Is Egypt’s new parliamentary election law constitutional?

The following post was contributed by Nathan Brown of GWU and Carnegie — see Brown's previous posts on Egyptian constitutional matters here and here. (Updated with further commentary after the jump.)

The short answer is: Maybe. We’ll have to wait and see.

The quick retort: Not again?

The quick answer: Yes, it could be déjà vu all over again. But it might not.

Here’s the story. The country’s Supreme Constitutional Court (SCC) has struck down the country’s parliamentary election law four times. Three of these times that led directly to a dissolution of the parliament. On the other occasion, the parliament had already been dissolved.

And each time that led to all kinds of problems: how to write a new election law with parliament dissolved; whether the new law would be constitutional; what happened with the actions taken by the old parliament; and so on. Those questions could be answered, but the turmoil was real—even with the Mubarak regime’s pseudo-parliaments. When parliament is something to be taken far more seriously, the effects of a dissolution by court order are farther reaching. Egypt is still reeling from the effects of the 2012 dissolution.

So the constitution drafters knew what to do: they availed themselves of a tool sometimes spoken of but never used in Egypt before (with one exception): prior review. The parliamentary election law would be drafted and then sent to the SCC for review. That would immunize it from later attempts to challenge it on constitutional grounds. Egypt’s SCC, like most specialized constitutional courts, does not try concrete cases (though concrete cases are the genesis of most of its work). In a sense it tries laws instead. Its job in constitutional matters is to say if a law is constitutional or not. If it says a law is constitutional one day, it is hard for it to change its mind later on. (For that reason, many justices of the SCC dislike prior review and regard it as an attempt to tie the SCC’s hands—and indeed, in Mubarak’s times some unsuccessfully argued for prior review with precisely that motivation).

OK, but what if the SCC found the draft unconstitutional? Well, then changes could be made to bring it in to line. And in Egypt’s one prior experiment with prior review, that is just what it did. In the country’s March 2011 constitutional declaration, the SCC was required to review only the presidential election law in advance, precisely to avoid thel vacuum that would occur if a president were elected and then had the legal scaffolding knocked out under him. The SCC found Egypt’s January 2012 draft decree-law (rushed through by the SCAF right before the parliament met) flawed on a large number of generally minor grounds. The SCAF fixed the errors and promulgated the law.

And that is what has happened this time—the upper house of the parliament (the only part left standing) used its interim legislative authority to draft a law. The SCC found a number of problems and the upper house fixed them.

So how could déjà vu happen all over again? Well, the upper house did not send back the law to the SCC a second time. (Neither did the SCAF when it fixed the presidential election law last year.) It was not required to do so; it was in suomethng of a rush; and it was not clear if the SCC would feel empowered to rule again.

So who is to know if the amended law is constitutional? Only the SCC judges can say for sure—and since the law has not been submitted to them, they’re not saying anything.

On some issues there may be no cause for concern. Some of the glitches were minor. But there is at least one problematic area: the apportionment of seats. Egypt’s current electoral map is skewed (generally to discriminate against big urban areas). The SCC found that problematic and seemed to be on very solid ground in the ruling. But its judgment was terse on this point and it was not clear what standard it used or would use in the future. The parliament, anxious to get the electoral show on the road, made some quick adjustments. A full and fair redrawing of Egypt’s electoral map may be a good idea. In fact it is desperately needed. But it’s not clear there is the time do that or any body that has the credibility to undertake the effort. There was a sound political reason for the upper house to have acted with an incomplete fix as it did. But is the new law constitutionally sound?

We’ll have to wait and see.

So Egyptians will start voting according the leisurely schedule required by the system of judicial monitoring. And somebody will lose a seat and go to the courts to challenge the law. The SCC might reject the challenge, sit on it for years, or issue a ruling within hours of receiving the case. My own sense—based on an inexpert reading between the lines of recent judgments—is that few of the justices are spoiling for a fight with the emerging regime. I would guess they will take their time. And in the mean while, the sword of dissolution—the same one that drove President Morsi to lose his cool in November last year—will hang over the parliament.

Update: Nathan Brown writes in response to Zaid al-Ali's comments:

I just looked at it on the website and saw Zaid al-`Ali's comment. I think he is right on both counts 

First, he says article 177 prevents subsequent challenge before the SCC.  I had first read article 177 as something the SCC could get around by claiming that it had not reviewed the law, only a previous draft.  But when I go back to the text, I am convinced Zaid is right--that path would be very difficult.

But the second speculation that Zaid reports--that the matter could go to the administrative courts--is one that I would think would be a very solid possibility indeed for two reasons. 

First, the argument that the Shura Council has not respected the ruling of the SCC is powerful, especially on districting.  I think full compliance would have been next to impossible, in part because the system is so badly confused and time is so short.  But it's also because the SCC gave no guidance on what such compliance would look like--it simply said the first draft was unconstitutional but it gave no standard on how to fix it.  So an administrative court could easily say that the law was promulgated in contravention of a judicial ruling.

Second, article 177 says that the SCC's "exclusive jurisdiction" over constitutionality does not operate over such an election law.  So an administrative court could say "Normally we'd have to transfer the case to the SCC because it has exclusive jurisdiction. But now we don't; we can rule on constitutionality ourselves."  It was partly to prevent the administrative courts from exercising a claimed right to consider constitutionality that the Supreme Court (the predecessor to the SCC) was created back in 1969.

Would an administrative court do so?  Well, it could certainly find an easy way to deny its own jurisdiction (the dreaded doctrine of "acts of sovereignty" could easily rear its head here).  But it might not.  I have speculated on the inclination of the SCC to avoid full frontal confrontation, but the administrative courts are a much more diverse lot and much harder for me to read from afar.

Unlike the SCC, the administrative courts have two levels, so a lower level court might rule one way and then be reversed on appeal.   

In short, this could drag out even longer.

So rather than deja vu all over again, it may be more like deja vu that nobody has seen before.