Case no.: 112 constitutional judiciary year 34
Case Year: 2012
Verdict Date: 2-6-2013
Judges: President – Maher al Beheiri
Members – Anwar Rashad al Assi – Mohamed Abdul Aziz al Shinnawi – Abdul Wahhab Abdel Razaq – Mohamed Abdulaziz al Shinnawi – Maher Sami Youssef – Mohamed Khairi Taha al Naggar – Said Marie Amr
Court: Supreme Constitutional Court
Subject Lawsuit and no.: 10627 judiciary supreme year with subject of appealing against the decision of announcing the results of the election of Shura council in Luxor district for the individual system including the re-electing among four of the candidates not among them the prosecutor. The prosecutor requesting to suspend the electing procedures in the re-election determined in 22-2-2012. the supreme administrative court ruled of suspension of consideration the appeal and the referral of the papers to the supreme constitutional court to judge the constitutionality of the two paragraphs of the article 2 and the first of the article 8 of the law no. 120 year 1980 concerning the Shura council and its amendments
The legal text appealed against:
The first paragraph of the article no. 2 of the law 120 year 1980 replaced by decree of law 109 year 2011 concerning the Shura Council and its amendments stating: the Arab Republic of Egypt is divided to twenty six electoral district
First paragraph of the article 8 of the law 120 year 1980 replaced by the decree of law 109 year 2011 concerning Shura Council and its amendments stating: the candidate submits a request of running elections for Shura as a written request to the directorate of security in the governorate in which s/he runs elections with a copy ratified by the party list to which s/he belongs proving that s/he is listed in this list, in a perdiod determined by the Minister of Interior with a decision by him, provided that it is not less than 15 days starting from the date of accepting the requests
The constitutional court, according to its authorities, faces the article 24 of the law 120 year 1980 replaced by the decree of law 109 year 2011 concerning Shura Council and its amendments stating: “without violating the provision of the law applied concerning Shura Council provisions in the law no. 73 year 1956 organizing practicing political rights and provisions decided in articles 2, paragraph 3, 2, 7, 8, 10, 11, 12, 14, 19, 24, 25, 26, 27, 28, 30, 33, 34 39 of law no. 38 year 1972 concerning the parliament
The Constitutional text claimed to be violated:
Article no. 1 of the Constitutional Declaration issued in 25-9-2011:
The Arab Republic of Egypt is a democratic state based on citizenship. The Egyptian people are part of the Arab nation and work for the realization of its comprehensive unity.
Article no. 3 of the Constitutional Declaration issued in 25-9-2011:
Sovereignty is for the people alone and they are the source of authority. The people shall exercise and protect this sovereignty, and safeguard the national unity.
Article no. 4 of the Constitutional Declaration issued in 25-9-2011:
Citizens have the right to establish associations, syndicates, federations, and parties according to the law. It is forbidden to form associations whose activities are opposed to the order of society or secret or of militaristic nature. No political activity shall be exercised nor political parties established on a religious referential authority, on a religious basis or on discrimination on grounds of gender or origin.
Article no. 7 of the Constitutional Declaration issued in 25-9-2011:
Personal freedom is a natural right, safeguarded and inviolable, and except in the case of being caught in the act of violation, it is not permitted for anyone to be detained or searched or to be freedom restricted, or movement prevented, except by a warrant order compelling the necessity of investigation or to safeguard the security of society. This warrant order shall be issued by a specialized judge or the general prosecutor, according to the law. The law also determines the period for which one may be detained.
Article no. 32 of the Constitutional Declaration issued in 25-9-2011:
The People’s Assembly Council will be composed of a number of members determined by law to be at least 350, half of whom at least will be Workers and Peasants. The members of the People’s Assembly Council will be elected by a direct, public and secret election. The law stipulates the definition of a Worker and Peasant, as well as the electoral districts that the state will be divided into. It is possible for the president of the republic to appoint in the People’s Assembly a number of the members, not to exceed 10.
Article no. 35 of the Constitutional Declaration issued in 25-9-2011:
The Shoura Council will be composed of a number of members determined by law not to be fewer than 132 members, two-thirds of whom will be elected by direct, public and secret voting (at least half workers and half peasants), and one-third of whom will be appointed by the president of the republic.
The law determines the electoral districts for the Shoura Council.
Article no. 37 of the Constitutional Declaration issued in 25-9-2011:
The Shoura Council will assume its responsibilities upon election. It will study and recommend what it views as necessary to preserve support for national unity and social peace and protect the foundational elements of society and its highest values, in addition to rights, freedoms and general obligations. The Council will consider the following;
- 1- The project of general planning for economic and social development
- 2- Draft laws referred by the president of the republic.
- 3- Whatever the president of the republic refers to the Council on subjects related to the state’s public policy or policies related to the Arab and foreign affairs.
The council will notify the president and the People’s Assembly Council of its opinion on these matters.
Article no. 38 of the Constitutional Declaration issued in 25-9-2011:
The law will govern the right of candidacy for the People’s Assembly and Shoura Councils according to the determined electoral system including at a minimum the participation of women in both assemblies.
Article no. 39 of the Constitutional Declaration issued in 25-9-2011:
The law determines the conditions that must be met for members of the People’s Assembly and Shoura Councils, stipulating electoral and referenda provisions. A supreme commission made entirely of judges will assume the responsibility of supervision elections of referenda, from the determination of electoral schedules to the announcing of election results, all as regulated by law. Voting and the counting of votes will take place under their higher councils, and the decision in the process of choosing them will undertaken by the supreme commission.
Article no. 41 of the Constitutional Declaration issued in 25-9-2011:
Electoral procedures will begin within months of the publication of this Announcement. The Shoura Council will assume its duties with elected members, upon his election, the president of the republic will appoint the final third of the Council’s membership, who will serve out of the remainder of the term of the Council as regulated by the law.
Appealed Against: Head of the Supreme Electoral Committee – Head of the Supervising Committee Over Shura Council elections in Luxor
Verdict Text: The court ruled of:
First: non constitutionality of the first paragraph of the article 2 of the law 120 year 1980 concerning Shura Council replaced by the decree of law 109 year 2011
Second: non constitutionality of the first paragraph of the article 8 of the law 120 year 1980 concerning Shura Council replaced by the decree of law 109 year 2011 of giving the right to submit a request of candidacy for Shura Council in the districts determined to elect in the individual system for those who belong to political parties besides the independents who do not belong to parties
Third: non constitutionality of the article 24 of the same law replaced by the decree law of 109 year 2011 stating that provisions of the 9bis A article will be applied on Shura council of law no. 38 year 1972 concerning the parliament
Fourth: determination of a date of convening the new parliament in a date to apply the result of this verdct in accordance to the article 230 of the constitution