Were Egypt's first post-Mubarak parliamentary elections unconstitutional? Doubts to this effect emerged this week after the Supreme Administrative Court (SAC) on Monday referred several articles of the law governing parliamentary polls to the State Council, the legal body tasked with deciding disputes related to the exercise of state power. The State Council is now expected to request a decision from Egypt’s High Constitutional Court (HCC) regarding the conformity of the articles in question with the national constitution.
Even though the HCC will decide on the constitutionality of an election that saw political party members vying for the one third of assembly seats reserved for individual candidates, the shadow of the scenario seen in 2010 parliamentary polls continues to haunt Egypt’s post-revolution political scene.
In December of 2010, the legality of recently-concluded parliamentary polls was called into question by the SAC. The court eventually invalidated the results of two rounds of polling, ordering that the announcement of results be halted and demanding that the elections be declared void and that new elections be held. The ruling came after the Supreme Electoral Commission (SEC) had ignored hundreds of earlier rulings by administrative courts countrywide challenging the electoral process.
Despite the court's verdict, lauded by many at the time, the SEC ignored the SAC ruling. The new Parliament convened as usual, with then-president Hosni Mubarak hailing the polls as “transparent” and representative of the popular will.
"The case today is different than what we had under Mubarak,” Ahmed Mekky, former vice president of Egypt’s Court of Appeals, told Ahram Online. "The Administrative Court is challenging the law under which elections were held, not the procedures.”
Mekky went on to explain that the elections law approved by Egypt’s ruling Supreme Council of the Armed Forces (SCAF) had permitted members of political parties to vie for seats reserved for individual candidacies, violating the rights of independent candidates who were barred from contesting party-list seats.
Only one third of the seats in Parliament were elected on the basis of individual candidacies. But according to Mekky, it is too early to say whether the HCC will rule to dissolve the entire Parliament or only the one third in question.
In July, the government approved an electoral law by which 50 per cent of the seats in parliament would be reserved for proportional party lists, while the other 50 per cent would be reserved for individual candidacies. Later, in September, the SCAF announced a different breakdown, giving only one third of the seats to individual candidates not affiliated with political parties – a move ostensibly intended to prevent Mubarak regime holdovers from getting a foothold in Egypt’s new Parliament.
Political parties, especially the Muslim Brotherhood’s Freedom and Justice Party (FJP), objected to the restriction, threatening to boycott the races if their members were prevented from contesting all seats in the assembly. The SCAF eventually yielded to the pressure, making the desired changes before elections finally kicked off in November.
In a statement published on the Brotherhood’s official website, Mukhtar Ashri, head of the FJP’s legal committee, ruled out the possibility that a new ruling by the SAC would challenge the new Parliament’s legal or constitutional legitimacy.
"The existing Constitutional Declaration is a provisional constitution and the recent elections were held according to its terms,” he said. “These attempts to play with the Constitutional Declaration are simply meant to destroy the political process that was based on the declaration from the outset.”
The FJP won just shy of half the seats in the People's Assembly, while the Salafist Nour Party captured some 25 per cent. Both parties were accused by their political rivals of using religion to influence voters, with many saying they would not have achieved the same results had parliamentary polls been postponed until after a new national charter had been ratified.
Now that the new Parliament’s constitutionality has come into question, the role the new assembly is expected to play has also been challenged. On Wednesday, reform campaigner Mohamed ElBaradei – who quit the presidential race before it even began – demanded that the process of appointing the constituent assembly mandated with drawing up a new constitution be postponed.
Egypt’s Parliament, both the People’s Assembly (lower chamber) and the Shura Council (upper, consultative chamber), is supposed to choose the 100-member council that will draft the constitution following a joint meeting of both chambers slated for the end of February.
"The SAC has ruled that the [parliamentary] elections were unconstitutional and has referred the electoral law to the HCC, so how can such a parliament appoint a constitutional council before the HCC has its last word?" ElBaradei asked on Twitter. "In such a constitutional, political and legal absurdity, isn't it about time to reconsider the [electoral] road map that is becoming more complicated day after day?”
From a legal point of view, however, judge Mekky does not see a problem in the fact that a parliament that could be considered unconstitutional would proceed with choosing members of the constituent assembly. "According to the law, if the HCC decides to dissolve Parliament and order fresh elections, the procedures and laws passed by this Parliament will only be considered void from the date on which the verdict is announced," he said.
According to Mekky, even if the new Parliament is unconstitutional, the constituent assembly can nevertheless proceed with drafting a new constitution.
"I hope the HCC won’t announce its verdict until the 100-member assembly is chosen and the new charter drafted," he said. "We really must put an end to the mess of the transitional period that began with the March referendum on constitutional amendments. Every step that we’ve taken since the SCAF assumed power could be legally questioned, so it’s better if we put an end to all this and consider the new constitution a fresh beginning.”
Ultimately, until a final verdict on the issue is handed down by the HCC, there remain two possible scenarios. Either the court will find the electoral law constitutional, putting an end to the question once and for all, or the law will be found unconstitutional, opening the door to the possible dissolution of Parliament – or at least one third of it – and fresh elections.
In any event, as was the case following 2010 polls, it will be up to the president – or the SCAF, which currently exercises executive authority – to decide the fate of Egypt’s first democratically elected People’s Assembly in living memory.