Official Journal – Issue No. 22 (bis) on 03 June 2013
21
text of articles (189) and 189 Ibid in 1971 constitution, according to which election of
members of the constituent assembly is confined to un-appointed members in
People’s Assembly and Shura Council, within appointments and procedures
prescribed in such text, which didn’t present any provisions that should be taken into
account on drafting the new constitution. Such approach emphasizes that the
constitution legislator wanted to produce all stages of drafting the new constitution,
starting from meeting with the electoral body vested with the mission of appointing
the constituent assembly, represented in the un-appointed members of the People’s
Assembly and Shura Council, then, appointing members of such assembly, and
exercising their missions in accordance with the controls they set, without any
interference by any of the three powers; legislative, executive or judicial., till
completion of that mission by drafting the constitution, taking into consideration that
work of such constituent assembly, at all stages, will be subject to the control of the
people, being the source of all powers, and exercise them on submitting the
constitution draft to referendum, to accept it or reject it, as they might wish.
Whereas in light of the above, the power given to the constituent authority drafting the
constitutional document is higher that all other state powers since it is a result of the
work thereof, being the power establishing all other powers. Hence, neither the
composition of such power nor the method through which it conducts work thereof
can be subject to the supervision of any entity which it establishes.
Also, neither the lower nor the upper houses of the parliament were asked to form the
Constitution Constituent Assembly. Instead, such task was assigned to an electoral
assembly that had a distinctive formation independent from the two legislative
councils. Through this electoral assembly, MPs that are not appointed elect the CCA
which is responsible for drafting Egypt's new constitution. If the constitutional
legislature wanted the legislative council to play a role in the work of such committee,
it would have explicitly said so at the time the amendments were introduced to the
1971 constitution in the aftermaths of the revolution which broke out on January 25,
2011. It could have also stated so in Article (60) of the Constitutional Declaration
promulgated on March 20, 2011.
Whereas it is established that legal texts, regardless of content thereof, shall be
regarded as tools used by the legislature for regulating a certain issue. Also, through
linking such texts to objectives thereof, and assuming legitimacy thereof, and the
presence of rational connection between them, the constitutionality of such texts are
determined.
This being so, and even though the legislature, through law No. 79/2012, has
interfered, according to title thereof, to set the criteria for electing members of the
CCA for drafting a new constitution for the country, it deviated from such objective,
despite the fact that it is not entitled to interfere with the regulation thereof in the first
place based on the above. The legislature, instead, regulated another matter that has
nothing to do with the title it gave to this law, where it said that the decisions issued
by the joint meeting of the members not appointed in the People's Assembly nor the
Shura Council with regards to the election of the CCA members shall be reviewed by
the body responsible for monitoring the constitutionality of parliamentary laws and
decisions. By doing so, it exceeded the limits of the legislative mandate thereof, hence
violating Article (115) of the Constitution. Thus, a verdict shall be issued to rule the
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