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Jerusalem Center for Public Affairs
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Towards a Constitutional Crisis in Egypt?

Filed under: Egypt, The Middle East

Egypt’s Supreme Constitutional Court ruled on June 2, 2013, that the laws governing the election of members of the Islamist-dominated Shura Council (Egypt’s upper house) were illegal and invalid.1 President Morsi’s Freedom and Justice Party (FJP), the Muslim Brotherhood’s political arm, holds 42 percent of the Shura Council seats. However, the court said the Shura Council would only be dissolved after new elections are held for the People’s Assembly (the lower house). The Supreme Constitutional Court had ruled in June 2012 that the electoral law under which the lower house was elected was invalid, prompting its dissolution. The Shura Council was then given legislative powers by the constitutional panel.

The court also ruled that the 100-member constitutional panel established by President Morsi to draw up the new constitution, which was adopted in a nationwide referendum in December 2012, was also illegal and invalid. The latest ruling raises the possibility that Shura Council legislation may also be considered unconstitutional, which could be critical since the chamber is debating a number of controversial bills this month, including a draft law that would heavily restrict the funding available to develop a free civil society.2 The new constitution had been criticized after it emerged from a rushed session of the Islamist-dominated drafting assembly. Critics argued that it failed to protect freedom of expression or religious belief and institutionalized military trials for civilians.

The Supreme Constitutional Court also appears to have ruled against the government’s arrest powers under Egypt’s emergency laws, which have been used by successive Egyptian presidents to crack down on opponents.

It is unclear what effect the ruling will have on the legitimacy of the constitution, especially since the Egyptian presidency issued a statement stressing that President Morsi was the ultimate source of legitimacy by virtue of being elected by the people of Egypt. Moreover, the Muslim Brotherhood’s Freedom and Justice Party stated that the court ruling on the Shura Council has “no practical effect.”3 The Shura Council will continue its role as a legislative power as stipulated by Article 230 of the constitution, which grants full legislative powers to the Shura Council until a lower house is elected.

Regardless of the court ruling’s immediate consequences, it is likely to embolden liberal critics of the Shura Council and the constitution, and widen the rift between Egypt’s judiciary and its Islamist-dominated legislature and executive. The Shura Council has been considering legislation that would force more than 3,000 judges out of office by lowering the mandatory retirement age. Members of the upper chamber say many judges are Hosni Mubarak-era loyalists who are hostile to the country’s Islamist rulers.

These latest developments illustrate the depth of the structural crisis and the almost chaotic situation in which Egypt is drifting nowadays. It is one more sign of the inability of President Morsi to stabilize the domestic situation in Egypt, and of a continuous trend to limit the boundaries of democracy. The ruling of the Constitutional Court may end up accelerating the clash between the Islamist regime and the secular forces inside Egypt.

In the same week, an Egyptian court pronounced itself on the NGO issue, which was widely publicized a year ago.4 The court ordered the closure of the offices of  five NGOs that were accused of receiving foreign funds (mainly American), supposedly directed to enhance democracy in Egypt, without the authorization of the Egyptian authorities. The court sentenced 43 people to jail terms stretching from 1 to 5 years. Nineteen of the accused are American citizens, 16 are Egyptians, and the rest are Norwegians, Palestinians, Jordanians, Serbs and Germans.

No doubt these developments will have consequences for the already frosty relations between the U.S. and Egypt, and will certainly weigh in when the American Congress discusses U.S. aid to Egypt.

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