On June 2 2013, Egypt’s Supreme Constitutional Court (SCC) issued its ruling in the cases of the Shura Council and Constituent Assembly. These rulings mark the continuation of the state of political and legal confusion that Egypt has endured over the last twenty-eight months (the age of the Egyptian Revolution) and will doubtless spark new, never-ending political and legal debates. The Court ruled that several provisions of the Shura Council law were unconstitutional, along with the law setting standards for electing members of the Constituent Assembly tasked with drafting the constitution. What does this ruling mean? On what basis did the SCC make its decision? And what are the results of these two rulings?
After the case was pending before the SCC for nearly a full year, awaiting judgment on the constitutionality of the Shura Council law, three of its articles have finally been declared unconstitutional by the court. These articles grant candidates affiliated with political parties the right to run for the two-thirds of the seats in parliament under the closed party list system, in addition to the right to stand for the remaining third of seats reserved for individual candidates. This provision violates the constitution on several grounds, because the remaining seats were supposed to be reserved for independent candidates, not for party candidates who were already allocated two-thirds of the seats under the list system.
This was the reasoning behind the unconstitutionality ruling. However, more important are the ruling’s impact and second-order effects. The case has several complex and overlapping legal issues. For example, the fact that the SCC ruled that the three aforementioned articles were unconstitutional means that the third of Shura Council seats reserved for individuals is considered invalid, meaning that the entire Shura Council elections are thus invalid – both the one third for individuals and two thirds for party lists. However, in an attempt to deal with a number of legal and political calculations, the SCC said that the nullification of the Shura Council is a "deferred judgment," that will not be implemented until the new House of Representative convenes. Optimistic forecasts place parliamentary elections as far down the line as the end of the year. This means that the Shura Council will continue to issue legislation in accordance with article 230 of the new constitution. The latter article worked as the basis for preventing the SCC from "immediately dissolving" the Shura Council.
This was the solution that the SCC found to one of the hardest tests the court has faced in its history. According to the SCC ruling on the unconstitutionality of the People’s Assembly Law issued last year, resulting in the Assembly’s dissolution, the Shura Council in turn is also unconstitutional. The reason for this is that the Shura Council and People’s Assembly laws are practically identical, sharing much of the same language. Therefore, the question of how to rule on the Shura Council was a thorny one for the court. How could it declare the law unconstitutional and therefore dissolve the Council, when the body was protected by the Constitutional Declaration of November 2012 and by the new constitution (Article 230)? Thus the court decided to follow this middle path that looks unlikely to please many.
The SCC’s second ruling dealt with the law on the Constituent Assembly responsible for drafting the new constitution. The upshot is that after the Constituent Assembly was actually formed and began its work, the People’s Assembly, before its dissolution, issued a law setting the criteria for selecting Assembly members. The goal of issuing this law (No. 79 of 2012) was to immunize the selection process, placing it above scrutiny from the Administrative Judiciary (which had earlier led to the dissolution of the first Assembly).
Despite the fact that this law No. 79 of 2012 was never actually applied, as it was issued after the Constituent Assembly was formed and had begun its work, the SCC ruled that the entire law was unconstitutional for two main reasons: The first is that the criteria for electing members of the Constituent Assembly infringes on the authority of the Assembly to set the rules that govern and regulate its operation. In other words, for the legislative authority (the People’s Assembly) to issue a law setting the criteria for the Constituent Assembly constitutes parliamentary interference in the work of the constituent authority (the Constituent Assembly). This latter authority is not subject to interference because it is the supreme authority and will establish the three branches of government through the new constitution. The second reason is that law No. 79 of 2012 is self-defeating and not only sets the criteria for electing the Constituent Assembly, but also sets rules for the body’s operation. This is deemed interference in the Assembly’s work because the body has the right to set its own internal rules and administrative procedures.
Regarding the consequences of the ruling that the Constituent Assembly formation law was unconstitutional, it was assumed that this would invalidate the Constituent Assembly’s work. However, the SCC said in its ruling that the “people’s approval” of the new constitution “corrects” any invalidity in the pre-referendum procedures or the entire process of writing the constitution.
Taken together, the two SCC rulings mean that the new constitution was issued legitimately, even if the Constituent Assembly that wrote it was invalid, just as the Shura Council is considered invalid as it was elected on the basis of an unconstitutional law. This is in spite of the fact that the Council will continue its work until the election of a new People’s Assembly.
It is worth mentioning that president Mohamed Morsi’s government and the entire Islamist current backing it were able, by force, to "give life" to the Constituent Assembly (and the constitution itself) as well as the Shura Council, despite their illegitimacy. The blockade of the SCC building that took place in December 2, 2012, preventing judges from entering the court, delayed the rulings on both the Shura Council and the Constituent Assembly, "before" the promulgation of the new constitution. The dissolution of the Shura Council and the Constituent Assembly were inevitable, but the “blockade” of the court building – in an extremely negative precedent for the regime –prolonged the entire issue, leading to the current result.
Yussef Auf has been a judge in Egypt since 2007. He is currently a non-resident fellow at the Atlantic Council’s Rafik Hariri Center for the Middle East in Washington DC where he focuses in his research on Constitutional issues, elections and judicial matters. He can be reached at yussufauf@hotmail.com.
Photo: SCC