Court ruling brings Egypt's constitutional crisis to climax

Sarah Mourad , Tuesday 10 Apr 2012

Tuesday's Supreme Administrative Court ruling abrogating the Constituent Assembly is greeted with approval by liberals but triggers mixed reactions by Brotherhood; critics question the legitimacy of the judiciary's decision

Saad El Katatni
Saad El Katatni, head of constituent assembly who is also head of people's assembly and MP of Freedom and Justice Party (FJP) (Photo: Reuters)

The Supreme Administrative Court on Tuesday suspended Egypt's Constituent Assembly – tasked with drafting a new national charter – after ruling in favour of a lawsuit challenging the constitutionality of the 100-member assembly. The case has now been referred to the State Council, which has the authority to refer it to Egypt's Supreme Constitutional Court (SCC).

Judge Mahmoud El-Attar, deputy chairman of the State Council, has stated that judicial authorities were not eligible to oversee parliamentary activity. "However, the Constituent Assembly isn't seen as parliamentary activity, but rather administrative. Therefore, it must remain under control of the judiciary control," he explained.

Many of the complaints made against the Constituent Assembly claimed the selection process violated Article 60 of the constitutional declaration– issued in March of last year by Egypt's ruling military council and approved via popular referendum. However, Article 60 does not state how the 100-member assembly should be assembled.

The article merely stipulates that elected MPs "convene...within six months of the parliamentary elections to elect a constituent assembly composed of one hundred members, to be tasked with preparing a new draft constitution within six months of its formation." 

But El-Attar contends that, even if this were legally possible, "it is unacceptable for MPs to elect themselves" to the constitution-drafting body. "That's one of the reasons why the Supreme Administrative Court suspended the assembly," he said. "What's more, MPs don't have the right to act against the court's decision unless they file an appeal."

El-Attar went on to say that, while it was legal to appeal the ruling at the Supreme Administrative Court, the Constituent Assembly's activities must nevertheless be suspended pending a final decision on the issue.

Judge Ahmed Mekky, former vice-president of Egypt’s Court of Appeal, believes that Tuesday's court ruling provides the "paralysed" Constituent Assembly with a safe "political exit." The assembly, he said, "should be reformed from scratch so as to achieve the desired consensus."

He went on to say that such a move would be in the interest of the Muslim Brotherhood's Freedom and Justice Party (FJP), so as not to alienate an already-sceptical public – especially now that the party has decided to field a presidential candidate.  

"MPs should refrain from being part of the Constituent Assembly," Mekky said, adding that they should concern themselves with legislative responsibilities. "We don't want another vague and ambiguous constitution, like that of 1971."

According to Mekky, the assembly must allocate more space for minorities, and this, he said, can only be achieved by "reformulating" the current assembly. "The main reason for writing a new constitution is to guarantee the rights of those who are powerless and reorganising the functioning of state institutions."

Emad Gad, a liberal MP and political analyst, who withdrew from the assembly after being elected, said that Tuesday's court verdict represented "an opportunity to put things on the right track and resolve ongoing disputes between various political forces."

Meanwhile, sources have revealed that Constituent Assembly head Saad El-Katatni – who is also an MP for the FJP and People's Assembly speaker – has drawn up an ad-hoc committee tasked with discussing Tuesday's court verdict.

The Brotherhood's political arm has relayed contradictory statements following Tuesday's administrative court's verdict. FJP legal advisor Ahmed Abu-Baraka announced plans to appeal the court verdict, which he says lacks legal weight. He described the verdict as "a clear case of the violation of the principle of the separation of powers."

The FJP's head, however, publicly denied these earlier statements.“We fully respect the judiciary verdicts,” FJP head Mohamed Morsi was quoted as saying by Ahram’s Arabic portal.

“We have not appealed the ruling; we are not part of that dispute. The FJP is keen to cooperate with all political forces and parties to write a constitution that would represent all classes of the Egyptian people.”

Regarding the possibilty of a planned appeal of the verdict, Gad said: "We will never achieve anything – or take any steps forward – if we continue to battle over the constitution, especially now that almost all non-Islamist forces have withdrawn from the assembly."

Political analyst and Constituent Assembly member Wahid Abdel-Maguid, for his part, said that any resolution of the crisis should be "political rather than judicial."

He pointed out that the crisis had been ongoing since the assembly's formation, stressing that efforts were still being exerted to resolve them. "We have not reached an impasse in talks, and we're still trying to achieve consensus with all parties," Abdel-Maguid said.

The lawsuit challenging the assembly's constitutionality was initially filed by a number of prominent lawyers, including Cairo University constitutional law professor Gad Nasser; Arab Centre for Transparency and Integrity Chairman Mohamed Shehata; Lawyers' Syndicate head Sameh Ashour; and presidential hopeful Khaled Ali.

Plaintiffs challenged the methods used to form the assembly, arguing that, according to a 1994 SCC ruling, MPs cannot elect themselves to the constitution-drafting body. On 17 March, Egypt's Islamist-dominated Parliament voted to allocate half the seats in the assembly to parliamentarians, while MPs chose the remaining 50 from outside Parliament.  

The move sparked uproar among liberal and leftist political forces, especially after it was revealed that between 60 and 70 per cent of assembly seats would be held by Islamist-leaning figures, including 50 members from the FJP and the Salafist Nour Party.

As a result, more than two dozen members announced their resignation from the assembly, including virtually all liberal and leftist representatives. Several popular demonstrations, meanwhile, were staged in the capital by activists opposed to the domination of the constitution-drafting process by a single political force.

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