Who oversees Egypt’s controlled drugs? Constitutional court ruling reignites question over health sector powers

The Supreme Constitutional Court (SCC) ruled on Monday to invalidate a 2023 decision in which the Egyptian Drug Authority reclassified drugs controlled under the anti-narcotics law, holding that only the health minister is authorized to issue such decisions.

The decision, taken by EDA head Essam Tamer, upgraded the classification of methamphetamine and other synthetic drugs to the most severe category, rendering people implicated in the unlawful production, licensing, supply and possession of these drugs liable for the most severe penalties under the law on controlled substances.

While the SCC ruling brought renewed attention to the murky lines of authority in Egypt’s pharmaceutical sector, it set off immediate legal repercussions. 

Lawyers and judges described it as a “legislative earthquake” that will  pave the way for the acquittal of thousands of people convicted of possession or trafficking the drugs that were reclassified in 2023 and sentenced to terms ranging from one year to life imprisonment.

Under Article 49 of the Supreme Constitutional Court Law, once the ruling is published in the Official Gazette, the provisions criminalizing possession and trafficking of narcotics as per the EDA-issued schedules are rendered void, Amr Abdel Salam, a lawyer who has prosecuted cases at the Court of Cassation and the SCC, told Mada Masr. 

Courts will also need to work out in the coming months how to implement the decision in ongoing cases.

Multiple parties that will be involved in litigating cases affected by the SCC ruling gathered on Tuesday, according to an informed judicial source, who said that the public prosecutor called the meeting with advisors and representatives from the health and interior ministries, the EDA, the Fund for Combating and Treating Addiction and Abuse and all other entities involved in implementing the ruling. The aim, the source said, was to assess how the ruling will affect drug cases at all stages, from investigation to final verdict.

The SCC’s ruling also required that the health minister urgently issue a decision introducing new drug classification schedules, in order to prevent a legal vacuum that could enable trafficking or abuse, Abdel Salam said, until such time as the legislature amends the law and explicitly grants the powers to the EDA.

The health minister accordingly issued a decree on Tuesday replacing the annulled schedules with new ones — although these were identical to those that were struck down.

Magdy Morshed, deputy head of the House of Representatives Health Committee, also told Mada Masr that the committee will also hold an urgent meeting to make the necessary amendments to Anti-Narcotics Law 182/1960 to avoid a legislative vacuum.

The constitutional dispute stems from a criminal case in Sohag in which a defendant was convicted by the Sohag Criminal Court for the unintentional possession of methamphetamine, and was sentenced to three years in prison and fined LE50,000.

Both the defense and the Public Prosecution appealed to the Court of Cassation. The defense argued flawed reasoning, corruption and violation of due process. The prosecution, meanwhile, appealed on the grounds that the sentence fell below the minimum penalty after methamphetamine was moved into the most severe category of narcotics by Tamer’s 2023 decision.

On October 26, the Court of Cassation referred the appeal to the SCC to determine the constitutionality of the EDA head’s authority to amend the drug schedules.

The referral noted that the 2019 law establishing the EDA does not explicitly empower its head to amend the schedules annexed to the Anti-Narcotics Law. Rather, it replaces the Health Ministry with the EDA in matters related to pharmacy practice regulation and the oversight of registration, circulation and control of pharmaceutical products and supplies.

The SCC’s Commissioners Authority, in a December 31 report Mada Masr obtained, had recommended that the appeal be rejected, reasoning that the EDA’s broad mandate over all matters related to regulating, registering, circulating and controlling medical products and raw materials — including narcotics — implicitly means the transfer of powers to amend the classification of narcotics control.

But the court ultimately rejected that interpretation, siding instead with the Court of Cassation’s reasoning that the EDA is not authorized to reclassify drugs. 

Although the SCC’s ruling settles — at least until the House reformulates the law  — the question of who is authorized to classify narcotics in favor of the health ministry, the case also touches on a longstanding dispute over pharmaceutical governance.

According to a health policy researcher, the ministry appears to be holding on to certain files to maintain “political advantage” within a sector where authority remains “scattered” between the ministry and the EDA established in 2019. One example is the essential medicines list, which remains under the ministry’s control, something the researcher discovered in discussions with an EDA official. In her view, the ministry is unlikely to relinquish this file given the leverage it offers amid what she described as political competition over it.

Among these jurisdictional disputes was the question of the drug schedules, which arose after the creation of the EDA over who held the legal authority to amend them.

According to a source at the EDA, the dispute was not over the legitimacy of updating them. In an explanatory memorandum attached to the EDA’s 2023 reclassification, Essam stressed that lab-made narcotics pose a serious threat, arguing that the classification at the time failed to account for technological advances and chemical modifications designed to circumvent criminalization.

Continuous revision is assumed under the law and is routine, said the EDA source, given the evolving narcotics market. Instead, the source clarified, the dispute was over which entity was legally empowered to carry out those amendments.

The matter had previously reached the Administrative Court in the State Council in 2013 and resulted in a legal opinion favoring the EDA, according to a second EDA source. The court held that the broad delegation of powers contained in the law establishing the EDA encompassed all of the health minister’s powers under the pharmacy profession practice law, including registration, inspection, pricing and amending the drug schedules.

On that basis, the EDA continued issuing amendments in coordination with a tripartite committee comprising representatives of the health, justice and interior ministries. The most significant of these came in 2023, when Tamer rescinded all previous schedules and introduced new ones.

Monday’s SCC ruling overturns that arrangement, stripping the EDA head of this power and returning it to the health minister.

A Health Ministry official said, however, that there has been no “fight” between the ministry and the EDA. The ministry had not objected to the EDA’s past amendments, the source said, adding that while the EDA “must play a technical role,” the minister issues the final decision.