Mallat in Ahram: Saving Egypt’s Supreme Constitutional Court from itself

15/06/2012

On June 14, the Supreme Constitutional Court of Egypt issued two rulings in two separate chambers: one decision examines the lustration law, dubbed in the media as ‘the law of political exclusion’. It was considered unconstitutional. The second ruling holds that the electoral law under which the new Parliament was elected in March 2012 was flawed constitutionally. By so deciding, the SCC forces full de novo parliamentary elections.

By midnight Egypt time on June 14, the texts of the decision do not seem to have been released officially, even though they need to appear in print in the Official Gazette to be effective. There is no trace of the decisions on the official site of the Supreme Constitutional Court (SCC). The best source seemingly available appears in the daily al-Watan, and consists of around 1000 words in one case and less than 1,500 words for the other. This is unusually short for a SCC decision, though sufficient for a first comment.

As expressed across Egypt, the rulings have far reaching consequences, and raise issues that will not be clarified outside two imponderables: the presidential election, to be completed this weekend, and the reaction of the street.

In the decision dissolving parliament, the SCC holds that the newly elected parliament is henceforth inexistent, as it cannot legislate anymore.This is consistent with a famous decision of the SCC, which had ruled on 19 May 1990 that Law 188 of 1986 regulating Parliamentary elections was unconstitutional, and forced new parliamentary elections for reasons identical to the present ruling: Independent candidates had been disadvantaged by a clause restraining them to a quota that does not apply to members of political parties.(SCC decisions, 19 May 1990, vol. 4 of the official collection, at 286-7; see my Introduction to Middle Eastern Law, OUP 2007, 205-7).The reason given by the SCC today is similarly based on the constitutional inequality obtaining from an electoral law that distinguishes two tiers in Parliament:  2/3 members are to be chosen from political parties, 1/3 from independents.For the Court, constitutional inequality results from the fact that independents are not allowed to run on political parties’ list, but that members of political parties are allowed to run on lists and as independents. Contrary to the early reports, this means that the whole Parliament is illegal, and not just the 1/3 portion of independent members. (continue)

Related: RN publishes English version of Egypt’s SCC Decision on unconstitutionality of Parliament

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