Today, Egypt's Supreme Constitutional Court issued its decision regarding the constitutionality of the law which regulated the election of the Shura Council, Egypt's Upper House. This is the English summary of the ruling as it was published on Al Ahram newspaper.
1. Article 2.1 of the 2011 version of the Law nr. 120 of 1980 is unconstitutional.
2. Article 8.1 of that same law (as amended by the law nr. 109 of 2011) is also unconstitutional. This article gave both independents (not belonging to any party) and party members the right to run for seats reserved for individual voting (as opposed to electoral lists).
3. Article 24 of the same law is unconstitutional for providing that art. 9 bis a of the Law nr. 308 of 1972 re. the People's Assembly applies to the Shura Council as well.
4. This verdict is not to be implemented until a new Lower House is elected as article 230 of the Constitution stipulates.
The verdict is based on the controversial article 5 (which I mentioned in my article about the Dissolution of Egypt's Lower House a year ago) of the law nr. 120 of 2011 which stipulated that to run for the third of seats reserved for individual voting, the candidate had to be independent, thus not belonging to any political party. That article was later cancelled by law nr. 123 of 2011.
The Court clarified that its judgement is based on the old constitution, being the Constitutional Declaration which was issued on the 30th of March 2011 and amended by the declaration of 25 September 2011, as the new constitution isn't retroactively applicable. The old constitution being the one which was valid when the disputed articles were promulgated. The new constitution of 2012, in fact, goes in against the disputed law nr. 20 of 1980 because it states in article 231 that both independents and party members are allowed to run for all seats in parliament.
The Court continued saying that art. 38 of the Constitutional Declaration of 2011 which was applicable during the parliamentary elections stated that the electoral system would combine a system of electoral lists for two thirds and an individual system for the remaining third. The principle of equality and non-discrimination would suggest that this means that if only party members were allowed to run for the two thirds reserved for electoral lists, then independents should have been exclusively allowed to run for the remaining third of parliamentary seats. The system which allowed party members to run for all seats available while independents could only run for one third was deemed discriminatory and contrary to the principle of equal opportunity.
Therefore, the aforementioned parts of articles 2, 8 and 24 of the Law nr. 120 of 1980 were deemed unconstitutional by the Court.
The Court then mentions that since the people are sovereign and since they have voted upon the new constitution, it became the highest law in the land. This, regardless of whether that constitution fulfilled all aspirations or failed to do so in some aspects.
Therefore, the Court reconfirmed that, even though the unconstitutionality of the aforementioned articles leads to the invalidity of the Shura Council, the effects of that invalidity have been halted by the new constitution of December 2012. Article 230 of the new constitution specifies that the Shura Council takes over legislative powers until a new Lower House is elected at which point the legislative powers are transferred to the latter. A new Shura Council is to be elected within 6 months of the date of the first meeting of the new Lower House.
So the Shura Council remains the holder of legislative powers as article 230 of the constitution stipulates. After a new Lower House is elected, the effects of this verdict can take their course.
PS: You can read my analysis of the Court's Dissolution of Parliament last year here
Edit: emphasis added in bold for ease of reading
1. Article 2.1 of the 2011 version of the Law nr. 120 of 1980 is unconstitutional.
2. Article 8.1 of that same law (as amended by the law nr. 109 of 2011) is also unconstitutional. This article gave both independents (not belonging to any party) and party members the right to run for seats reserved for individual voting (as opposed to electoral lists).
3. Article 24 of the same law is unconstitutional for providing that art. 9 bis a of the Law nr. 308 of 1972 re. the People's Assembly applies to the Shura Council as well.
4. This verdict is not to be implemented until a new Lower House is elected as article 230 of the Constitution stipulates.
The verdict is based on the controversial article 5 (which I mentioned in my article about the Dissolution of Egypt's Lower House a year ago) of the law nr. 120 of 2011 which stipulated that to run for the third of seats reserved for individual voting, the candidate had to be independent, thus not belonging to any political party. That article was later cancelled by law nr. 123 of 2011.
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| Egypt's Supreme Constitutional Court |
The Court clarified that its judgement is based on the old constitution, being the Constitutional Declaration which was issued on the 30th of March 2011 and amended by the declaration of 25 September 2011, as the new constitution isn't retroactively applicable. The old constitution being the one which was valid when the disputed articles were promulgated. The new constitution of 2012, in fact, goes in against the disputed law nr. 20 of 1980 because it states in article 231 that both independents and party members are allowed to run for all seats in parliament.
The Court continued saying that art. 38 of the Constitutional Declaration of 2011 which was applicable during the parliamentary elections stated that the electoral system would combine a system of electoral lists for two thirds and an individual system for the remaining third. The principle of equality and non-discrimination would suggest that this means that if only party members were allowed to run for the two thirds reserved for electoral lists, then independents should have been exclusively allowed to run for the remaining third of parliamentary seats. The system which allowed party members to run for all seats available while independents could only run for one third was deemed discriminatory and contrary to the principle of equal opportunity.
Therefore, the aforementioned parts of articles 2, 8 and 24 of the Law nr. 120 of 1980 were deemed unconstitutional by the Court.
The Court then mentions that since the people are sovereign and since they have voted upon the new constitution, it became the highest law in the land. This, regardless of whether that constitution fulfilled all aspirations or failed to do so in some aspects.
Therefore, the Court reconfirmed that, even though the unconstitutionality of the aforementioned articles leads to the invalidity of the Shura Council, the effects of that invalidity have been halted by the new constitution of December 2012. Article 230 of the new constitution specifies that the Shura Council takes over legislative powers until a new Lower House is elected at which point the legislative powers are transferred to the latter. A new Shura Council is to be elected within 6 months of the date of the first meeting of the new Lower House.
So the Shura Council remains the holder of legislative powers as article 230 of the constitution stipulates. After a new Lower House is elected, the effects of this verdict can take their course.
PS: You can read my analysis of the Court's Dissolution of Parliament last year here
Edit: emphasis added in bold for ease of reading
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