When we look into the past legal history of Egypt for heroes we have to be careful, writes Amr Shalakany* In the history of modern Egypt, the "Liberal Experiment" is a term often used to describe the three odd decades spanning the period 1923 to 1952. The years of this "experiment" are said to have certain defining features: from the risqué songs of the 1920s coffee-shop-cum-cabaret, to the scholarly and free university life of the 1930s, the artistic explosion of modern cinema, literature, theater and painting, and of course a free press bubbling with the dynamic political forces of mid-century Egypt. But what helps historians to label these decades a "Liberal Experiment" with any chronological coherence is the legal regime underpinning these years and formally committing Egypt's governing elite to the ideal of the "rule of law," an independent judiciary, and the protection of private property and freedom of expression in equal measure. The "Liberal Experiment" thus formally starts in 1923 with the adoption of a secular constitution of a parliamentary-democracy type, and it closes with the overthrowing of the same constitution following the 1952 military coup. Nostalgia for these three decades is understandable -- especially if you stand in the dwindling ranks of Egyptian liberals today. Instead of the morbidly conservative and worryingly murky vision of a future Egypt ruled by the Muslim Brotherhood, or the secular but economically statist and bureaucratically repressive alternative of Egypt under Nasser, the years of the Liberal Experiment provide a rhetorically powerful set of black and white images of a better time lost, when the country had a certain cosmopolitan tolerance to it, an intellectually daring environment and a politically interesting scene; a time when women were still demanding the right to vote as if voting really mattered in election results. This experience of nostalgia is far heavier if you're a member of Egypt's legal establishment today. The "Liberal Experiment" defines the years when the Faculty of Law at Cairo University was called the "Faculty of Ministers" and the absolute majority of Egypt's ruling elite happened to be lawyers. Those are storehouse years, full of anecdotes of "true men of the law," defenders of an independent judiciary and heroes of civil rights litigation, nationalist lawyers, judges and law professors who stood up to British colonialism and laid the foundations for a liberal normative order. In Egyptian legal folklore, the nostalgia pretty much ends in 1952 when Nasser's coup toppled the constitution of 1923 and ushered a revolutionary regime with instinctive military disdain for the rule of law. There is a distinct legal tone in much of our discourse on political reform today and I feel it comes with a reinvigorated nostalgia for the rule of law under the Liberal Experiment. From debates on amending the present constitution and redrafting emergency law, to the ongoing saga of the Judges' Club in its clash with the executive, liberal slogans on an independent judiciary and due-process guarantees are perhaps the most common denominator shared by the splintered groups of the Egyptian opposition. In the process, newspaper articles and regular columns often invoke the names of such pre-1952 legal luminaries as Abdel-Razzak Al-Sanhuri and Abdel-Aziz Fahmy in sincere yearning for a time when the rule of law was respected. For a committed liberal, this surge of legal nostalgia is possibly to your strategic advantage: invoking the names of past legal heroes may serve to bolster future legal reform agendas. But there is a danger as well. The men of the legal elite that presided over Egypt during the heady years of the Liberal Experiment provide the staple iconography of our law- respecting tales of yore, but they were also politicians and their personal biographies often tell of a career blurring the lines between law and ideology. If we invoke their names to commend the 1923 constitution they ruled under, or to support the 1954 draft constitution that many of them worked on writing, then we should also remember how these rule of law icons put political expediency above legal principles and regularly breached the constitution they claimed to defend. Let us start with Sanhuri, for I know of no bigger name in our national legal folklore than his. I grew up in an apartment facing the Maglis Al-Dawla -- the administrative court whose task is to strike down executive excesses from government officials -- and I cannot count the times in which I listened to the story of Sanhuri, the chief justice of this court, being physically attacked by a pro-Nasser mob during the constitutional crisis of March 1954. Sanhuri comes out as an undisputed hero of the rule of law who stood by General Naguib and demanded the army return to barracks and civilian rule resume under a democratic parliamentary republic. For this, the military junta had him beat up in the courtyard of the institution over which he presided with the police standing by in helpless detachment. From his hospital bed the following day, Sanhuri gave testimony to the public prosecutor investigating the case. He formally accused Nasser of engineering the attack and instructed his wife to "shut the door in his face" when Nasser later came to pay a hospital visit. Flouting the independence of the judiciary, Nasser's regime eventually removed Sanhuri from his post along with a number of his court colleagues -- an early chapter in the later massacre of the judiciary in 1969. Yet Sanhuri, who was brutally attacked in court 29 March 1954, is also the judge who used the same judicial bench 31 July 1952 to extend invaluable legal assistance to the military regime barely a week after the Free Officers' coup. More specifically, following the abdication of King Farouk 26 July 1952, the military regime had to deal with a Regents Council ruling the country on behalf of Farouk's infant son and crown prince. Under the 1923 constitution, the Regents should have pledged allegiance before parliament and then assumed their powers, but parliament was suspended and the army officers were loath to call it back for a swearing-in ceremony. Sanhuri resolved this constitutional crisis through an administrative court opinion issued 31 July 1952 in which he argued the Regents form a "temporary council" required to pledge allegiance before cabinet, not before parliament. The return of the Wafdist majority to its parliamentary seats was thus foreclosed and Sanhuri provided the military regime with a much-needed cover of constitutional legitimacy. Why did he do it? Opinions vary. It may have been a settling of old scores. Sanhuri was famous for bitter feuding with the Wafd Party when it was in power. Alternatively, he may have given up on the ability of the old liberal order to push through with necessary reforms and decided a creative bending of the constitution was a fair price to pay if the military could be trusted to implement reforms instead. His diaries certainly support this latter interpretation: He was in favour of land redistribution and thought only the military could push it through. I want to be clear: I am not arguing that Sanhuri who betrayed the constitution in 1952 deserves the smacking he got in 1954. This is not my point. Rather, I am merely counselling some caution regarding nostalgia for the "Liberal Experiment". If we are to remember Sanhuri as the victim of a lawless military and anoint him a hero of liberal legality, then we must also remember him setting aside the constitution from a judicial bench whose politically neutrality he was entrusted to preserve. While I fully support current efforts to secure a more independent judiciary, I also cringe when I hear these efforts supported by nostalgic stories of valiant legal heroes before 1952. Sanhuri may have been a great judge and jurist, but like much of the legal elite ruling Egypt before the military coup, Sanhuri was also a politician with ideological convictions that swayed his legal judgment. Some nervous cringing is also warranted when we support the Judges' Club in their current battle with the government, for we are standing by a judiciary that over a decade ago declared one of our great intellects an apostate and divorced him from his wife. * The writer is assistant professor of law at The American University in Cairo.
