The Arabist

The Arabist

By Issandr El Amrani and friends.

Posts tagged scc
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.  

In Translation: The SCC's verdicts

We've had the linguistic gnomes at Industry Arabic working overtime this weekend to translate the verdicts dissolving parliament and declaring the Political Exclusion Law unconstitutional issued by Egypt's Supreme Constitutional Court this weekend. They plowed through the legalese and given us this  —a full translation of the verdicts, available in PDF [334kb, original Arabic version here.]. They even highlighted in yellow some of more significant passages.

Below I am excerpting the reasoning of disbanding parliament because members of political parties were allowed to run for the individual candidacy (aka simple majority of first-past-the-post) seats:

There is no doubt that establishing this competition had a definite impact and reciprocal effect on the two-thirds allocated for closed party lists, since if political parties were not competing with independents over that other portion, then a rearrangement would have taken place within the party lists, taking into account the priorites within each party. Furthermore, political party members had the choice between two ways to run for the People's Assembly, the closed party-list system and the individual candidacy system. Independents were deprived of one of these ways, and their rights were limited to the portion allotted for the individual candidacy system, in which political party members also competed.

While I understand that the court mostly based its argument on electoral laws — the "unconstitutional" law electoral of 2011, replacing or amending previous ones being the chief problem — I was not sure what parts of the 2011 Constitutional Declaration the said law violated, particularly since previous decisions to dissolve parliament (in 1987 and 1990) often invoked in this case took place under a different constitution. Indeed, oddly, there are references to both the 1971 Constitution (under which many laws regulating political life where enacted) and the 2011 Constitutional Declaration now in place. The court itself at times seems to hesitate between the two, as if both were somehow still relevant rather than just the latter.

Once again, the key argument of the court is that the 2011 electoral law discriminated against independents because while members of political parties could contest both the list system and the simple majority system, non-affiliated politicians could only take part in the simple majority races. This, it ruled, is a violation of the principle of equality, as enshrined in Article 7 of the 2011 Constitutional Declaration:

Law applies equally to all citizens, and they are equal in rights and general duties. They may not be discriminated against due to race, origin, language, religion, or creed.

Here's the court's long-winded argument:

Whereas it is established that the political system in the Arab Republic of Egypt shall be a multi-party system – under the 1971 Constitution, and confirmed by Article 4 of the Constitutional Declaration – considering that this multiplicity aims primarily to deepen democracy and anchor its foundations within the framework of the right to run for office and vote, which are considered a primary gateway and a basic rule for it. Hence, these rights were guaranteed by the Constitutional Declaration to all citizens, who hold popular sovereignty in accordance with the provisions of Article 3 of the Constitutional Declaration, and exercise it according to the means indicated in that Declaration. There is no proof of this stronger than the fact that the multi-party system is what carries within its folds a system in which opinions may agree or disagree, while the national interest remains its framework, standard of assessment, and check on their activity, which is an interest that is maintained by the whole people. The multi-party system was not a means adopted by the constitutional legislature to replace one domination with another, but was considered a straight path for national action through the democracy of dialogue, within which opinions are numerous and varied, with the role played by political parties connected in the end to the wish of the voters in all their different aggregations. It is a wish which manifests itself when they freely choose their representatives for parliament, and in the weight their votes throws behind those who are competing for the seats. This is what the Constitutional Declaration was intent on ensuring, guaranteeing the right to vote and to run for office, and making them equal in the exercise of those two rights. It did not permit discrimination between them in the bases on which they exercised these rights, nor did it give preference to some citizens over others in any issue related to them. It granted these two rights to the citizens -- who meet the required conditions – regardless of their varied affiliations and political opinions, in order to guarantee that national action remains collective, with no preference for some citizens over others. Through this collaborative effort in building up national actions, political parties shall work with those not affiliated with them, in order to anchor the foundations of these actions. Thereby, the true meaning of Article 3 of the Constitutional Declaration is realized, which does not grant popular sovereignty to one class, excluding the other, nor impose the authority of one group over the other. Within this framework lies the value of the multi-party system as a constitutional purpose for deepening the concept of democracy, which does not offer political parties a role in national action that exceeds the margin of confidence granted by the voters to their candidates, who compete with others according to objectives rules unlimited by any creed, and unrestricted by any form of affiliation, whether political or non-political, so that all citizens who fulfil the conditions set for this would have the same opportunity – through which they influence, equally among themselves – the shaping of national policy and the determination of its final features. This is confirmed by the fact that the Constitutional Declaration does not include a provision compelling citizens to join political parties, or conditioning the exercise of political rights related to the right to run for office and to vote on party affiliation, which indicates by necessity that it establishes the freedom of citizens to join or not to join political parties, and to exercise their enumerated political rights through political parties or apart from them. Undoubtedly, the principles of equality and equal opportunity, which are the primary fundamentals and principles concerned in the matter, necessitate one legal treatment for all candidates, on the basis of equal opportunity for all, with no discrimination based on party affiliation. Discrimination in that case would be based on difference in political opinion, which is a matter prohibited constitutionally. The party system should not become a restriction on the freedoms and the public rights originating from it, one of which is the right to run for office, which is one of the public rights stipulated by the nature of parliamentary democratic systems, and imposed by its main cornerstone, which is based on accepting the sovereignty of the people, in accordance with the provisions of Article 3 of the Constitutional Declaration.

Of course remember that the 2011 electoral law was drafted by SCAF in September and then modified three times by October. Surely they could have checked it then?

I'll leave legal analysis to others — do chip in with your two piasters.