A forthcoming Supreme Constitutional Court (SCC) ruling may jeopardize the long-anticipated parliamentary elections, currently slated for March.
Candidate registration for the elections came to a close on Saturday, February 21, but the fate of the elections has been in the air since the Cairo Administrative Court accepted six appeals against the Electoral Law, the Constituency Division Law and the Political Rights Law. The Supreme Constitutional Court started looking into the cases on February 15, and is set to issue its decision on Wednesday. If the appeals are upheld, voters will have to wait several more months to cast their ballots.
The parliamentary elections are the last remaining step in the military-designed transitional roadmap to democracy, which was announced by then-Defense Minister Abdel Fattah al-Sisi, after former President Mohamed Morsi was removed from power in July 2013.
On June 5, 2014, former interim President Adly Mansour issued the Electoral Law before ending his brief tenure at the helm of the country. The more complex Constituency Division Law took longer to put together, and was finally issued in December of the same year. Neither law was well received by several political forces, who argued that the legislation favors more widely known, wealthier public figures over newer political parties.
As a result, the political arena remains divided, with some parties opting to boycott the elections as others prepare for the ballots. But will the Supreme Constitutional Court rule against the contentious laws and further delay the elections? And if so, how would that affect the upcoming parliament?
An indication of the court’s mood can be seen in the SCC commission staff’s report, issued earlier this week. The report upheld four of the six appeals, and recommended ruling the parliament laws unconstitutional. Although the commission’s decision is not legally binding, local media outlets have seen this as a sure sign that elections will be postponed.
The Electoral Law
Youssry al-Azbawy, head of the Egyptian Political System Program at Al-Ahram Center for Political and Strategic Studies, believes that the court will most likely rule the laws unconstitutional due to small technicalities.
He points specifically to Article 6 of the Electoral Law, which states that female MPs can only be dismissed from parliament if they change their political party or independent affiliation after elected. This protection doesn’t extend to male MPs. The appeal against this article says it contradicts Article 11 of the Constitution, which holds, “The state shall ensure the achievement of equality between women and men in all civil, political, economic, social and cultural rights, in accordance with the provisions of this Constitution.”
Former Social Solidarity Minister Ahmed al-Borai is a leading member of the Democratic Current, an electoral alliance of civil forces, and shares several of his fellow politicians’ concerns about the legislation. He points to another technical detail in the Electoral Law that governs the candidacy of Egyptians living abroad.
Article 5 states that a candidate for parliamentary elections must be Egyptian and have an Egyptian father, and cannot have dual citizenship. But Article 102 of the Constitution dictates that candidates must be of Egyptian citizenship without barring dual citizens from running.
“The law restricts the representation of Egyptians living abroad in the upcoming parliament,” Borai argues.
The Electoral Law also stipulates that two-thirds of the seats in parliament (420 out 540) are allocated to individuals, while the remaining third of the seats (120) are elected through an absolute list system, by which the winning party in each electoral constituency gets all the seats.
Yasser Kassab, the head of the Regional Center for Parliamentary Studies and Consultancy, argues that the division of seats does not defy the Constitution, despite the reservations of the younger parties. These critics worry that their limited ability to mobilize public opinion, as compared to better-known independent candidates, will be a barrier to their representation in parliament. They argue that more space should be devoted to party platforms as opposed to individual candidates, in order to keep voters focused on programmatic politics and mitigate personal favoritism for powerful, wealthy individuals.
Kassab would have preferred the upcoming parliament to be equally divided between electoral lists and individual candidates, but he says that the current division is not exactly faulty.
“If the parties prove themselves this time around, the law can be amended for future parliaments,” he adds.
The Constituency Division Law
The Constituency Division Law is another major concern for political players intending to take part in the elections.
The law was appealed on the basis that it violates constitutional Article 102, which states, “Other candidacy requirements, the electoral system and the division of electoral constituencies shall be defined by law in a manner which observes fair representation of the population and governorates and equitable representation of voters.” The appeal claims that the Constituency Division Law does not provide for a fair representation of the population, nor of the voters.
The law distributes independent candidates across 231 constituencies with a total of 420 seats, while electoral lists are divided between four constituencies for a total of 120 seats. However, critics argue that the law assigns a different numbers of candidates to certain governorates, even though these provinces have a similar number of residents or voters.
Political Rights Law
Another appeal was filed against Article 25 of the Political Rights Law, which stipulates that independent candidates can spend LE500,000 maximum on their campaigns, and double this amount for every 15 candidates on an electoral list. Detractors argue this favors wealthy candidates or those with financial backing.
Given this article, Borai worries that candidates with deep pockets will use capital funds to win the elections, particularly considering that the majority of parliamentary seats will be handed to independent candidates.
“We want MPs who are intellectual and have political experience, but capital will give us candidates without proper experience,” he says.
The potential impact of the SCC ruling
If the SCC rules in favor of the appeals, Azbawy says the whole process — which was over a year and a half in the making — would essentially start over from scratch.
“They would have to postpone the elections in order to amend the laws, and it would render all of the previous procedures invalid,” he says. “It would take a very long time.”
But even if the elections are postponed, it would have no effect on the political process in and of itself, Azbawy contends. In general, the laws have “constitutional faults in the form of small, technical details, but the larger electoral system is consistent with the Constitution,” he explains.
Azbawy refers to constitutional Article 102, which states, “Elections based on the plurality voting system or proportional list, or a combination of both at whatever ratio, may be adopted.” Given that article, he thinks that the main structure of the parliamentary elections will not change.
Upholding the appeals “would postpone the process of democratic transformation, and the third step of the democratic roadmap,” Azbawy says. “But in my opinion, even if the elections were postponed for three years, the political parties would remain the same.”
Like Azbawy, political analyst Mohamed Naiem doesn’t believe postponing the elections would make that much of a difference.
“The elections don’t have a large demand from the people. The people are not interested in the upcoming parliament,” Naiem claims.
The courts vs the government
The judiciary has had a long antagonistic relationship with the parliament. In June 2012, the SCC dissolved the Muslim Brotherhood-dominated Parliament shortly before the presidential elections. The Brotherhood accused the court of being politicized and attempting to sabotage its party.
According to Naiem, parliaments have been dissolved or ruled unconstitutional since the 1980s for reasons similar to those behind the current imbroglio, particularly regarding the unequal representation of candidates in proportion to the number of voters.
“The reasons have been both legislative and politically fueled,” says Naiem. “The political side is definitely present in those decisions.”
Naiem argues that the laws have flaws written into them from the start with the possible intention of dissolving parliament — or in this case, postponing the elections. In the current circumstances, the post-Brotherhood transitional government and Sisi’s administration have been single -handedly issuing laws for a year and a half in the absence of an elected government.
“This last period has proven that the judiciary is not independent,” Naiem argues.
Borai believes that the parliament could be a mechanism for more participatory political practice, especially since the government has been passing major legislation by fiat since 2013. He’s therefore particularly frustrated at the lack of unity among civil political parties ahead of the elections.
“As the Democratic Current, we don’t want the parliament to be dissolved,” he explains. “We will have to go through the elections, and hope that the parliament can create a way for the Constitution to be translated into legislation, and for it to become a true monitoring mechanism of the government.”