JUDICIAL POWER IN TRANSITIONAL REGIMES: TUNISIA AND EGYPT SINCE THE ARAB SPRING A Dissertation Presented to the Faculty of the Graduate School Of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in Government By Frederick Harris Setzer, January 2017 © 2017 Frederick Harris Setzer ​ ​ ​ JUDICIAL POWER IN TRANSITIONAL REGIMES: TUNISIA AND EGYPT SINCE THE ARAB SPRING Frederick Harris Setzer, Ph.D. Cornell University, 2017 The dissertation examines the question of why political authorities assign different powers to courts during political transitions through the cases of Egypt and Tunisia following the 2011 uprisings. In Egypt, the Supreme Council of the Armed Forces allowed the Supreme Constitutional Court (SCC) to continue exercising its power of constitutional review throughout the transition. In Tunisia, the transitional Ben Achour Commission dissolved the Constitutional Council and suspended constitutional review for the duration of the transition. The dissertation argues that the formal powers of courts after 2011 were determined by a two step process that hinges on ideas about the judicial role: first, relations between the courts and the old regime produced a set of ideas about the judicial role; second, these ideas constrained the political authorities that designed the transitional institutions following the 2011 revolutions. The dissertation considers two alternative explanations. First, the powers of courts may have been determined by the interests of political authorities for or against majority rule. Second, courts may have drawn support from civil society. If courts have allies in civil society, they are more able to claim additional formal powers. The dissertation rejects these explanations based on evidence from interviews with judges, lawyers and political parties, and a study of judicial decisions and transitional documents. Instead, studies of the behavior of the Tunisian Administrative Tribunal, the Egyptian Supreme Constitutional court, and of the incorporation of the shariah into the two countries’ legal systems demonstrate the plausibility of the judicial role hypothesis. The dissertation contributes to a debate about how to conceive of democratic transitions. Against the voluntarist account presented by Philippe Schmitter and Guillermo O’Donnell, the dissertation argues that the institutional legacy of the judiciary provides a real constraint on decision makers during the transition.1 It also contributes to a debate about what role courts can play in democratization. Scholars of democratization, such as Juan Linz and Alfred Stepan, argue that strong courts aid democratization. Scholars of courts in authoritarianism, such as Nathan Brown, see courts as part of the regime.2 The dissertation emphasizes the particular characteristics of national legal systems that determine whether courts will act as holdovers from the old regime or as agents of democratization. Chapter 1: History and Institutional Choices The chapter introduces the legal history of Egypt and Tunisia and excludes explanations 1 Schmitter and O’Donnell (1978) ​ 2 Linz and Stepan (1996), Brown (2006) ​ based on an early divergence of the cases before the reform era of the 1970’s. Legal development followed similar trajectories in Tunisia and Egypt. Both countries began legal reforms during the era of pre-colonial state-building. Although Egypt was colonized by Britain and Tunisia by France, both countries retained a civil law system with strong French influences. Both countries were governed by leftist nationalist regimes in the middle of the twentieth century. An important divergence occurred in the reform era. Egyptian president Sadat (1970-1981) established the Supreme Constitutional Court as the centerpiece of his legal reforms and a guarantor of the liberal rights granted by the 1971 Constitution. Tunisia reached the same goal by establishing the Administrative Tribunal. A constitutional court occupied the center of Egypt’s legal system. In Tunisia, this role was filled by an administrative court with comparable political influence but no power of constitutional review. Chapter 2: Countermajoritarian Interests and Judicial Power The chapter examines implications of the countermajoritarian hypothesis for the design of the transitional institutions, the stances of political parties on the question of interim constitutional review, and the outcome of elections in both countries. The design of the transitional institutions is not fully countermajoritarian in Egypt or fully majoritarian in Tunisia. Electoral rules in Egypt amplified the vote share of the Muslim Brotherhood’s “Freedom and Justice Party”. Electoral rules in Tunisia limited the number of seats won by the Islamist party Ennahda. Parties from across the spectrum supported interim constitutional review in Egypt, and opposed it in Tunisia. All of these findings undermine the countermajoritarian hypothesis. They also highlight the constraints on the drafting bodies. Chapter 3: Civil Society and Judicial Power The civil society hypothesis argues that either civil society was weaker in Tunisia, or that it was unable to influence the transitional institutions, or it could not as effectively engage with the courts because of the form of constitutional review exercised by the Tunisian Constitutional Council. Civil society did engage with the courts in Tunisia, but exclusively through administrative review rather than through administrative review and constitutional review as in Egypt. Civil society was able to influence the design of the transitional institutions in Tunisia through representation in the Ben Achour Commission and through popular protest. In Egypt, civil society became increasingly co-opted by political forces over the course of the transition. The finding undermines the civil society hypothesis and sets the stage for the discussion of the Administrative Tribunal in Chapter 4. Chapter 4: The Administrative Tribunal and the Judicial Role The activity of the Tunisian Administrative Tribunal provides an illustration of the impact of ideas about the judicial role. The Administrative Tribunal was willing to rule against the Troika government. It was not willing to decide cases through which it might claim additional powers, including interim constitutional review. The Tribunal declined to decide the question of the Assembly’s mandate or to intervene in the summer 2013 crisis, when protesters called for the dissolution of the Assembly. The actions of the Tribunal are explained by ideas expressed by the judges. Moreover, these ideas reflect the experiences of the Tribunal during the Ben Ali era when the Tribunal maintained its independence by avoiding politicization. Chapter 5: The Incorporation of the Shariah and the Judicial Role in Egypt and Tunisia The chapter establishes the plausibility of a link between the constitutional status of shariah and the role of courts in transitional politics through a study of judicial politics in these two cases, especially since 2011. The context of the 2011 transitions gave courts in both countries an opportunity to claim greater powers, but the courts responded differently. The SCC’s role as an interpreter of Islamic law has increased its legitimacy and allowed it to rule against the government. Tunisia’s Personal Status Code reinforced a legal positivist ideology that favored judicial deference to the legislative and executive. Furthermore, the political imperative of protecting the Personal Status Code made secular opposition parties, and even judges, more skeptical of constitutional review. The incorporation of the shariah is an example of the mechanism linking judicial activity before 2011 to ideas about the judicial role to positions on the formal powers of courts after 2011. Chapter 6: Judicial Politics and the Supreme Constitutional Court of Egypt The chapter traces the process leading from judicial activity to ideas in Egypt. The Supreme Constitutional Court and the ordinary judiciary acted in tandem, even though, like the Tunisian judiciary, the Egyptian judiciary was initially suspicious of constitutional review. The activity of the SCC legitimized constitutional review in the eyes of ordinary judges. Judges on the SCC imported new constitutionalist ideas that modified the strict legal positivism of the Egyptian judiciary. The SCC’s rulings benefited the ordinary judiciary. The disputes surrounding the 2005 elections solidified an alliance between the ordinary judiciary and the SCC and legitimized the role of the judiciary as a political arbiter. Chapter 7: Institutional Choices, 2011-2014 The chapter outlines possible alternative designs for the courts and the broader transitional institutions and shows how considerations of the judicial role led to the rejection of these alternatives. The normative component of the judicial role influenced the drafting bodies directly, and the judicial role also acted as a guide for the drafting bodies' expectations about how courts would act during the transition. Extensive judicial powers were never an option in Tunisia because the courts would likely refuse to exercise them. Egyptian courts interpreted the formal powers granted to them by political authorities in a way that was compatible with their previous practices. At each turning point of the transition, considerations of the judicial role trumped considerations of the countermajoritarian impact of greater judicial powers. Conclusion The dissertation highlights an unusual feature