On 23 October 2013, Professor Nathan Brown presented his upcoming article, Egypt: A Constitutional Court in an Unconstitutional Setting at the Constitutional Transitions & Global and Comparative Law Colloquium. Brown is a Professor of Political Science and International Affairs at George Washington University’s Elliott School of International Affairs and a leading scholar on Egypt’s Supreme Constitutional Court.
Brown begins his article by describing how constitutional courts are primarily adjudicative structures that render judgments in which the meaning of constitutional clauses are at issue. Therefore they would seem to be irrelevant in cases of constitutional vacuum, and at best reactive structures at times of constitutional transition. Yet because they have such a role in addressing fundamental questions, constitutional courts and their justices take on an aura that extends beyond the strictly adjudicative: they often serve as ultimate symbols of the state, as institutions that stand so far above or outside of the political process that they are the last resort for those searching for the locus of sovereignty. And paradoxically, they sometimes act not only above politics but also become enmeshed in political contests. In some transition settings, such as those of Hungary, South Africa, or Russia, the constitutional court was a critical actor even as every other element of politics was in flux—or rather because every other element of politics was in flux. The article explores the role of a particularly prominent constitutional court—the Supreme Constitutional Court of Egypt. Brown argues that no country better illustrates the potential role of a constitutional court in an unconstitutional setting than Egypt during the tumultuous events and constitutional chaos of the past two and one-half years.
During a well-attended colloquium session, Brown offered the audience his perspective on the Supreme Constitutional Court’s actions since the beginning of Egypt’s transition in 2011. The Court has played an active and often controversial role in Egyptian politics over the past two years. Brown noted that the Court’s decisions, while all based on legally justifiable grounds, have been unpredictable and inconsistent. Their record suggests that the Court, as much as any other political actor in Egypt, has been thrown off balance by the dramatic twists and turns of Egypt’s transition. The conversation also touched upon the role of judges during political transitions from authoritarianism towards democracy.
Brown was also a presenter at last year’s Constitutional Transitions Colloquium, where he discussed the constitutional status of Islam. More information about that presentation and a video recording of the event are available here.