Egypt's Supreme Constitutional Court today ruled that the law governing the election of the upper house of parliament, which is currently endowed with legislative power, was unconstitutional, deepening the legal confusion that has plagued the transition to democracy in Egypt.
But the court said the Shura Council should not be dissolved until new parliamentary elections are held, preventing a re-run of last summer's scenario. Then, a court ruling dissolved the lower house of parliament, which normally holds legislative powers.
The court also said the body that wrote Egypt's new constitution was illegally formed. The constituent assembly was led by Islamists, and opposition members withdrew from the body in protest. But the document was approved by national referendum in December, which experts say makes it unlikely to face a challenge.
Experts say the ruling deals a blow to President Mohamed Morsi and the constitution, though it is unlikely to cause any major changes on the ground. “Despite the fact that practically the rulings of the court do not change much, I think politically they undermine the legitimacy of the constituent assembly and the Shura Council,” says Mustapha Kamel Al Sayyid, a political science professor at the American University in Cairo. “The practical implication is to provide more ammunition to the opposition and civil society groups which are unhappy with the rule of President Mohamed Morsi.”
The ruling comes amid an escalating confrontation between the Muslim Brotherhood and the judiciary. The Brotherhood has called for a “purging” of the judiciary, which the group says contains many judges sympathetic to the old regime who have sought to thwart the success of the democratic transition. In addition to declaring the parliament invalid last year, courts have this year twice rejected a law to oversee new elections, delaying the vote.
But judges are outraged at a proposed law that would lower their retirement age, forcing thousands to leave the bench. They accuse the Brotherhood of trying to create an opportunity to fill the bench with judges sympathetic to Islamists.
In a statement issued after the ruling, Mourad Ali, a spokesman for the Brotherhood's Freedom and Justice Party (FJP), said “certain individuals are as determined as ever to drag Egypt’s judiciary into political conflict."
According to Zaid Al Ali, a Cairo-based adviser on constitution building for the Institute for Democracy and Electoral Assistance, the court's ruling could affect any subsequent laws passed by the Shura Council. While the constitution ratified last year gave the Shura Council legislative power, it also called for new parliamentary elections within 60 days – something that did not happen. Under that scenario, the Shura Council would have held legislative power for a short time, for the purpose of drafting an electoral law.
Mr. Ali said that his preliminary assessment, without yet reading the court's official decision, was that the court's ruling that the Shura Council is unconstitutional means that “any law it passes or tries to pass could potentially be subject to challenge in courts.” That would leave the process of drafting a law to govern new elections in uncertain territory.
The president's office and the FJP, however, said the Shura Council would keep its legislative powers until a new election. “The ruling recognizes the Shura Council as the country’s legislature, with its current setup and that it must continue its legislative role until the House of Representatives is elected,” said Mr. Ali, the FJP spokesman.