools for providing the checks and balances necessary to curb arbitrary rule. In this view, arbitrary rule is inimical to democratic governance and viable market economies alike, making legal infrastructure essential not only to enforce the rules of the economic game, but to enforce the rules of the political game as well. Finally, we have long observed that economic growth and market economies are positively correlated with the social requisites for democracy. [ABSTRACT FROM AUTHOR]

The thought of judicial institutions in authoritarian states typically conjures up the image of state security courts with no standards of due process, handpicked judges lacking any degree of independence, and little hope for any measure of justice. We picture the bright lights on the defendant during his interrogation, or the young man from the film Midnight Express who is held in a Turkish prison without recourse to the law. In the academic literature, too, there is a strong assumption that authoritarian regimes either have no use for law and legal institutions or that law is applied instrumentally with courts acting as faithful agents of the regime. These assumptions are reflected in and reinforced by the new wave of comparative law scholarship that is focused almost exclusively on judicial politics in democratic or democratizing states. This chapter challenges the conventional wisdom that democracy is a necessary prerequisite for a judicialization of politics. The Egyptian case and comparisons with Brazil (1964–1985), Chile (1973–1990), China (1990–present), Indonesia (1986–1998), Mexico (1926–2000), the Philippines (1972–1986), Franco's Spain (1936–1975), and other countries illustrate why and how regimes use courts to institutionalize their rule. The cases highlight a series of pathologies common to many authoritarian states that courts are often deployed to ameliorate. In some cases, courts were empowered to encourage investment. In others, they were created to strengthen administrative discipline within the state's own bureaucratic machinery. Still other regimes designed courts to arbitrate between factions within the ruling coalition. [ABSTRACT FROM AUTHOR]