Egypt's political future hangs in balance as Constitutional Court prepares to issue key rulings

Salma Shukrallah, Wednesday 13 Jun 2012

Political and legal experts outline likely outcomes of Thursday's key constitutional court rulings on Parliamentary Elections Law, Political Disenfranchisement Law

Tahrir Square
Egyptian protesters shout slogans during a demonstration against presidential candidates Mohamed Morsi and Ahmed Shafiq at Tahrir Square in Cairo (Photo: Reuters)

The future of the parliamentary and presidential elections hangs in the balance as the country awaits the verdict on the constitutionality of both, which are due to be announced Thursday by the High Constitutional Court (HCC). The rulings could potentially alter Egypt's transition to a civilian authority.  

Legal background

On 20 February, 2012 parliamentary electoral law was referred to the HCC on the grounds that political party candidates had been permitted to contest one-third of the parliamentary seats reserved for individual, non-partisan candidates, thus violating the constitutional principle of equal opportunity.

Meanwhile, on 23 April Egypt's Parliament enacted the Political Disenfranchisement Law, which stipulated that individuals who served in top positions during the last ten years of Hosni Mubarak’s rule would be ineligible to enter the presidential race or run for public office for the next five years. The new piece of legislation was approved by the Supreme Council of the Armed Forces (SCAF) after it had been referred by Parliament on 17 April.

On 24 April, the Supreme Presidential Electoral Commission (SPEC) implemented the law, disqualifying presidential candidate and Mubarak's former prime minister Ahmed Shafiq. Shafiq appealed the SPEC decision the following day, contesting its constitutionality.  In response, the SPEC referred the law to the HCC on 12 May and accepted Shafiq's appeal.

On 5 June the State Commissioner's Authority, judicial advisory body to the HCC, announced in a written statement its legal analysis of the issue declaring that while the law, in its opinion, was unconstitutional, it is not in the SPEC's jurisdiction to refer the law to the HCC. However, in the same document, the State Commissioner's Authority also added that, due to the fact that the SCAF and the Parliament had approved the law, the legislation should have been enacted and so Shafiq should not have been allowed to run.

The HCC announced it would issue its final verdict on the Disenfranchisement Law and the parliamentary elections on 14 June.

Legal and political experts, speaking to Ahram Online, outline several possible verdicts and their impact on Egypt's political roadmap.

Parliamentary elections are considered unconstitutional

A possible scenario is that the constitutional court would rule the parliamentary electoral process as a whole unconstitutional. In this case, legal experts expect Parliament to be dissolved and new parliamentary elections held.

According to legal expert Mohamed Hamed El-Gamal if the parliamentary elections were found unconstitutional and both houses of parliament were dismissed, then the Constituent Assembly appointed by Parliament on Tuesday, would be dissolved as well.

However, Law professor Hossam Eissa argues that because legislation declaring the Constituent Assembly's existence and its mandate was issued on Monday, it is unlikely the constitution-building body would be dissolved. This is due to the fact that all issued parliamentary laws, would remain valid, even if the Parliament is dissolved.

Nevertheless, should the Parliament be dissolved, the SCAF would replace the political body and may have the legislative authority to dismantle the Constituent Assembly.

There are fears that the presidential elections would be affected by the dismantling of Parliament as many of the presidential candidates entering the race did so by garnering the required support of 30 elected MPs or by being nominated by a party holding at least one seat in the legislature. According to El-Gamel, any parliamentary recommendations or nominations made to qualify presidential candidates would remain valid even if Parliament is dismantled.  

The elections for Parliament's individual candidacy seats are found to be unconstitutional  

If the court rules that the way the individual candidacy seats were elected is unconstitutional and thus they are void, elections will only be repeated for these seats and not for the remaining two thirds of seats dedicated to party lists.

In this case, according to Eissa, the Parliament will then be temporarily suspended until its dissolved seats are voted in, during which time the SCAF would take over the legislative body's authorities and be able to choose the Constituent Assembly.

The parliamentary elections are considered constitutional

If the HCC decides that the individual candidacy seats were fairly elected, then the parliamentary elections would be considered constitutional and the Parliament in its current form would remain as it is.

The High Constitutional Court decides the SPEC was not authorised to refer the Disenfranchisement Law

According to a HCC's advisory body, the SPEC did not have the right to refer the Disenfranchisement Law to the constitutional court since it is a judicial administrative body and not a conflict-resolving body.

Should the HCC determine that its advisory body's findings are true, then the Disenfranchisement Law would be considered applicable. The electoral commission would then be expected to apply the law, thereby disqualifying Shafiq. Elections would, arguably, have to be repeated between the 12 remaining presidential candidates.

