Draft Electoral Laws Contradict Egypt’s National Charter: Constitutional Court

Hopes for holding Egypt’s parliamentary elections this summer have become dim in recent days. On Monday, the High Constitutional Court (HCC) took the Islamist-led Shura Council (the upper house of Egypt’s parliament) aback by deciding that as many as ten articles of two draft laws regulating parliamentary polls run counter to the newly-approved constitution.

The HCC decision has thrown a wrench into the legal ratification process and could complicate the process of conducting parliamentary elections this summer. The Shura Council must meet again to debate the HCC ruling, amend the laws and then refer them back to the HCC.

“This must be completed in one week or before 23 February,” said Mohamed Mohieddin, an appointed Shura Council member representing the liberal Ghad Al-Thawra Party.

Mohieddin stated: “Article 229 of the new constitution states that procedures for parliamentary elections must begin within sixty days of the ratification date of the new constitution.” Mohieddin noted that the new constitution was officially ratified by President Mohamed Morsi on 25 December, meaning that the 60-day period “will come to an end on 23 February.”

There are serious doubts that the Shura Council will be able to meet the 60-day deadline. Amendments to Law 38 (1972) on the People’s Assembly and to Law 73 (1956) on the exercise of political rights were approved by the Shura Council on 19 January and officially referred to the HCC the next day. There had been high hopes among council members that the HCC would revise the two laws in a week or two, giving enough time to amend them and refer them to the president for final ratification and thus allowing the parliamentary electoral process to begin.

Shura Council Chairman Ahmed Fahmi is expected to review the HCC’s findings in a plenary session on Tuesday. The council’s legislative and constitutional committee is also expected to meet soon to discuss the HCC’s findings on the two laws.

In its report, the HCC said the two laws violated several articles of the new constitution, at the top of which is one regulating the role of workers’ and farmers’ representatives in parliamentary elections.

“While Article 229 of the constitution states that a worker is the one who is being employed by others against payment or salary, the laws state that a worker is the one who generates his or her income from a manual or intellectual job in agriculture, industry and services,” the court’s report reads.

The HCC report also indicated that the two laws violate Article 55 of the constitution. The report argues that “while the two laws insist that MPs who change their definition (from worker to farmer or vice versa) after joining the House of Representatives must be stripped of their parliamentary membership, they refrain from applying the same rule to MPs who change their political affiliations” (those who win elections as independents but join a political party once they enter parliament, or who win as party-based candidates but become independents in parliament.)

The report adds: “This cuts short the right of citizens to freely elect their deputies in accordance with Article 55 of the constitution.”

While this issue was debated in the Shura Council, it was rejected by most civilian forces on grounds that “it serves to deceive voters.” Muslim Brotherhood MPs insisted that candidates have the right to change their political affiliations after they join parliament.

More significantly, the HCC report stipulates that Egypt’s electoral map must be redrawn to represent citizens in accordance with Article 113 of the new constitution. “These districts must not be re-drawn in an arbitrary way and the Shura Council must take public interests into account when discussing these districts,” said the HCC report.

During the debate, Muslim Brotherhood MPs rejected amendment of the law regulating the distribution of electoral districts on grounds that it would take too much time to do so. Civil forces, however, cried foul, saying that the law was “biased” because it “arbitrarily decides that some districts are two big and others too small.”

The HCC report also argued that, while the two laws allow independents and party-based candidates to run on one ticket, they failed to state that the ticket must show the political affiliation of each candidate (whether he or she is independent or party-based), in accordance with Article 55 of the new constitution. “Citizens have the right to know the political affiliation of each candidate before they vote,” the report asserts.

The court also stated that, while Article 113 of the constitution states that candidates in general elections must be “Egyptians empowered with complete political and civilian rights,” the two laws only state that candidates must be “Egyptian.”

The HCC also found that, “while Article 232 of the constitution states that leading officials of ousted President Hosni Mubarak’s defunct National Democratic Party (NDP) and deputies of that party in the two houses of parliament elected before the 25 January Revolution in 2011 (in 2005 and 2010) must be barred from pursuing political activities – including running in parliamentary and presidential elections – for ten years, the laws state that NDP deputies who were members in ‘any’ – rather than ‘both’ – of the two pre-revolution houses of parliament must be stripped of their political rights.”

The HCC also ruled that the two laws granting Egyptian diplomats – rather than judges – the right to supervise and monitor expatriate voting ran counter to Article 238 of the constitution, which states that all constitutional declarations that had stated this right in 2012 must be revoked.

The HCC also ruled another article, giving citizens who had not performed military service the right to run in elections, unconstitutional.

The court also said the two laws must be amended to grant the Supreme Elections Commission total authority to supervise and monitor the upcoming polls. “This must begin with the opening of the candidacy registration period and end with the announcement of the final vote results,” the court asserted.

The HCC further stated that the two laws must detail the conditions necessary to allow licensed civil society organisations to participate in supervising the elections. The same rules, the HCC added, must apply to the media.

Finally, the constitutional court stated that the two laws must be amended to grant the Supreme Elections Commission all the tools necessary to ensure that citizens could not cast multiple ballots, especially if the election/referendum in question was conducted over two or more days.

Ahram