Parliamentary elections in Egypt
held between November 2011 and February 2012
demonstrate
the critical importance of the legal framework in the conduct of genuine
elections and the transition to democracy.
Elections to the lower house, the People’s Assembly (PA), also resulted
in judicial review of the electoral laws and ultimately a decision setting
aside the election.
Following a period of
popular demonstrations, and on February 11th,
2011, the resignation of President Hosni Mubarak, Egypt’s military Supreme
Council of the Armed Forces (SCAF) established itself as the transitional
authority and suspended the constitution. Parliament was dissolved and
elections would take place for the PA as well as the upper house, the Shura
Council (SC). Presidential elections
would follow. In addition, a Constituent Assembly (CA) would be formed and
tasked with drafting a new Constitution.
The electoral system
established by the Law on the People’s Assembly (LOPA)
in October 2011, provides for the PA to be elected in a mixed system where 2/3
of the 498 seats would be elected based on a closed “party list” proportional
representation (PR) system and the remaining third of seats elected in a
majoritarian system of two members per constituency (Individual Candidate seats
or IC). However,
under the system party candidates were allowed to run in individual candidacy
races and in effect, this resulted in political party candidates being able to
challenge all elected seats in parliament, while individual candidates could
only challenge one-third of the seats.[i]
It would be this provision which would ultimately result in the PA election being
set aside.
Observing the PA election, the
Carter Center noted that while there were shortcomings in the legal framework,
election violations and weaknesses in administration, “the
results appear to be a broadly accurate expression of the will of the voters.”[ii] However at the same time, the legal restrictions on individual versus
party-backed candidates had the effect that only
15 percent of individual candidate seats were won by candidates not affiliated
with any party. [iii]
The
PA election was challenged in court on the basis that it was unconstitutional
that party candidates could challenge individual candidate seats but individual
candidates could not challenge party-backed PR seats. On June 14th, 2012 the Supreme Constitutional
Court (SCC) ruled the PA election to be invalid citing three unconstitutional
articles of the LOPA and one of Decree 123/2011. The
essential fact found unconstitutional by the SCC was that the LOPA was
discriminatory by allowing party-backed candidates to challenge for individual
seats but not allowing associations of independent candidates to challenge for
the PR seats.[iv]
While
the second round of the Presidential vote was only days away, the SCAF issued a
decree dissolving the PA. Once elected
in June 2012, President
Mohamed Morsi, attempted without success on July 8th to reinstate the PA on an interim
basis by annulling the initial decree of the SCAF. As a result, new elections for the PA are
required.
Subsequently, in September 2012, the
Supreme Administrative Court (SAC) ruled to uphold the decision of the
SCC to dissolve the PA but the political debate continues. A legal
adviser to the Freedom and Justice Party, which held a plurality in the
dissolved People’s Assembly, describes the ruling as a ‘catastrophe in the
history of the Egyptian judiciary’ while others, including
former presidential candidate Amr Moussa called for respect for judicial rulings. [v]
Significantly, setting aside of the PA election, a
resulting dispute with the President and political controversy have been able
to be accommodated even though in a transitional environment. In no small part
this appears to be due to the role of judges, “and
because of the existence of Egypt’s well-established and well respected
courts.”[vi] The courts also seem determined to
face critics as did the SCC responding by denouncing, “’unacceptable
interference’ in the court's work, insisting that all the court's verdicts were
based on constitutional legitimacy, refuting claims they were politically
biased.”[vii]
It is noteworthy that the elections to the SC are also
being challenged before the courts on basically the same provisions as were
found unconstitutional in the case of the PA elections. This leads to
speculation, “it
can be expected that a similar decision will be reached in that case, as was
reached in the case concerning PA elections.”[viii] If the challenges are similarly
upheld then new elections would also be required for the SC.
The CA itself is also the subject to numerous court
challenges to its validity. Initially,
per the Constitutional Declaration, the CA must finalize its constitutional
proposal before December 11, 2012 following which a referendum would be held
within 15 days. In October 2012, the legal challenges were referred for
decision to the SCC and so the timetable for constitutional reform may be
impacted as well as the timing of the parliamentary elections.
Taken together the impact of legal challenges on the legal
framework is very significant:
These factors mean that it remains difficult to predict
with confidence how the next phases of Egypt’s transition will unfold.
Nevertheless, whatever the future holds for the constitutional drafting
process, at some point in the not too distant future, it will be necessary to
revise the Law on the People’s Assembly (LOPA). Potentially this will re-open
the thorny question of the electoral system.[ix]
The
role of the judiciary in interpreting the legal framework remains critical and
in the case of Egypt in particular, “With the nation increasingly polarised, and mistrust
between Islamists and other groups growing, Egypt's judiciary has emerged as a
final arbiter for settling most disputes.”[x]
This
case study also reinforces the notion that the legal framework does not exist
in a vacuum, as electoral system revisions, “were
not made in a static environment, but rather one in which the roles and powers
of various political, government and civil actors were constantly being
challenged and redefined.”[xi]
[i] International
Foundation for Electoral Systems (IFES), ”Elections in Egypt: Implications of Recent
Court Decisions on the Electoral Framework.” (Washington,
D.C.: IFES Briefing Paper, August, 2012), 3.
[ii] The Carter
Center, Carter Center Election
Witnessing Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report
on all Three Phases of The People’s Assembly Elections (Atlanta, GA:
News, The Carter Center, January, 2012), 1.
[iii] IFES, ”Elections in Egypt: Implications of Recent
Court Decisions on the Electoral Framework.”, 3.
[iv] Democracy
Reporting International (DRI), “What Electoral System for
Egypt?” (Briefing Paper
32, Democracy Reporting International, October 2012), 2.
[v] Egypt Independent Website. “Administrative court upholds ruling to
dissolve Parliament.” Edited translation from Al-Masry Al-Youm, September
23, 2012.
[vi] The Carter
Center, Carter Center Election Witnessing
Mission: Egypt 2011/2012 Parliamentary Elections. Preliminary Report on all
Three Phases of The People’s Assembly Elections, 15.
[vii] MSN News
Website, “Egypt court refuses reinstatement of dissolved
lower house of parliament.” September 23, 2012.
[viii] IFES, ”Elections in Egypt: Implications of Recent
Court Decisions on the Electoral Framework.”, 3.
[ix] DRI, “What Electoral System for Egypt?” 1.
[x] The Guardian. “Egypt constitution decision
referred to country's highest court.” October 23, 2012.
[xi] IFES, ”Elections in Egypt: Implications of Recent
Court Decisions on the Electoral Framework.”, 10.