Eissa insists the SPEC would be obliged to apply the law if the constitutional court's verdict rules the electoral commission's referral unlawful, even though Article 28 of the military-authored Constitutional Declaration maintains that the SPEC's decisions are immune to appeal.

SPEC's secretary-general Hatem Bagato, in an earlier statement to Egyptian daily newspaper Al-Masry Al-Youm, said that should the Disenfranchisement Law be implemented, a referendum would be held for the approval or disapproval of Shafiq's sole competitor, Muslim Brotherhood candidate Mohamed Morsi as president. Eissa refuted these comments saying that this action is legally flawed and re-elections would have to take place.

The Disenfranchisement law would be found unconstitutional

Another possibility is that the HCC would consider the SPEC a judicial body qualified to refer laws and so begin looking into the Disenfranchisement Law.

In that case, the Constitutional Court may consider the law discriminatory as well as vague, in terms of application, as it warned in an earlier statement. Consequently, if the law is ruled unconstitutional, the presidential elections runoffs will go ahead on the 16 - 17 June as planned.  

The Disenfranchisement Law would be found constitutional

According to legal experts, the Disenfranchisement Law would only be accepted if the constitutional court affirmed it is an exceptional law that drew its legitimacy from the revolution and was legally issued by Parliament that would have cited case law in the form of former president Gamal Abdel-Nasser's exceptional legislation issued after the 1952 Free Officers Coup. This, the experts, who were speaking to Al-Shorouk newspaper on Friday, affirmed would be very unlikely.

Should the SPEC apply the law, Shafiq would be disqualified and the presidential elections would, arguably, have to be repeated.

Nevertheless, the SPEC may still utilise its immunity to appeal and therefore continue to ignore the law, although legal analysts have also refuted this possibility.

Most likely scenarios

Many of the legal and political experts interviewed by Ahram Online expect the HCC's rulings to be politically driven rather than legally determined.

"It is strange that a High Constitutional Court verdict would be issued in such a short period," said legal expert Ibrahim Yousry.

According to Yousry, rulings on the constitutionality of legislation, usually take years. Any law ruled unconstitutional, he further added, can only be treated as unconstitutional from the day the verdict is announced. In other words, Shafiq should be disqualified even if the verdict dismisses the Disenfranchisement Law, as the law should have already been implemented and the court's ruling cannot be applied retroactively.

However, Yousry also clarified that the situation is vague and confusing due to the SPEC's immunity to appeal, which could allow the electoral commission to apply or ignore any law as it sees fit.

"The state and its institutions are obviously biased towards Shafiq, while Morsi so far seems to be winning the race. It is unlikely the verdicts will mean halting the elections and reverting the democratic process because that may have serious consequences. However, it is likely these potential verdicts are being used as negotiating cards with Morsi," explained Yousry.

Supporter of former presidential runner Abdel-Moneim Abul-Fotouh and political analyst Ibrahim El-Hodeiby believes the most likely scenario is that nothing will be changed, as the Disenfranchisement Law would be considered unconstitutional and the parliamentary elections constitutional.

"I think Shafiq will become president and the Brotherhood will be offered the government instead. That way the Brotherhood will be made responsible for three difficult issues including the gas cylinders crisis, the shortage of bread and the shortage of gasoline," El-Hodeiby speculated, "In other words, the deep state [military, secret service and media] will work to make the Brotherhood lose popular support. The Brotherhood will agree to this deal because they do not want to be responsible for the presidency."

According to El-Hodeiby, the Brotherhood did not initially want to run in the presidential elections but were forced to do so, as the unity of the Islamist organisation was threatened by the candidacy of ex-Brotherhood member Abul-Fotouh, who had garnered the support of many Brotherhood members before Morsi was filed as their official candidate.

"The state is not a passive entity and will interfere to make the Brotherhood's plan fail. It considers the Brotherhood their main rival not because of ideological differences but because they are the only organised opposition force," Hodeiby said.

Eissa, on the other hand, believes the most likely scenario would be that the Disenfranchisement Law will be considered unconstitutional and the presidential elections will continue normally as planned. The verdict over the constitutionality of parliamentary elections, he believes, will be postponed.   

Another option, Eissa proffered, would be that the election of parliament's one-third individual candidacy seats are considered void and the parliament's activities would be suspended until the elections for the independents seats are repeated. The SCAF would then take over administrative power and have the authority to dismantle the parliament-chosen Constituent Assembly.   

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