The Constitutional Court’s mark on Egypt’s elections

On May 25, Egypt’s Supreme Constitutional Court (SCC) rejected the draft electoral law that the Shura Council had referred to it a month and a half earlier. The SCC found that the draft law did not conform to the 2012 constitution on several grounds, some relatively minor and others far more consequential. This was the third time that the courts have delayed the electoral process. The SCC also issued a number of important rulings on June 2: the SCC ruled that the Shura Council was elected on the basis of an unconstitutional electoral law, severely damaging its legitimacy; secondly, it ruled that the constituent assembly that was established in June 2012 was also unconstitutional, but also found that the 2012 constitution should remain in effect, given that it was approved in a popular referendum. 

These two decisions provoked predictably angry reactions, vigorous debate, and accusations of judicial activisms against the SCC. They also contributed to calls for the judiciary and for the SCC to be reformed or purged or both. Was this reaction warranted? The Egyptian transition is typical of a modern social revolution in how it has been playing out in the streets, on the airwaves, in cyberspace, in the halls of power. But the manner in which the courts have influenced the transition process over the past two and a half years is truly remarkable. The SCC court has been forced to deal with the challenge of steering the electoral law in a direction that would be in conformity with the constitution, on its own and in a highly charged political environment in which it is incessantly accused of being politically motivated. Assessing the SCC’s motivations is a difficult exercise, given that the judges themselves are the only ones who can speak with authority on whether their decisions have ulterior motives, and given that that is a matter that they will clearly not speak to. However, whenever a constitution is vague, ambiguous, and difficult to amend, as is the case in Egypt, constitutional courts immediately become political actors. When the court is called upon to interpret the constitution, whatever the court decides will have political implications. The question is therefore not whether the court is or should be involved in politics, but whether it is motivated by politics. Based on what we know however, the SCC’s decisions have thus far been based on justifiable and verifiable legal arguments.

The current rulings came in the wake of the Constituent Assembly’s efforts to prevent a replay of the June 2012 debacle, in which the SCC dissolved the lower chamber of parliament on the basis that the previous electoral law was in violation of the interim constitution. Whereas the SCC had traditionally reviewed the constitutionality of laws after they entered into force and only when an appeal was made before it, the 2012 constitution created an exception specifically for electoral laws. Article 177 provided that, after draft electoral laws are approved by the parliament they must be reviewed by the SCC to ensure that they are in conformity with the constitution before they can be sent for signature by the executive. The difficulty was that article 177 set in motion several dynamics that do not appear to have been anticipated by many of the country’s main political actors.

The first move came on February 18, when the SCC rejected the electoral law’s first draft on a number of grounds, including that some electoral districts were allocated proportionally more seats than other districts for no apparent reason. The Shura Council quickly produced a second draft of the law, which it referred to the president for signature, arguing that the SCC should not be given a second opportunity to review the draft law. On March 7, the administrative court ruled that the 2012 constitution required for any new draft electoral law to be referred back to the SCC until the latter gives its final approval. The Shura Coucil, in a clear admission that its second draft was almost certainly not in conformity with the constitution or with the SCC’s earlier ruling, reacted to the administrative court’s decision by preparing a third draft. The SCC rejected that third draft on May 25 on several grounds; most famously, the court found that a provision prohibiting security forces from voting violated constitutional provisions guaranteeing equal political rights for all, and that the failure to prohibit campaigning on religious grounds was also not in conformity with the constitution. The Shura Council is now therefore forced to prepare a fourth draft, which means that the parliamentary elections could easily be delayed until 2014.

On June 2, the SCC went one step further and ruled that the Shura Council itself was elected on the basis of an unconstitutional electoral law. That much was not surprising, given that the SCC had already issued a ruling on the exact same basis in relation to the lower house of parliament in June 2012 on the exact same basis. The complicating factor this time around was that article 230 of the 2012 constitution provided that the "existing" Shura Council should have "full legislative authority" until the coming parliamentary elections. Therefore, although the SCC found that the Shura Council was elected in violation of the constitution, it postponed the dissolution until the lower house is finally elected.

Many of these problems are endemic to any political transition. Whenever a new constitution enters into force, the country’s legal system has to go through an adaptation process. Many existing laws will be in violation of the new constitution and will have to be changed, citizens and security forces will have to understand and conform to the new frameworks on personal freedoms, some institutions will have to change their working methods and reporting lines, new institutions will be created, and so forth. This adaptation process is invariably overseen by the courts, which will play a vital role in deciding how the new constitution should be implemented. Political polarization, economic crisis, and a poorly drafted constitution complicate matters further. Thus, in any transition process that involves the ratification of a new constitution, there is always a spike in legal claims in which existing legislation is challenged and in court decisions in which legislation is struck down. Because the courts will often have to render decisions on fundamental issues that could determine the entire course of the state, its role is necessarily controversial.

