The Islamist-dominated Shura Council — currently endowed with legislative powers — is not expected to be dissolved despite Sunday's Supreme Constitutional Court (SCC) ruling that the law regulating the election of its members was unconstitutional. According to the SCC, “while articles ruled unconstitutional might suggest the Shura Council be invalidated completely Article 230 of the constitution, passed in December 2012, made the Shura Council immune to dissolution and granted it legislative powers until a House of Representatives is elected.” The court stated that “the Shura Council is therefore authorised to exercise legislative powers until a new House of Representatives is elected to take charge of legislation.” The ruling pleased Islamists, particularly the Muslim Brotherhood that dominates the Shura Council. Sobhi Saleh, a leading official in the Muslim Brotherhood Freedom and Justice Party (FJP) and a member of the Shura Council's Legislative and Constitutional Affairs Committee, told parliamentary correspondents that “the SCC ruling will not prevent the Shura Council from exercising complete legislative power.” Saleh seemed to acknowledge that the ruling was politicised when he argued that the SCC had acted in the political interests of Egypt by keeping the legislative power in the hands of the Shura Council. “I do not see anything new in the SCC's ruling,” said Saleh. “All laws passed by the Shura Council will remain legal and valid.” The Shura Council, elected by a miniscule turnout and also including a number of presidential appointees, faces the task of issuing a new law regulating the election and performance of the House of Representatives. Two earlier attempts to formulate such a law were rejected by the SCC which judged the drafts unconstitutional. FJP Shura Council spokesman Essam Al-Erian rejected any suggestion that polls will be held to elect a new Shura Council. The SCC ruling, he said, judged the election procedure unconstitutional because it discriminated against independent candidates “but this does not mean that the third of seats reserved for independent candidates will be recontested”. “In its current form,” insisted Al-Erian, “the Shura Council enjoys legitimacy and will continue to exercise its legislative powers until a new House of Representatives is elected.” Al-Erian did concede, however, that “the SCC ruling makes it imperative for the Shura Council to issue a new election law quickly.” On Sunday the Shura Council's Legislative and Constitutional Rights Committee began discussing the SCC report ruling 13 articles of two laws regulating parliamentary elections and political rights unconstitutional. Chairman of the committee Mohamed Touson said the Shura Council will act to revise the laws in line with the SCC's remarks. He also indicated that three other controversial laws, regulating street protests, the activity of NGOs and the performance of the judicial authority, were high on the committee's agenda. Tarek Al-Sehari, deputy chairman of the Shura Council and a leading official of the Salafist Nour Party, stressed that “the SCC's ruling is not expected to cause a legislative vacuum.” “The SCC was clear that the Shura Council will keep on exercising its legislative powers until a lower house of parliament is elected.” Minister of Parliamentary Affairs Hatem Bagato joined in the chorus, stating that “the Shura Council must dissolve itself once a new House of Representatives is elected which will take charge of legislative powers. New elections for the Shura Council can then be held.” Non-Islamist members of the Shura Council were silent over the SCC ruling with Nadia Henri, an appointed Coptic member, the only exception. She urged the Shura Council to dissolve itself after “losing legitimacy in the eyes of the people”. “From now on,” she warned, “after the court raised doubts about the legitimacy of the constitution the Egyptian people will consider this council invalid.” Mohamed Anwar Al-Sadat, chairman of the Reform and Development Party, pointed out that “what is striking about the SCC's ruling on Sunday is that it also ruled the law regulating the selection of members of the Constituent Assembly which drafted the constitution last year unconstitutional.” “This invalidates the constitution passed last December in the eyes of the majority of the Egyptian people. It reinforces the growing conviction that Muslim Brotherhood officials, including President Mohamed Morsi, are authoritarian by temperament.” Al-Sadat told Al-Ahram Weekly that “Morsi and the Muslim Brotherhood's cool reaction to the court's ruling” was telling. “Instead of reviewing their authoritarian tactics and trying to reach common ground with the opposition on a new constitution and a new election law Morsi and his group appeared gleeful that a judgement characterising the election of the Shura Council as unconstitutional would not deprive that same body of its monopoly of legislative and executive powers.” Leading human rights activist Negad Al-Boraai sharply criticised the SCC's ruling. “While the ruling made it clear that the Shura Council was elected unconstitutionally it allows that same council to continue issuing laws. This contradiction makes it crystal clear that the ruling is politicised. The SCC obviously caved in before pressure and threats from the Muslim Brotherhood and President Morsi and refrained from dissolving Shura Council. Contrast this with last year's ruling on the People's Assembly, which was elected under the same laws and was as a consequence dissolved.” Constitutional law expert and a former MP Shawki Al-Sayed points out that “the SCC ruling which invalidated the People's Assembly and led to its dissolution last year was issued while the military council was in power”; the only difference between then and now is that the Islamists are in power and they are “busy trying to bring the judiciary under control”. “If President Morsi were really keen about respecting the SCC's orders,” says Al-Sayed, “he would ask the Shura Council to stop meeting and issuing laws. A new election law would then be drafted which accommodated the SCC's remarks and parliamentary polls held as soon as possible. But Morsi will not do this because the Muslim Brotherhood is determined to retain its monopoly over legislative power.” He predicts that “Morsi's obstinacy and his group's arrogance will see the Shura Council issuing as many Islamist-oriented laws as possible to tighten their control on power rather than serve a national agenda,” and in doing so escalate an already dire political crisis. “We should remember that the SCC, acting upon a request from the Administrative Court, ruled the law regulating the performance of the Constituent Assembly unconstitutional because it made the decisions of this assembly immune to administrative scrutiny,” says Al-Sayed. In Sunday's ruling the court judged the first paragraph of Article 8 of the 1980 Shura Council election law (amended by military decrees 109 and 120 of 2011) unconstitutional. “This article discriminates against independent candidates by allowing political parties to compete for the one third of seats reserved for independents while stripping independents of the right to compete in the two thirds of seats reserved for party-based candidates… In doing so the article violates articles 37 and 39 of the Constitutional Declaration passed by the military council on 30 March 2011.” The court also ruled that Law 79/2012 regulating the selection of the members of the Constituent Assembly which drafted the constitution violates Article 48 of the Constitutional Declaration, passed by the ruling military council on 30 March 2011. “While this declaration gave the State Council the right to review administrative orders the 2012 law elevated the decisions of the Constituent Assembly above any kind of administrative scrutiny.” The SCC also curtailed the president's power by stripping him of the right to authorise detentions under emergency law.
