Is Egypt’s Shura Council Constitutional?

Almost a year ago, the Supreme Constitutional Court (SCC) dissolved Egypt’s first democratically elected parliament in decades. The court issued its controversial decision after rushed hearings two days before the presidential election runoffs between the Muslim Brotherhood’s Mohammed Morsi, the eventual winner, and Ahmed Shafik, prime minister of deposed president Hosni Mubarak. The court is now set to determine the constitutionality of the Shura Council, the upper house of the legislature, on June 2. The 270-member council of 90 presidential appointees and 180 elected members is historically a powerless body with only a consultative mandate. Today, however, it is operating as Egypt’s only legislative body.

The case challenging the legality of the Shura Council was filed on June 25, 2012, following the June 14 dissolution of the People's Assembly, the lower house of parliament. The SCC ruled against the parliament after deciding that the election law violated the principle of equality by discriminating against independent candidates. The court found that the law allowed parties to compete for one-third of the seats reserved for independents.

Although the challenge against the Shura Council was submitted after the SCC’s ruling against the parliament, it faces the same legal problem because the Shura election was governed by the same electoral law.

Mahmoud Hamad, a Drake University assistant professor of political science focusing on the Egyptian judicial system, told Al-Monitor on May 23, “If the courts follow the letter of the law, they have no other choice than to indicate that the Shura Council has to be dissolved.”

Hamad noted, “The problems concern the [president’s] constitutional declarations and the new constitution, which provide immunity for the Shura Council from dissolution by a court order. So, which kind of legal logic will the court follow?”

On November 22, 2012, President Morsi issued a series of unilateral constitutional declarations, including a decree that no judicial authority could dissolve the Constituent Assembly or the Shura Council. He also immunized from judicial review all presidential declarations, laws and decrees that he had made since taking office in June 2012. Morsi's decrees led to a number of mass demonstrations and violent clashes between pro-Morsi supporters and opponents of the declarations.

On December 8, Morsi moved to quell Egyptians’ anger by taking steps that Youssef Auf, an administrative judge and Cairo University doctoral candidate in constitutional law, referred to as “a dirty political game.” As Auf explained to Al-Monitor in a May 22 interview, “On December 8, he issued a new political declaration giving the fake impression that the November 22 declarations were cancelled, but in fact, the effects of November 22 are still in [place]. So, we challenged the provisions, not the consequences.”

Auf added, “When you have laws, but you use words to achieve your desires, it’s the worst form of manipulating the legal system to achieve your desires. That’s what happened.”

As a lasting consequence of the November declarations, the Shura Council is still protected from dissolution. As a result of the changes in the legal landscape, in January 2013, the SCC sent the case against the Shura Council to the State Board of Commissioners, its advisory board, for review. The commission wrote an opinion stating that it could not decide whether the council was unconstitutional because of Morsi’s constitutional declarations. The commission’s finding is not, however, binding upon the SCC.

Auf argues that the SCC has the authority to consider the constitutionality of the Shura Council by retrospectively invoking only the legal references enacted at the time of the election and filing of the case, namely, the 1971 constitution, which does not defend against judicial review of the Shura Council. He also contends that the SCC is aware of the need to take social and political factors into consideration in this case. A ruling against the Shura Council would trigger another judicial confrontation with the executive and legislature, which are already at odds over the judicial authority law.

An even more dire consequence of the Shura Council’s dissolution would be the concentration of all legislative power in the hands of the executive — that is, President Morsi. Tarek Radwan, associate director for research at the Atlantic Council’s Rafik Hariri Center, told Al-Monitor on May 23, “No one, not even the Muslim Brotherhood, wants [this]. The Shura is incredibly important to Morsi to diffuse authority.”

Under the auspices of the ratified December 2012 constitution, the Shura Council inherited the parliament’s legislative power for the period of the lower house's dissolution. While legally this framework is more democratic than under the previous, 1971 constitution, which transferred legislative power immediately to the executive in the case of parliament’s dissolution, there are still serious concerns over the Shura Council’s democratic mandate.

Auf asserts, “When the Egyptian people went to the ballot station, it was to elect a specific body with specific competencies. They knew the Shura Council was worthless, that it had no competencies, so the turnout was 6%. The whole jurisdiction of the current Shura is against the will of the Egyptian people. I do believe that the Shura Council is practicing illegitimate competencies at the moment.”

In his assessment of the situation, Radwan insisted, “This is just one more example of an entire system that suffers a legitimacy crisis.” He noted, however, that the Shura is yet to pass an overtly unpopular law, so its relevance is not center stage, nor being challenged. He predicts that until something like that happens, the council will remain a relatively quiet actor that gives a sense of state integrity, whether legal or illegal.

Since it started exerting legislative authority in December 2012, the Shura Council has passed some significant legislation, including a new taxation law and sukuk (Islamic bonds) law, while still debating drafts of controversial laws on nongovernmental organizations and judicial authority.

The new constitution clearly gives the elected, future parliament authorization to review any legislation passed by the Shura Council, but Auf says that this is also a political ploy. It is typically within the jurisdiction of the sitting legislature to review or amend the work of the previous body.

“There’s nothing special in this provision. There’s nothing new,” Auf explained. “It’s just a trap to say don’t worry, you can reverse the work of the Shura if you don’t like it. But this is normal.”

The difference in the SCC’s leadership between the June 2012 decision dissolving parliament and the current decision on the Shura Council is expected to have an impact on the ruling. The head of the court during the 2012 case, Farouk Ahmed Sultan, was a reputed Mubarak man. Maher al-Beheiry, the current chair, is perceived to be a more neutral and risk-averse figure.

While the SCC is not expected to rule against the Shura Council for political and legal reasons, Radwan thinks that the court might move to postpone its decision until before parliamentary elections, which are yet to be scheduled. At that point, if the court rules against the council, the court could save face legally, while avoiding pushing the country further toward political instability.

Although the decision will be another test for the judiciary during a time when the population is already deeply polarized and the state’s institutions are embroiled in internecine war, Hamad is confident that unlike the hasty and contentious ruling on the dissolution of parliament, the SCC will act differently in regard to the Shura Council. He contends, “The court is giving itself time to explore. This is a very important decision. I think the SCC is slowly restoring its image as a neutral umpire.”

Zenobia Azeem is a Cairo-based freelance writer. She has worked in the field of international election observation for the past five years, primarily in the Middle East. On Twitter: @elbowsymmetry