CAIRO – When voters went to the polls more than a year ago to vote for Egypt's upper house of parliament, most presumed the legislature would be the powerless talk shop that it had always been for 30 years. Few candidates were known outside their families, parties or neighborhoods. Only seven percent of the electorate bothered to cast a ballot.
Thanks to the twists and turns of the rocky transition that followed Egypt's 2011 uprising, the Shura Council is now the sole law-making body in the land. The legislature found itself in this unexpected position after a court dissolved the lower house of parliament, prompting an Islamist-led panel that drafted the new constitution to include a clause handing the council legislative powers until a new parliament is elected.
Like the lower house before it, the Shura Council now finds its fate in the hands of the courts. On Sunday, Egypt's constitutional court is expected to rule on the legality of the legislature's election, which was conducted under the same law as the lower house that was disbanded on an electoral technicality.
It's well within the realm of possibility that the court could order the Shura Council to dissolve — and may even render its works invalid, including the country's Islamist-backed constitution, bringing Egypt's political process back to square one. Such a move, while far from certain, would push Egypt into legal limbo and could trigger a new political crisis.
Much of the criticism of the council stems from its shaky popular foundations.
Of the legislature's 270 members, 180 are elected with the other 90 being appointed by the president — a throwback to its days under Hosni Mubarak, the authoritarian leader ousted in 2011, when the legislature's seats were often sinecures for loyalists or favored members of the opposition. Today, five percent of its members are Christians — about half the proportion of the population — and four percent are women.
When elections were held in early 2012, not only did many voters stay away but so did many political parties — especially several of the newborn liberal groups with smaller budgets. Over 70 percent of the seats were taken by Islamists.
The Freedom and Justice party, the fundamentalist Muslim Brotherhood's political wing, holds 42 percent of the council's seats. Together with allies like the Wasat party and the ultraconservative Construction and Development party — the political arm of the former militant Gamaa Islamiya group — the Brotherhood can easily muster nearly 60 percent of the votes to pass favorable bills.
Liberals and critics say that Islamists have been using their majority to ram through their agenda — a departure from pledges to postpone such issues until a new lower house of parliament, known as the People's Assembly, is elected.
They also allege the Islamists have used the council as a powerful tool to shake-up institutions perceived as bastions of Mubarak loyalists, to make cuts in the state budget that target — among other things — the arts and women's programs deemed by Islamists as unnecessary or immoral, and rush through laws rife with loopholes.
"The Shura Council, in its current form, has turned into a speedy machine to pass faulty laws that provoke argument and divisions rather than ... solve a problem," wrote political scientist Hassan Nafaa in a Saturday column in the Al-Masry Al-Youm daily.
Despite its disputed position, the council has taken on an ambitious agenda: a judiciary bill that has ignited a revolt among judges; a new bill for Islamic bonds that has sparked fears of opening a backdoor for foreigners to take over state-owned assets; and a bill to regulate civil society that rights groups complain will harden state control over non-governmental organizations through scrutinizing their funds.
It's the council's seemingly activist stance that rankles many of its critics, who feel that because of the legislature's shaky mandate it should shy away from contentious issues.
Mohammed Fouad Gadallah, a former top Morsi adviser who resigned to protest what he called the Brotherhood's monopolization of decision making, said the council should serve as a parliament only in "exceptional circumstances."
Liberal lawmaker Ihab el-Kharat from the Egyptian Socialist Democratic Party said he received personal assurances from "the head of the council that it will only tackle very limited issues related to the transitional period but defining what is important to this period is vague."
The council's supporters dismiss the criticism, and say the council's legislative role is enshrined in the constitution.
"The respectful members of the Shura Council ... alone have full legislative authority, assigned to them by the Egyptian people," said a statement by the Consciousness Front, a group composed primarily of Islamists who helped draft the constitution. "The constitution didn't talk about an exceptional, partial nature or give conditions of (legislating) only when necessary."
The statement said the Shura Council has been tasked with realizing "the dreams and ambitions of the citizens in achieving justice, righteousness, and equality."
One particularly divisive bill before the Shura Council aims to tackle judicial reform. Islamists say it is necessary to sweep away judges who support Mubarak and are undermining the transition to democratic rule. Many Egyptians, including Morsi's Islamist rivals, fear rushing the law that would lower retirement age for judges from 70 to 60 — thus pushing thousands of veteran judges into retirement — would neuter the one branch of the government that is not under Brotherhood control.
Morsi's allies describe Egypt's judiciary as a refuge for Mubarak loyalists bent on blocking their agenda. It was partially to prevent the court from dissolving the Shura Council that Morsi in November 2011 took what was possibly the most controversial move of his presidency, a wide-ranging decree that included putting his own decisions above court review and making the Shura Council "immune" from court dissolution.
Morsi's opponents saw that decree as a dictatorial power grab, and took to the streets for weeks of protests. Morsi ultimately backed down, but the bitterness and polarization it caused have become a constant in Egyptian politics.
Liberal lawmakers — and their unlikely allies in the ultra-conservative Nour party, who also fear the Brotherhood's power — complain that the head of the committee debating the judicial reform draft law rushed it through even though a majority of members voted to table debate. The committee head could not be reached for comment.
Now, all eyes are on the judicial decision Sunday.
"The ball is with the Constitutional Court. It could rule either way: disband or not disband," said Yousseri Abdel-Karim, a judge for one of Egypt's top courts. "This could mean calling for new elections, both parliamentary and presidential, and the formation of new constitutional panel to write a new constitution."
If that happens, Egypt's political transition — already disrupted multiple times in the last two years — will be thrown into limbo once again.