Supreme Constitutional Court rejects draft election law

Egypt’s Supreme Constitutional Court has rejected a draft election law submitted by the Shura Council - the house of parliament that remains after the People’s Assembly was dissolved by court order last year - throwing the date of the impending parliamentary election into doubt. 

Under the new constitution, signed into law by President Morsi on December 26, “procedures for electing” the new parliament must begin within 60 days, meaning the government faces a February 24 deadline to get started. Recent reports in the media had suggested that Morsi was ready to declare the opening of the election campaign, before the court rejected the law. 

What “procedures” means and whether the deadline would have any practical effect is unclear, but the government had been preparing for an April vote, and Egypt’s economy is crumbling in the meantime. The International Monetary Fund, potential suppliers of a desperately needed loan, will probably not agree to terms with a government that is set to change in the coming months.

So what is holding up the election law? Below - in bullet point summary and subject to my limited abilities of interpretation - are the court’s sticking points. While I hesitate to draw any broad conclusions about the court’s motives (it has been accused by the Brotherhood of being an agent of the old regime) there is more than one area in which the justices seemed to give the Brotherhood’s opponents a boost.

1)Workers and farmersThe court decided that the election law correctly echoed Article 229 of the constitution - which stipulates that half of the lower house of parliament must be made up of “workers” and “farmers” - but unconstitutionally expanded on the definition of a “worker,” specifying that such a person must be physically or mentally engaged in “agriculture or industry or services.” This unfairly discriminates against those who might earn income from other sources, the court ruled.

2)Shapeshifting candidatesThe court agreed with a provision in the election law that any candidate who “changes the character of his candidacy” after being elected will be disqualified from sitting in parliament, but it said that provision must be expanded to apply to anyone, including farmers or workers, who never had a party affiliation, changed their party affiliation, or dropped a party affiliation to become an independent or “independent partisan.” In the past, so-called independents worked closely with the National Democratic Party after their election, but this could also be aimed at allowing the removal of those believed to be close to the Brotherhood who nevertheless do not join its Freedom and Justice Party.

3)RedistrictingIn a short statement with potentially huge ramifications, the court ordered the Shura Council to reconsider its parliamentary seat allocation, likely setting into a motion a complete redistricting of all 27 governorates. The court said the redistricting must take a “just account of the population and governorates” and that districts must not be drawn in an “arbitrary manner.” There are already reports that the members of Council criticized the majority Freedom and Justice Party for rushing through a flawed district map that did not take geography and population into account.

4)Joint listsThe court ruled that if political parties and independents form a joint electoral list, they must specify each member’s political affiliation.

5)Military serviceThe court expanded on a provision in the election law about candidate requirements, specifying that a candidate must have full “political and civil rights” - a tenet of the constitution - and that those who have not completed or been exempted from their compulsory military service can acquire a special waiver from the Defense Minister, in accordance with the interests of national security.

6)ObjectionsTake this entry with a grain of salt, as the translation may not have been complete, but it appeared that the court ruled unconstitutional a provision in the election law that allowed Administrative Court judges to decide on candidates’ eligibility without referring the complaint first to the committee of court commissioners - auxiliary judges who usually first offer their opinion to their superiors before a final ruling is made. The SCC decided that a seven-day window to make such a ruling was allowed, but that removing the court commissioners from the process was an “assault” on the judiciary.

7)Old regime candidatesIn a potentially significant change, the court made a ruling on the eligibility of figures tied to the old regime that seems to essentially reinterpret the constitution itself and make it easier for former NDP members to participate in the election. In Article 232 of the constitution, which is aimed at barring “leaders” of the NDP from any political participation for the next 10 years, anyone who sat in parliament during “the two legislative terms preceding the revolution” is banned from running. The Shura Council’s election law, however, specified that anyone who served in parliament during “any” of the two pre-revolution terms would be banned. The court ruled this unconstitutional, saying the constitution only intended to ban those who had served in both terms. I cannot say how many individuals were elected in both terms - 2005 and 2010 - but it seems likely that many candidates elected in the fraud-ridden November 2010 NDP landslide did not participate in 2005 and would thus be eligible to run again under today’s ruling. 

8)Releasing resultsIn an apparent response to complaints stemming from election-night activity during previous votes, when parties and judges leaked unofficial tallies to the media, sometimes before polls even closed, the court ruled that no one would be allowed to release any data indicating winners and losers, except for the total number of votes at each polling site. Only the High Election Committee would be allowed to announce final results, in accordance with Article 232 of the constitution, the court ruled. The tactic of immediately releasing unofficial results was used to great effect last summer, when the Brotherhood published and distributed a thick book containing detailed results from each polling station in the country that corroborated their claim of Morsi’s victory. The pre-emptive release helped push public opinion in the Brotherhood’s favor during a nearly week-long delay by the government in releasing official results, during which many worried that there would be an attempt to artificially alter the votes to give Ahmed Shafiq the lead. More recently, however, Brotherhood and FJP sources sometimes released results from polling stations before polls officially closed, raising complaints of fraud.

The court also ruled that a system needed to be put in place to ensure no unregistered NGO observers would be allowed to monitor voting, and that such a system would be overseen by the High Election Committee.

9)FraudThe court ruled, vaguely, that Article 28 of the election law must be amended to give the High Election Committee authority to implement a fraud-prevention plan. The court specifically mentioned that the election is to be held in two consecutive days, even though ink meant to mark those who have already voted “could disappear” before the 48 hours are over.

10)Expat votingAddressing the issue of Egyptian expatriate voting, the court acknowledged that there had been “issues” with the use of diplomatic personnel supervising voting in embassies abroad during past elections. The constitution specified that only judges could oversee voting, but the use of diplomatic officials was legally supported by the constitutional declarations issued by the Supreme Council of the Armed Forces in the months after the revolution, the court argued. Those decrees have been voided by the new constitution, but the system suggested by the Shura Council’s draft law - which I have not seen described - remains unconstitutional, the court ruled.