English Summary of Constitutional Court Decision

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.

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

A different perspective on the dissolution of parliament

No one can deny the Egyptian transitional period has been a legal mess from the very beginning. Let's take the constitutional referendum for instance, in which citizens were asked to either approve or reject amendments made to the Constitution of 1971. Was there enough time between the publication of the final version of the amended articles and the referendum so a decent public debate could take place? Could we say that a reasonable person would have had sufficient information and time so as to make an informed decision? Questioning that was often made equal to questioning the intelligence of the Egyptian people which would result in one's branding as 'nokhba' (elite), and thus started the first chapter of The War of Words I wrote about before. 

After the referendum had taken place and a majority of the population had approved the revised articles, a Constitutional Declaration was issued, one which included articles the public had never seen or discussed. Yet that declaration would become the main legal document for the transitional period. At the time some people questioned this, how due to a lack of time and information (mainly also about the consequences of a no-vote) the results may have been manipulated, but many were silenced and branded as "undemocratic" because the ballot boxes had 'spoken'. And so the entire theory of democracy, the whole process was reduced to what the 'ballots' said.

This piece is not meant to focus on the Constitutional Declaration and its many flaws, however I think what is written above clarifies the skewed understanding of democracy some people have. If millions went to vote, many would say this overrules any terrible procedural flaws which may even be enough to strip the whole process of any legitimacy.

This leads us to the recent dissolution of parliament. After the announcement of the decision taken by the Supreme Constitutional Court, media immediately jumped to the conclusion that a "coup d'état" had taken place as the only "democratically" elected body was dissolved. Going back to the facts of the case (AR), it was a lawyer who had asked an administrative court to halt the declaration of the results in a certain district by the Supreme Electoral Commission. In that district two party members had battled over a seat belonging to the one-third of seats to be filled by individuals (as opposed to the two-thirds reserved for electoral lists). The plaintiff argued that several articles in the electoral law were unconstitutional for disregarding the principle of equality stipulated in article 7 of the Constitutional Declaration. The administrative court refused to grant the plaintiff what he wanted on January 9th 2012 so he appealed the decision before the Supreme Administrative Court. In February, the case was halted and referred to the Supreme Constitutional Court so as to judge the constitutionality of the articles in question. 

Egypt's Supreme Constitutional Court

In its decision, the Supreme Constitutional Court mentioned article 38 of the Constitutional Declaration, which stipulates the electoral system would be mixed including one third through individual voting and two thirds through the electoral list system (this article had been amended by the Constitutional Declaration of 25 September 2011 in order to constitutionally solidify the mixed electoral system). The Supreme Constitutional Court, arguing on the basis of the principle of equality and non-discrimination, found that this should mean that while two thirds of parliamentary seats were reserved for electoral party lists, the other third should be reserved for independents not belonging to any political party. 

This, indeed, had been the system which was in place before the political parties, most prominently the Freedom & Justice Party and the Nour Party who together garnered the majority of the seats in parliament, had threatened to boycott the elections unless SCAF amended the electoral law. Article 5 of said law which stipulated that only independents were allowed to run for the seats reserved for individual voting, was cancelled. This meant that parties were allowed to field candidates both on the party lists and through the individual voting system thus limiting the chances of independents. 

At the time, the political parties were ready to disregard considerations of fairness and equality under the pretext that article 5 would allow for the NDP to return to parliament. However, former NDP members could still join parties and run on their lists and didn't need to run for the individual seats, thus rendering that argument (at least partly) invalid. Unless specific NDP members were tried and convicted of certain crimes, one shouldn't simply derogate their rights (and that's assuming all independents are NDP members), at least not in a democracy in which the equal exercise of political rights is essential.

Furthermore, the people should be the ones to decide who they want in parliament. However, the slogans which were used during the constitutional referendum in March, which argued that any criticism of the process was an insult to the intelligence of the people and which glorified the ballots to the extreme, were no where to be heard. Apparently, the same people who were able to vote yes on the constitutional referendum, were unable to vote against the NDP in parliamentary elections..

So the Supreme Constitutional Court found this system to be in disregard of the equal political rights of independents, not belonging to any political party, as they were only allowed to run for one third of the seats while candidates belonging to parties were allowed to run for all seats in parliament including the one third which should have been solely reserved for independents. Based on this, the Court found the articles in question to be unconstitutional and consequently also the entire voting system, since if article 5 had still been in place, the entire outcome of elections would have been different: not only the third reserved for independents, but also the other two thirds, since parties would have probably organized their lists differently had they known they couldn't run candidates in the individual system as well.

Finally, I would like to point out that the same parties and political leaders who insisted on a voting system they knew could be found constitutionally flawed and yet went ahead with elections despite that, would later on enact the political disenfranchisement law. That law was declared unconstitutional as well by the Supreme Constitutional Court for being in blatant disregard of the respect for political rights among other things.

The law meant that parliament could simply vote away fundamental individual rights if the required majority is met (and not through a court decision after due process). Additionally, the law signified that it would be acceptable for parliament to limit the choices of the very same people who voted that parliament in by excluding certain candidates from the race.

It is this way of thinking, in which the outcome of the ballots is the only thing that matters even if the process itself was terribly flawed that is the most dangerous thing for a nascent democracy. I will conclude with this saying by Sallust: "Every bad precedent originated as a justifiable measure": if we are willing to trample the most basic individual rights, to disregard the principles of rule of law in order to reach our goals, then we must be careful for we will become like the very monsters we're claiming to fight.