Two ways to deal with ruling declaring election laws unconstitutional

Ziad Bahaa-Eldin
Wednesday 4 Mar 2015

There are two ways of looking at the ruling handed down on Sunday by the Supreme Constitutional Court (SCC)

The Court declared Article 3 of the law on electoral districting unconstitutional, which means it must be amended before the coming parliamentary elections are rescheduled, days before they were due to start. 

The ruling could be seen as just a technical glitch that can be rectified by forming a committee, amending two or three articles of the law, and rescheduling election procedures. Seen this way, it’s a simple matter of little concern.

The elections will be postponed for two or three months, which is not a significant delay given that they are already more than a year behind the constitutionally mandated schedule. And in any case, parliament is not the most pressing issue when seen against the economic and security challenges facing Egypt.

Moreover, the legislative process need not come to a halt since the president has the authority to issue laws in the absence of a parliament. This is one way of looking at the SCC ruling, and I imagine that many close to power will be adopting this outlook in the next few days to minimise the significance of the ruling and portray it as a simple difference of legal opinions and an easily remedied procedural blip. 

Or we could pause to consider the significance of the ruling and realise that it highlights a major defect in the way lawmaking is conducted in Egypt. We could grapple seriously with the issue, with a modesty that permits recognising mistakes and learning from them. Several questions need to be answered.

Why was the law issued in this flawed form to begin with? Who is responsible for it? Why didn’t the state respond to the opinions, appeals, and published statements by legalists and constitutional experts who urged a reconsideration of the entire electoral system?

Why is it that since the January revolution, and in spite of discussions, meetings, and serious attempts to chart out a sound political course with the participation of political and civic forces, constitutional declarations and laws kept being imposed on us without anyone knowing where they come from? Shouldn’t we at least identify what makes Egypt, of all the countries in the world, unable to organise normal parliamentary elections? 

In fact, this ongoing legislative confusion has specific causes, but they are rarely addressed. The first is the expansive exceptional legislative authority granted to the president under the constitution, which as a rule should be limited to necessary matters.

And here, let's remember that in the 50 months since the January revolution, Egypt has had a parliament for only seven of them. For the other 43 months, laws were issued via an exceptional process: for ten months by the Supreme Council of the Armed Forces, a year by former president Mohamed Morsi, about eight months by former president Adli Mansour, and the rest by President Abdel El-Fattah El-Sisi.

These exceptional powers are necessary and without them the country would fall in a state of legislative vacuum. But along the way, we seem to have forgotten that this is an exceptional authority, to be used only in cases of necessity, in matters subject to general public agreement, and following some process of consultation. Instead, the exception has become the norm, and a chance to push through as many controversial laws as possible before the election of a parliament. 

A second cause of the muddle is the confusion about who should draft the laws to be sent to the president. There is the Ministry of Justice and its venerable legislative directorate. There is the State Council, which has formal jurisdiction in matters of legislation and has over the decades established itself as distinguished legal school stretching back to the era of Egyptian law giant Abd el-Razzeq el-Sanhouri. And there are law schools and professors who help write laws across the entire Arab world.

Moreover, since lawmaking is not simply a matter of drafting articles, but involves technicalities that have their own experts, it’s only natural that the process requires the input of hundreds of associations, organisations, unions and industrial federations, and political parties, each within their area of expertise. In fact, however, this entire massive social structure is ignored.

No one knows exactly who is responsible for drafting legislation; laws are prepared by obscure committees of unknown prerogatives and expertise. The lack of one official body to write laws, as well as draft a legislative program, implement it, and identify priorities must be addressed. 

The third and final reason is that political conflict has overshadowed all else in Egypt, including the legislative process. With its opaque mechanisms, the current process does not constitute an open contest among various social and economic outlooks and visions, but instead expresses a political struggle between parties within the state and out of it. Each party seeks to impose its own opinion, fill the vacuum, and secure its interests through the legislative process. 

And just as there are two ways of looking at the Constitutional Court ruling, there are also two ways of dealing with it. We could just form a committee, amend the problematic articles, and move forward with elections as planned. Or we could re-examine the serious defects in lawmaking mechanisms, to ensure that only necessary, consensual laws are issued pending the election of a new parliament with support from specialised bodies with the requisite expertise, and separate the lawmaking process from the political conflict among various vested interests within the state.

Those truly concerned with the preservation of state stature and the stability of its institutions should realise that this legislative confusion is seriously damaging, undermining state credibility and fostering doubt in its legal institutions. 

Which of the two paths will we choose?

- Ziad Bahaa-Eldin holds a PhD in financial law from the London School of Economics. He is a former deputy prime minister, former chairman of the Egyptian Financial Supervisory Authority and former chairman of the General Authority for Investments.

This article was published in Arabic in El-Shorouq newspaper on Tuesday 3 March.

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