Egypt’s new 2012 constitution resembles the 1971 text to a surprising degree, with many provisions from the 1971 constitution maintained and some modified only slightly. Many had hoped for a more radical shift in the vision of the state, given that a popular revolution had just taken place. In practice however, even minor changes in wording can have a major impact on the way in which legal principles can be interpreted and applied. In addition, where changes are rushed, there is unusually not enough time to anticipate what the impact of a specific choice of words can be on the state and its structure. It matters, therefore, that the new constitution was drafted in six months, which is exceedingly short in comparison to other countries, and that many changes were introduced in the last few hours before the process was complete. There was manifestly not enough time to consider what was likely to come next.

Members of the now defunct constituent assembly have complained that the 2012 constitution is being applied in ways that they did not intend. The March 7 administrative court decision, for instance, not only forced the Shura Council to refer its draft electoral law back to the SCC for review, but it also found that the president’s decision to sign an electoral decree pursuant to the electoral law was in violation of the constitution as well. The court based its decision on article 141 of the new constitution, according to which the "President of the Republic exercises pres
idential authority via the Prime Minister, his deputies and ministers, except those authorities related to defense, national security and foreign policy" as well as a few others that are specifically listed. Given that the list did not include electoral matters, the court found that the decree should have been signed by the prime minister first, and that the president’s signature should have come after. Many of the constitution’s drafters noted that they had never intended for article 141 to limit the president’s powers in electoral matters. Although that may well be the case, the text here is direct and specific enough to render irrelevant what some drafters say they meant.

The first rule when interpreting a legal text, constitutions included, is to rely on the actual words that are used in the relevant provisions. If their meaning is clear, then that is the only source that should be relied upon. If the meaning is unclear, then other sources such as the drafters’ intent can be relied upon. Regardless of what the draft of the new constitution intended therefore, the text is now final and whatever words were used must have repercussions. Realistically speaking however, judges are not and should not be mindless automatons that are completely disconnected from the environment in which they live. The country’s circumstances should be taken into account when deciding cases, particularly in transitional processes. If a strict application of the law would mean pushing the country over a cliff, one would hope that judges would take that into account when deciding cases.

Although the drafters may not have intended for article 141 to limit the president’s powers, that is what the provision says and so the state will have to adapt to that reality. Also, although some Shura Council members claimed that article 177 can be read to mean that the SCC should only have one opportunity to review the electoral law, that interpretation would have meant that the legislature could completely ignore the SCC’s findings, emptying the entire process of prior review of any meaning whatsoever. The administrative court did not allow for that interpretation to stand, which means there could potentially be an endless series of new drafts from the Shura Council and rejections by the SCC.

There is also another element to article 177 that does not appear to have been properly considered. The provision requires the SCC to review all electoral laws before they enter into force (what is often referred to as "prior review") rather than after they are approved by the executive ("subsequent review"). The nature and dynamics of prior review are entirely different to subsequent review. Firstly, subsequent review can only take place after an appeal is made to the SCC; even if a law is blatantly unconstitutional, the SCC cannot on its own initiative start a claim and strike down the law. Prior review however is automatic; the court will in all cases be called upon to review the relevant law, regardless of whether or not anyone has any qualms. It also means that the SCC is not limited in any way by the arguments that are made before it. It is called upon to review all of the draft law’s details, regardless of how minor or unimportant they may seem, and to do so within 45 days.

In addition, because article 177 explicitly states that electoral laws cannot be subject to subsequent review, the SCC’s moral burden has been increased significantly. The SCC essentially has this one opportunity to make improvements to the law and bring it into conformity with the constitution. Anything that it fails to correct now will not only irretrievably taint the coming elections, but it could set a dangerous precedent for the future; failing to take the process seriously today would invariably lead to pressure to gloss over flaws in electoral laws in the future. Article 177 has therefore imposed a significant responsibility on the SCC, which some of the country’s more powerful political forces do not appear to appreciate. Accusations of judicial activism therefore have to be taken with a grain of salt: constitutional drafters cannot reasonably force the SCC to comprehensively review the electoral law’s constitutionality and then complain when the SCC does what it was required to do.

