Draft Constitutional Amendments: On the Shura Council and Judicial Powers

As the fifty-member constitutional committee continues to discuss amendments, there are several changes made by the ten-member legal committee tasked with drafting the amendments that are worth noting, many of which could have a detrimental effect on the parliament as well as on the judiciary. In regard to the Shura Council, the appointment of the public prosecutor and the selection of Supreme Constitutional Court judges, the 2012 Constitution was, in fact, better.

From the thirty years between its 1980 inception and the January 2011 revolution, the Shura Council—Egypt’s upper house of Parliament—has been a major subject of debate. One source of controversy is the fact that the Shura Council, though established as a second house of parliament, has no actual legislative powers. Instead, it only debates the few draft bills the president decides to refer to it. Furthermore, even if the Shura Council debates a law, its approval or rejection has no practical effect; instead all weight is given to the People’s Assembly, as the legislative house with jurisdiction over all matters. After the January 2011 revolution, and given discussions about drafting a new constitution, many called for the abolishment of the Shura Council in favor of a unicameral parliament. This is the proposal the ten-member legal expert committee decided upon, whereby the Shura Council is eliminated and the Egyptian parliament is composed of a single house—the People’s Assembly .

There are a number of arguments that can be made for abolishing the Shura Council, but they don’t sufficiently justify relying solely on the House of Representatives. The most significant argument made is that the Shura Council has no real powers, nor a legislative role. An appropriate solution, at an opportune time with the amendment of the constitution underway, would be to grant the Shura Council actual legislative powers, similar to those that the People’s Assembly enjoys.

Another argument made is that Egypt is a unified state ( unlike federal states), for which one house of parliament would be adequate, in contrast to federalist nations like the United States and Germany, where the parliament is composed of two houses. This principle, however, is not a given; France, for example, is a unified state, and despite this the French parliament is composed of two houses: the Senate and the National Assembly.

The most important question in this context is the following: is it useful for the Egyptian Parliament to be composed of two houses rather than one? The answer is that it is necessary to introduce a real two-house system into Egypt’s new constitution, and for the Shura Council to remain intact. The coming years represent one of the most important periods in Egypt’s modern history, from both a political and legislative standpoint. Much legislation in Egypt needs to be fundamentally changed and amended, and altering the constitution will require many legal changes in order to suit the amendments.

These steps will require a parliament with two houses, in order to undertake legislative tasks with composure and attention, until the legislative updating process is complete and the complex legal crises Egypt is facing are mitigated. The presence of the Shura Council—with full powers—alongside the People’s Assembly will ensure that discussions are more diverse, and will ensure a more successful and effective legislative process. The diversity would come from the fact that Shura Council elections are usually held every six years, in contrast to the House of Representatives, giving the body a degree of stability. Moreover,  the Shura Council is the upper house and usually  includes people with vast experience, whether technically, politically, or in other fields.

In regards to the judicial branch, the ten-member legal expert committee has implemented a number of important amendments, of which two are worth noting. In Article 162, the committee decided that the prosecutor general “is appointed by presidential decree, after the Supreme Judicial Council’s approval.” The 2012 Constitution, on the other hand, stipulated the public prosecutor “is appointed by presidential decree, based on the Supreme Judicial Council’s selection.”

In practice, this means that the draft produced by the legal expert committee gives the president the right to ‘choose’ (or appoint) the prosecutor general, as was the case in the 1971 Constitution. In contrast, the 2012 Constitution was a step in the right direction, decreeing that the Supreme Judicial Council selects the prosecutor general, and that the president’s authority lies only in issuing the appointment decree. The reasons behind this change are unclear, and have revived the debate of the appointment of the prosecutor general. For quite some time, the request to appoint the public prosecutor by the Supreme Judicial Council, not the president was one of the most important demands for achieving a judiciary that is independent from the executive branch—particularly given how important the position of prosecutor general is. The importance of this position originates from the critical effect it has on protecting Egyptian security, from a social and criminal side. Indeed, it is because the Egyptian prosecutor general is part of the judiciary, and not an institution under the executive branch, as is the case in the United States and France, for example. Therefore, it is necessary that the position of prosecutor general is not subject to presidential selection.

A second issue in the constitutional amendments relates to the number of sitting justices in the Supreme Constitutional Court (SCC). Article 176 of the 2012 Constitution stipulated that “the Supreme Constitutional Court shall be composed of a president and ten members,” whereas Article 165 of the current draft constitution has cancelled this provision, and decrees instead that “the Court shall be composed of a president (chief Justice) and an adequate number of vice-presidents.” The 2012 Constitution is preferable as it is better to determine a set number of members in the Supreme Constitutional Court. First of all, leaving the decision up to the judges (the general assembly of the SCC) themselves may open the door to conflict of interest and struggles within the Court, as to who joins and who is prevented from doing so. The chance of this happening would be greatly reduced if the number of judges within the court is known in advance. Additionally, in order to ensure transparency and the separation between branches of the government, the process of determining the number of members in the Constitutional Court should not be left up to the Court’s judges themselves. The responsibility of putting in place a judicial system, litigation, and determining the number of appointed judges for a given court, is the work of the legislative branch.

With the fifty-member constituent assembly yet to touch upon these issues, it remains to be seen if these changes will be left intact, or if Egypt will come away with a constitution closer to the 1971 iteration than that of 2012. 

Yussef Auf is a fellow with the Rafik Hariri Center for the Middle East. His work focuses on Egyptian constitutional issues, elections, and judicial matters. He has been a judge in Egypt since 2007.