The transitions that began in 2011 in Egypt and Tunisia have had nearly opposite effects on the status of courts in the two countries. Egypt's troubled transition has seen the country's courts, especially the Supreme Constitutional Court (SCC), rise to new levels of prominence. In contrast, the Tunisian transitional regime - considered the most stable of the Arab Spring - suspended the Constitutional Council for the duration of the transition. The status of the courts has important implications for the distribution of power within the transitional regime. In Egypt, power was divided between the SCC and several elected legislative, executive and constituent institutions. In Tunisia, power was concentrated in a single legislative-constituent Assembly unchecked by judicial review.
The focus of this study is on the origins of judicial power, but it will also touch on the problem of democratization. The Egyptian and Tunisian cases are a challenge to the view that strong courts and democratization always go hand in hand. The greater power of the Egyptian judiciary did not prevent the Egyptian transition from collapsing in the July 3 coup, and the absence of constitutional review in Tunisia did not result in a dictatorship of the National Assembly.
The rule of law upheld by an independent judiciary is an essential part of any consolidated democracy. Nevertheless, prior research has not adequately addressed the question of how the judiciary aids the democratic process or which forms of judicial power are conducive to democratization in the context of democratic transitions. This project assesses three alternative hypotheses to explain the divergent outcomes in Egypt and Tunisia. These hypotheses address the role of majoritarian and counter-majoritarian institutions and interests in each country; the different institutional structures of the constitutional court, which may create different opportunities for interaction between civil society and the courts; and the different relationships between the constitutional court and the ordinary judiciary. Archival work and interviews in Egypt and Tunisia will assess these explanations.