An informed reading of the SCC’s May 25 decision shows that however politically controversial, its rationale is justifiable. The 2012 constitution includes a number of new provisions that were not present in the 1971 text and which the court based its decision on. Once again, although the constitution’s drafters may not have anticipated the impact of what they wrote, the new provisions are clear in their meaning and the SCC cannot simply ignore them.

The current Shura Council was elected in early 2012 pursuant to the March 2011 interim constitution. Only around 8 percent of eligible voters bothered to turn out to vote mainly because the council had only been granted an advisory role and was considered by most to be a side show. The results were heavily skewed in favor of Islamist parties, even more so than the lower chamber. However, since the lower chamber was dissolved in June 2012 by the SCC, the 2012 constitution granted what was supposed to be full and temporary legislative authority to the Shura Council. The rationale was that a legislative body was needed to draft and approve an electoral law and the council was supposed to play that role (it is also important to note that the alternative, which would have been to allow the president to rule by decree, would have been much worse and far less popular). Although its wording could certainly have been clearer, article 229 appeared to suggest that the electoral law should have been completed within two months of the constitution’s entry into force, which is to say February 2013. Elections were initially planned for April, but now appear to have been delayed to the beginning of 2014 at least. Because of this delay, the Shura Council has expanded its scope to include matters other than the electoral law, including the possibility of passing a new NGO law, a protest law, and a judicial reform law (all very controversial). Egyptians who are opposed to the Freedom and Justice Party’s (FJP) agenda argue that the council lacks all legitimacy and should be either replaced or dissolved immediately.

Clearly, given the circumstances, the Shura Council can never be considered fully legitimate, which makes early elections a priority. The question then becomes whether early elections should be organized at all costs, or whether there is an interest in improving the draft electoral law to bring it in conformity with the constitution and with the population’s aspirations. The answer to that question is fairly straightforward: there is no sense in replacing one legislature whose legitimacy is tainted with yet another. The coming parliament could be just as controversial and illegitimate as the Shura Council if the electoral law that is eventually adopted leads to an inequitable result or if a significant part of Egypt’s political class boycotts the elections. Getting the electoral law right is therefore a hugely important task that could finally be the push that Egypt needs in completing its democratic transition.

It is worth noting that the draft electoral laws that the Shura Council is producing are merely amendments to texts that have been on the books for decades. Although the council proposes to make changes to some of the laws’ main characteristics, the general framework is the same. Ideally, any changes that are made would be negotiated between the country’s main political forces, and the SCC’s role would be limited to ensuring that that agreement is in conformity with the 2012 constitution. Regrettably, politicians from rival camps are barely on speaking terms, as a result of which the draft electoral laws are being drawn up almost exclusively by parties that are closely aligned on one side of the political divide. The saving grace however is that the role that the SCC has b
een granted by article 177 means that regardless of how it is negotiated, the process through which the electoral law is drawn up can no longer be unilateral; the legislature is forced to fall in line with the constitution. Given the context, that the SCC is taking the process seriously should be welcomed as a means to ensure that the electoral process can no longer be dominated by one side or another.

Finally, it is in everyone’s interest for all the country’s main political forces to take part in the coming elections, and for that reason, if for no other, the electoral law should be designed in as equitable fashion as possible. The Egyptian opposition has been wavering between participating and boycotting the elections for some time, and the manner in which the electoral law evolves will weigh heavily on its final decision. Some observers have argued that the opposition will boycott no matter what, merely to obfuscate its lack of popularity; others have noted that a boycott would be a disaster for the country. Be that as it may, it does not excuse the Shura Council from its obligation to draft an equitable and democratic law. Strategically speaking also, the FJP has an interest in calling the opposition’s bluff and bringing the electoral law in line with the constitution and the SCC’s rulings; in any future political debate, the public will be convinced by a sincere attempt to reach consensus rather than a policy that leads to further division and distrust.

Setting aside the issue as to whether the elections should have been delayed, the substance of the SCC’s decision should also be examined from a political point of view. On the issue of whether soldiers and police officers should be allowed to vote (perhaps the most controversial aspect of the court’s decision), the arguments against the court’s rationale are quite weak. The rule that soldiers and police should not vote has been in force (and has been accepted in many quarters) for some time without overtly negative consequences for the country. Overturning that practice now has set in motion dynamics that many Egyptians would have preferred to avoid: many of the country’s revolutionary and political forces have been working to ease the security forces out of politics; they are conscious that this is a gradual process and consider that some progress has been made since the presidential elections in June 2012. The concern now is that, by allowing security forces to participate in the elections, commanders and officers could seek to compel their charges to vote in favor of particular candidates. Given their numbers (approximately two million), they could easily sway the elections in favor of a particular outcome, if they were indeed to vote as a single bloc. Given the circumstances, there is a strong argument that the SCC could have left this matter alone.

