by Tamir Moustafa. Cambridge and New York: Cambridge University Press, 2007. 338pp. Hardcover. $85.00/£45.00. ISBN: 9780521876049. eBook format. $68.00. ISBN: 9780511287282.
Reviewed by Antony T. Sullivan, President, Near East Support Services International, Ann Arbor, Michigan. Email: atsullivan4321 [at] comcast.net.
The revision of a doctoral dissertation accepted by the University of Washington, Professor Tamir Moustafa’s THE STRUGGLE FOR CONSTITUTIONAL POWER: LAW, POLITICS AND ECONOMIC DEVELOPMENT IN EGYPT is a model of outstanding scholarly research. This book deals with an important topic, and Moustafa does it justice. Not only does this volume constitute a comprehensive analysis of political and economic change in Egypt during the past 40 years, but it suggests new directions for scholarly research for students of comparative law and legal systems. No specialist in the fields specified can afford to ignore this important study.
Despite its quality, this volume cannot expect a wide readership. The subject will be of interest only to scholars working in the areas of comparative law, regime liberalization, and economic development. For general readers, the subject will seem arcane, and by its nature unexciting. For those interested in obtaining a more pragmatic understanding of Egyptian society today, a far easier and more informative read would be Geneive Abdo (2000).
Moustafa’s book focuses on the politics of the Egyptian Supreme Constitutional Court, the most important experiment in constitutionalism in the Arab world. The fundamental question posed by Moustafa concerns why an entrenched authoritarian regime would establish an independent constitutional court in 1979 with the power of judicial review. Put otherwise, he inquires why an “entrenched authoritarian regime with no viable political rivals [would] rebuild autonomous judicial institutions through which citizens could contest administrative decisions and challenge the constitutionality of regime legislation” (p.4). In this regard, he inquires why the regime did not immediately cancel the relative autonomy it had granted the Supreme Constitutional Court (SCC), as soon as the Court began to challenge the regime in high profile cases. This riddle is all the more interesting given the fact that the SCC worked to curtail executive power, expand freedom of expression, and shield groups active in civil society from regime domination. Moreover, the Court for years provided the most important avenue for opposition parties, human rights groups, and political activists of every stripe to challenge the Egyptian government. Islamists, in fact, mobilized through the SCC to challenge the secular underpinnings of the state. In sum, Egyptian opposition activists frequently found the highest judicial institution to be their frequent ally. Why did the Egyptian government allow such [*769] independence for approximately two decades?
A large part of the answer, according to Professor Moustafa, concerns the government’s desire to attract foreign investment, for which new and meaningful legal guarantees were necessary. Indeed, Anwar Sadat pinned the regime’s survival on attracting foreign investment, as well as investment from Egyptian nationals holding tens of billions of dollars in assets abroad. To that end, a clear rule of law was necessary, with ironclad guarantees the nationalization of property during the Nasser years would not be repeated. An independent Supreme Constitutional Court was deemed necessary to that end. For the regime, the real explanation for the granting it such a surprising amount of independence was that the state, anticipating that the Court would move in a liberal direction and make decisions that would surely cause severe economic pain, could then deflect protests about policy changes from the state and direct them toward the SCC. For that amount of political protection, the regime was willing to pay a substantial political price.
Moustafa argues that the SCC pursued a progressive political agenda by “selectively accommodating the regime’s core political and economic interests” (p.8) and thereby assuring that it might continue to pursue a liberal agenda. In fact, those interests included the priority of “overturning socialist-oriented legislation from the Nasser era” (p.8). The Egyptian SCC, he maintains, constitutes a case of “bounded activism” (p.8). Nevertheless, in the end, the state did finally move in the late 1990s to circumscribe the independence of the SCC, and today it is nothing more than a pale reflection of its former self.
In its essence, this book is an analysis of what Moustafa describes as the “dynamic complexity of judicial politics in authoritarian states” (p.9). He notes also that “many of the dysfunctions that plague the Egyptian state are common to other authoritarian states” (p.9). In Egypt as elsewhere, such courts “never advance the interests of authoritarian rulers in a straightforward manner. Rather, [they] inevitably serve as dual-use institutions, simultaneously consolidating the functions of the authoritarian state while paradoxically opening new avenues for activists to challenge state policy. These courts often become important focal points for state-society contention” (p.10). This observation challenges core assumptions in both political science and economics. Contrary to the presumption of most political science literature, courts in authoritarian polities are not mere pawns of the rulers. Rather, they are often active sites of state-society contention. Nevertheless, Moustafa maintains that the Egyptian case “illustrates why regimes sometimes short-circuit their own institutional creations, despite the devastating implications for national development” (p.11). For scholars working actively in comparative law and political systems, this book is simply a must read.
