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 11^th, 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 14^th, 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 8^th 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]