Guest Post by Nathan Brown

Most Egyptian judicial observers were stunned earlier this month when President Husni Mubarak appointed Faruq Sultan as chief justice of the country’s Supreme Constitutional Court.

The Court, created in its current form in 1979, built a record in the 1980s and 1990s that earned it international attention for activism on several fronts, especially its willingness to take the vague human rights provisions of Egypt’s constitutional text and give them real meaning. The Court also took an assertive role in several hot political issues, such as the role of Islamic law and election administration.  Its boldness had limits—it simply avoided the question of the use of military courts to try civilians, a tool the regime continues to use (probably in violation of the constitution) against the Muslim Brotherhood.

The Court’s boldness stemmed in part from its autonomy—but that autonomy was built far more on tradition than on any sound legal footing. The Court retained a great deal of influence over its own membership and the president usually selected the Court’s most senior member as chief justice.  But in the current decade, the Court has been reined in.  The president has appointed a series of more reliable chief justices from outside the Court and Egypt’s boldest judicial actor has been tamed.  

Yet the most recent appointment still stunned observers.

It is not simply that the new chief justice has no background in constitutional issues.  Nor is it simply that he comes from a primary court and has a relatively modest background for such an august post.  What causes deepest concern is that his career has brought him through some of the more sordid parts of the Egyptian judicial apparatus—military courts, state security courts, the “court of ethics,” among other places.  Parts of Egypt’s judiciary have earned a reputation for professionalism and independence; other parts have distinguished themselves for their usefulness in working to legalize the whims of the country’s rulers.  His critics charge that Sultan’s career places him squarely within those latter parts.

But if the Supreme Constitutional Court has already lost its fangs, why add insult to injury by his appointment? Speculation here ties the appointment to the issue of presidential succession and the effort to anticipate any obstacles to a smooth, flawless, and uncontested transfer of power.  Among the chief justice’s constitutional duties is the oversight of presidential elections.  The new chief justice was born in October 1941; he will therefore reach retirement age in October 2011.  And the next presidential elections are scheduled for ... September 2011.

And the appointment, as much as it violates all kinds of norms and traditions, is perfectly legal. In the past few years, the Egyptian regime has worked hard to close any loophole in its legal and constitutional framework that would allow for any movement toward democratic opening. This appointment may have closed the last gap that had to be filled.