In all of this, perhaps the greatest advantage to the Egyptian government in permitting relative judicial [*770] independence, Moustafa emphasizes, was to escape blame for liberalization and privatization. He notes that “dozens of Supreme Constitutional Court rulings enabled the regime to overturn socialist-oriented politics without having to face direct opposition from social groups that were threatened by economic liberalization” (p.36). In fact, SCC rulings dismantled major parts of the social welfare system built by Nasser without the regime having to assume direct responsibility for those actions. These were no mean contributions, and its echoes are with us yet. Another major service that the SCC rendered to the state was to provide a “non-political” venue for settlement of particular cases involving religious and secular contention within Egyptian society. This enabled the state to avoid involvement in such sensitive matters. Such referral of sensitive cases to the judiciary, Moustafa argues, constitute examples of “judicial policymaking” (p.37), which has been characteristic of Egypt and other “populist, authoritarian states” (p.36).
Also, the relative independence of the SCC provided a venue where cases involving corruption might be adjudicated. This, in itself, provided a check on the rampant corruption that flourished in an Egyptian bureaucracy that previously lacked any sort of transparency. This, too, served the interests of the regime by increasing the “accountability of government bureaucrats,” enabling the state to “monitor and discipline administrators diverging from their state-proscribed mandates,” and promoting the “coordination of state policy” (p.229).
Above all, the semi-autonomous judiciary provides an opportunity to opposition groups and human rights groups to publicize their causes, on an almost no-lose basis.” Courts offer a unique space for the opposition to turn the state’s own institutions on itself,” Moustafa states. “Activists search for the bold judge who is willing to turn on his master and, like a saboteur, throw monkey wrenches into the state’s moving parts. When activists win in court, they . . . provide fodder for the opposition press. When they lose . . . they expose the gap between the regime’s rule-of law rhetoric and the narrow margins for achieving institutional remedy. Litigation is thus used to raise the salience of political issues even when activists are almost certain that they will not win their case” (p.43). Of course the fact is that, as agents of the state, judges generally administer the will of the regime, but, as Moustafa notes, “they never do so in an automatic fashion. Legal professionals everywhere are part of self-conscious communities, and in most developing countries they are acutely aware of their central role in political life” (p.44).
To assure general obedience of the courts on the most important issues to the regime, the state typically provides “institutional incentives that promote judicial self-restraint and ‘core compliance,’ Moustafa observes, “engineer fragmented political systems, constrain access to justice, and incapacitate judicial support networks” (p.46). The result is that reformist judges typically apply subtle pressure for political reform largely at the margins of political life. Only when the regime [*771] appears to be on its way out will reform-minded judges cease to bide their time and move more vigorously to challenge the state.
In the case of Egypt, it became obvious that the regime was there to stay. Not only that, but by the late 1990s the state began to move seriously to constrain and shrink judicial independence. Professor Moustafa describes the “fall” of the independence of the SCC after 1998, as the government weakened the judicial support network and packed the court with new justices. Foreign funding of human rights networks was limited, with one typical result being that such organizations as the Group for Democratic Development was closed, the Egyptian Organization for Human Rights emasculated, and the entire staff of the Ibn Khaldun Center put on trial. Intimidated, the SCC provided no remedies. The regime had made its point, and there could no longer be any doubt in anyone’s mind concerning where power really lay in Egyptian society. In conclusion, Moustafa notes that such an outcome is typical. “Authoritarian rulers constantly abort institutional reforms when those institutions are turned against them,” he notes, “and it is this political context that lies at the heart of the barriers to economic and political advancement throughout much of the developing world” (p.228).
This book stands at the intersection of political science, economics, and comparative law. It challenges conventional wisdom and provides new insights into perennial questions concerning the barriers to institutional development, economic growth, and democracy in the developing world. It includes a variety of useful tables, charts, and statistics, in addition to a comprehensive bibliography and an index. It is a volume that no research library can afford to be without.
Abdo, Geneive. 2000. NO GOD BUT GOD: THE TRIUMPH OF ISLAM. Oxford: Oxford University Press.
© Copyright 2007 by the author, Antony T. Sullivan.