Egypt's Shura Council to continue exercising legislative powers

Gamal Essam El-Din, Monday 3 Jun 2013

Egypt's High Constitutional Court refrains from dissolving Shura Council, citing 2012 constitution protections, although it ruled unconstitutional rules governing membership in constitution-writing body

Shura Council
File photo: Members of Shura Council (Photo: AP)

The Islamist-dominated upper house of the Egyptian parliament, the Shura Council, currently endowed with legislative powers, is not expected to be dissolved any time soon in spite of the High Constitutional Court (HCC) ruling Sunday that some articles of the law regulating the election of the council violated the constitution.

According to the HCC, "although the articles ruled unconstitutional entails that Shura Council be invalidated completely, Article 230 of the constitution passed in December 2012 made the (Shura) Council immune to dissolution and granted it legislative powers until a House of Representatives is elected."

Thus the court stated that the "Shura Council will be authorised to exercise legislative powers until a new House of Representatives is elected to take charge of the power of legislating."

The HCC statement was hailed by Islamists — particularly the Muslim Brotherhood, which dominates the Shura Council. Sobhi Saleh, a leading official of Muslim Brotherhood's Freedom and Justice Party (FJP) and a member of the Shura Council's Legislative and Constitutional Affairs Committee, told parliamentary correspondents that "the High Court's ruling is not expected in any way to strip the Shura Council of exercising complete legislative powers."

According to Sobhi, the HCC "observed the political interests of the country by keeping legislative powers in the hands of Shura Council." In the words of Saleh, "the court observed Article 230 of the constitution which states that Shura Council is the one to be entrusted with legislating and enacting laws until a House of Representatives is elected."

As a result, Saleh argued, "I do not  see anything new about the High Court's ruling and that all laws passed — or which will be passed —  by the Shura Council are legal and valid."

The Shura Council currently faces the challenging task of issuing a new law aimed at regulating the election and performance of the House of Representatives. Since the constitution was passed last December, the council has failed twice to issue a new elections law. The HCC, endowed with the constitutional right of prior review of political laws, ruled twice that two election laws passed by the council in January and in April this year are invalid as many of their articles violated the constitution.

Joining forces with Saleh, Essam El-Erian, FJP's spokesman in the Shura Council, said although the court deemed the law regulating the election of the Shura Council unconstitutional, because it discriminated against independents, "it is not expected that new polls will be held soon to elect anew one third of the seats reserved for independent candidates." According to El-Erian, "In its current form, the Shura Council enjoys legitimacy and will remain exercising its legislative powers until a new House of Representatives is elected."

El-Erian, however, stressed that "the HCC's order makes its highly necessary for the Shura Council to accelerate the issuing of a new elections law."

Tarek El-Sehary, deputy chairman of the Shura Council and a leading official of the Salafist El-Nour Party, also argued that "the court's ruling is not expected in any way to cause a legislative vacuum." "The HCC is clear that the Shura Council will remain exercising its legislative powers until a lower house of parliament is elected," said El-Sehary.

Hatem Bagato, the newly-appointed minister for parliamentary affairs, also said "the Shura Council must dissolve itself once a new House of Representatives is elected." "After the House is elected, it will take charge of legislative powers while new elections for the Shura Council are held and a new one is formed within a year," explained Bagato.

The Shura Council's non-Islamist MPs kept silent, with most of them refusing to comment on the HCC ruling. Nadia Henri, an appointed Coptic member, was the only exception. She urged the "Shura Council to dissolve itself after it lost legitimacy in the eyes of the people." "From now on, the Egyptian people will consider this council invalid, especially after the HCC raised doubts about the legitimacy of the constitution," said Henri.

Mohamed Anwar El-Sadat, chairman of the liberal Reform and Development Party, said: "What is striking about the High Court's ruling on Sunday is that it ruled the law regulating the selection of members of the Constituent Assembly that drafted the constitution last year unconstitutional." "This will make the constitution, passed last December, invalid in the eyes of the majority of the Egyptian people and will reinforce the wide conviction that Muslim Brotherhood officials, including President Mohamed Morsi, are authoritarian by nature," El-Sadat told Ahram Online.

He deplored "Morsi and the Muslim Brotherhood's cool reaction to the court's ruling." In the words of El-Sadat: "Instead of reviewing their authoritarian tactics and trying to reach common ground with the opposition on a new constitution and a new election law, Morsi and his group opted to pour cold water on the ruling and go on monopolising legislative and executive powers."

Agreeing with El-Sadat, Shawki El-Sayed, a constitutional law expert and a former MP, insisted that "the High Court's order strips the Shura Council of legislative powers." "If President Morsi is really keen about respecting the High Court's orders, he must ask the Shura Council stop meeting and issuing laws." "This must be followed by Morsi issuing a new election law observing the remarks of the HCC, so that new parliamentary polls are held as soon as possible," said El-Sayed, adding: "But Morsi will not do this, because his Muslim Brotherhood — the group from which he hails — is the one currently monopolising power."

El-Sayed also argued that "Morsi's obstinacy and his group's arrogance will leave the country suffering from legislative chaos." He indicated that "the final say about the legality of the Constituent Assembly, which drafted the constitution, will be in the hands of the State Council (Administrative Court)." "Please remember that the High Court, acting upon a request from the Administrative Court, ruled that the law regulating the performance of the Constituent Assembly unconstitutional because it made the decisions of this assembly immune to administrative scrutiny," said El-Sayed, explaining that "now the High Court's order will be referred back to the Administrative Court to finally invalidate the Constituent Assembly and the constitution itself."

On Sunday, the HCC ruled that the first paragraph of Article 8 of 1980's Shura Council election law (amended by military decrees No 109 and 120 of 2011) unconstitutional. It said "this article discriminated against independent candidates because it allowed political parties to compete for the one third of seats reserved for independents, while it stripped independents of the right to compete for the two thirds of seats reserved for party-based candidates." "This article violated articles 37 and 39 of the constitutional declaration passed by the military council (Supreme Council of the Armed Forces) on 30 March 2011," said the court.

The HCC also indicated that law No 79 of 2012 regulating the selection of members of the Constituent Assembly that drafted the constitution violated Article 48 of the constitutional declaration passed by the ruling military council on 30 March 2011. "While this declaration granted the State Council the right of reviewing administrative orders, the 2012 law elevated the decisions of the Constituent Assembly above any kind of administrative scrutiny."

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