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

15/06/2012

Decision of the Supreme Constitutional Court of Egypt dissolving Parliament: Excerpts as published by the newspaper Al Watan, Thursday 14 June 2012 at 15.39:  Comments and references by Right to Nonviolence in brackets

In its session held today, Thursday [14 June 2012], the Supreme Constitutional Court (SCC) of Egypt – under the presidency of Counselor [Justice] Faruq Sultan, the SCC president, and the membership of Maher al-Buhairi, Dr. Hanafi Jibali, Muhammad al-Shannawi, Maher Sami, Muhammad Khayri, Dr. Adel Sherif, vice-presidents, and in the presence of Counselor Dr. ‘Abd al-‘Aziz Salman, head of the SCC Commissioners’ body, held:

First:  Unconstitutionality of clause 1 of Art.3 of Law 38 of 1972 on Parliament [Egypt has two legislative bodies, Parliament, majlis al-sha‘b, and the Shura, an upper Council, majlis al-shura] as amended by Decree-Law 120 of 2011. [Arabic and English version of Decree-Law 120 here]

Second: Unconstitutionality of Clause 1 of Art.6 of the [aforementioned law] as amended by Decree-Law 108 of 2011 expanding the right of presenting one’s candidacy to membership in Parliament in the districts reserved to uninominal election, to the members of political parties alongside those who are not members of these parties. [Arabic and English text of Decree-Law 108   here  ]

Third: Unconstitutionality of Art. 9 bis of the aforementioned law as supplemented by Decree-Law 109 of 2011 including the final list of uninominal candidates mention of the party of which the candidate is member.

Fourth: Unconstitutionality of Art.1 of Decree-Law 123 of 2011 amending some dispositions of Decree-Law 120 of 2011, and voidness of Art. 2 of the aforementioned Decree-Law.

[Facts] Anwar Sabeh Darwish had brought case 2656 Year 13 before the administrative court, asking for non-application  and subsequent annulment of the decision of the Electoral High Committee concerning the results of the elections of Parliament in the uninominal third district in Qalyubiyya, to the extent of that decision having established a re-run between the candidate of the Freedom and Justice Party [The Muslim Brotherhood] and the candidate of the Nur Party [Salafists] in the district. [The petitioner requested] their exclusion, as well as the exclusion of the candidate of the Freedom Party for the workers’ seat from amongst the uninominal candidates.

Petitioner  blamed the Committee’s decision for violating the law and for [basing its decision on] an unconstitutional Art.3 Clause 1 of Law 138 of 1972 on Parliament as amended by Decree-Law 120 of 2011, and Art. 1 of Decree-Law 123 of 2011 amending some dispositions of Decree Law  of 2011, as they violate the principle of equality guaranteed by Art. 7 of the Constitutional Declaration in discriminating between members of political parties who number three million, and independents who number 50 million, by devoting to the political party members two-thirds of parliament, and by restricting the right of independents to the remaining one-third who face further competition from political party members. On 9/1/2019 that court ruled on the summary aspect of the case by refusing to suspend the enforcement of the decree attacked. Appeal 6414 of Year 58 was made before the High Administrative Court. On 20/2/2012 the relevant chamber of the Higher Administrative Court suspended its deliberations and referred the case to the SCC to decide on the constitutionality of the texts attacked in light of their possible violation of the aforementioned Constitutional Declaration.

The SCC said in the dispositions of its decision that [sic in al-Watan Report, suggesting that this is only an excerpt]:

Article 38 of the Constitutional Declaration of 30 March 2011 as amended by the Constitutional Declaration of 25 September 2011 stipulates that “the law organizes the right of candidates to the councils of Parliament and the Shura in accordance with an electoral system that combines closed parties’ lists and a uninominal system in proportion of two-thirds for the former and one third remaining to the latter”. The objective of the text in the light of the two principles of equality and fairness of chances, and the rules of justice, is that the restriction of candidacy to Parliament to the closed party lists in a two-thirds portion, is mirrored by the restriction of the remaining one-third of uninominal seats to independents not belonging to political parties, and that the constitutional legislator has adopted this distinction to develop diversity in the ideological and political trends inside Parliament, so that Parliament in its final form expresses the diverse view of society, represents society in its diverse aspects, currents and trends, and embraces society’s diversity. This diversity in turn will enhance Parliament’s fulfillment of its constitutional role under Art. 33 of the Constitutional Declaration. This objective is contradicted by the route taken by the legislator in the text under attack, because the legislator allowed political parties’ members two opportunities to win a seat in Parliament, one by way of candidacy in the closed party lists, and another by uninominal candidacy, whereas the only possibility available to the independent candidates who are not members of political parties is limited to the one-third uninominal candidacies, so that they encounter additional competition from party members who receive all kinds of support which is unavailable to the independent candidate, a matter which violates Art.38 of the Constitutional Declaration and undermines the right to being a candidate, without the distinction finding a reason in an objective rule that is founded in the nature of the right to be a candidate and what the right entails in practice, a practice through which are accomplished equality and fairness of opportunity, in addition to what the route adopted by the legislator entails in terms of violation of the principles of justice as confirmed in Art. 5 of the Constitutional Declaration.

[The SCC decision confirmed that] the constitutional deficiency that undermines the attacked texts extends to the entire electoral system that the legislator established, whether in regard to the two-thirds quota reserved to the political parties’ closed lists or to the one-third reserved to the uninominal system. [The SCC further explained that] the decision to crowd the independent candidates who do not belong to parties with political party candidates in the uninominal positions had its assured and mutual impact on the two-thirds portion allocated to the closed party lists. Without the added competition by the parties to the independents in the remaining third, a reshuffle would have certainly taken place inside the parties’ list in accordance to the parties’ internal priorities.

[The Court concluded that] the elections for Parliament were conducted on the basis of texts that have [long] been deemed unconstitutional by this Court. [See SCC collection of decisions, vol. 4, decision of 19 May 1990] The entire establishment of Parliament is null since the elections, which means its effective disappearance under the force of law since that date, without need for any further measure. This is the result of the unconstitutionality of the laws mentioned, and the application of the absolute and universal effect of decisions in constitutional cases, binding on all [citizens] and on the state in its various powers in accordance with Article 49 of the Law of the SCC. This however undermines in no way the laws and decisions passed by Parliament to date, and these laws, decisions and measures remain valid until the publication of the present decision in the Official Gazette and continue to be valid and effective so long as they have not been repealed or amended by the appropriate constitutional party, or considered unconstitutional by the SCC in aspects not considered by the present decision.

 

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