At the same time however, the practice internationally is to allow for security forces to participate in elections, the rationale being that soldiers and police officers are after all citizens who are impacted by the political process in the same way as everyone else. In addition, given that these people have a special responsibility to protect the country and its citizens and to do so based on the orders of elected officials, it is only natural to allow them to play a role in deciding who will be elected to parliament and who their commander in chief will be. With respect to concerns that the involvement of security forces could sway the results of elections, comparative practice tells us that there many specific measures that can be taken to lessen that possibility. For example, in other countries soldiers and police officers are often required to vote prior to the rest of the population, particularly if they are expected to safeguard polling stations during the elections (that is the practice in several Arab countries). In addition, members of the security forces are typically required to vote in polling stations that are outside and located at some distance from their barracks or stations, in order to clearly distinguish the exercise of their political rights from their security obligations. Ballots that are cast by security forces are often mixed with other ballots to lessen the likelihood that individual units could be punished by commanders for not having voted in favor of a certain outcome. Finally, special mechanisms can be utilized to deter commanders from pressuring their charges in the first place.

It is also worth noting that much of the concern relating to soldiers’ and police officers’ supposed susceptibility to being pressured by commanders is probably overblown. In Iraq in 2010, Jawad al-Bolani had been minister of the interior for close to four years and had claimed credit for the reduction in violence throughout the country in 2007 and 2008. He was a candidate in the March 2010 parliamentary elections and despite having hundreds of thousands of men under his command, obtained less than 4,000 votes, far short of the number that was required for a seat in parliament. Assuming effective measures are set in place, Egypt as a country does not appear to have much to fear from the participation of security forces in its elections, and probably has a lot to gain as it strives to create a more just and democratic society.

Yet another argument that has been employed by opponents to the SCC’s decision is that many of the security forces’ are likely to vote against the FJP’s candidates in any upcoming election. The theory is that the SCC is itself aligned with the liberal/secular camp and is abusing its power to influence the outcome of coming elections. This line of thinking also conceives as the SCC, as one of the judiciary’s most important components, as being in conflict with the FJP and the Shura Council because of the current efforts to reform the judiciary; under that rationale, the May decision is merely another manifestation of the tension between the two sides. The reality is far more complicated and opaque: although the SCC’s members were all appointed prior to the January 2011 revolution, many of the judges have a strong reputation for integrity under whose control the court appears to have been placed. In addition, if indeed the SCC really did conceive its decision as being an attack against the FJP, it should have given more consideration to the fallout that was likely to follow its decision: predictably, the FJP’s base is up in arms at the decision and has called for a referendum either to dissolve or purge the SCC.

Finally, even if one were to assume that soldiers and police officers are likely to vote against the FJP, that on its own is certainly not enough to exclude them from the electoral process. Following that same rationale, one could also exclude all sorts of groups within the country (professional, religious, cultural, etc.) on the basis that they are more likely to vote in favor of one party or another. If the security forces are to be excluded from the elections, it should on the basis of a credible risk to state and society and not because it would tip the balance in favor of one party or another. Elections are a competition of ideas between parties and alliances, and the winners and losers should be determined on the basis of respective popularity amongst the entire population and not only on the basis of certain segments of the voting public.

The SCC’s legal analysis is actually easy to understand, is convincing, and is a straightforward application of the 2012 constitution’s provisions. Some analysts argue that the 1971 and the 2012 constitutions provided equally for full political rights. On that basis, given that the court had never required for security forces to be allowed to vote in the past, the conclusion is that the court’s decision must be politically motivated, and that it is principally designed to inject millions of anti-Islamist voters to the mix at a sensitive point in Egypt’s history.

In reality, there is an important difference between the 1971 and the 2012 constitutions in so far as political right
s are concerned. Although both grant citizens the right to vote, there is an important nuance in the wording. Under article 62 (1971) the right to vote is granted to "citizens;" under article 55 (2012) "all citizens" have the right to vote. The addition of the word "all" is clear in its implication: any person who bears Egyptian citizenship must be allowed to vote. Article 55 does not leave any space for exceptions in that regard.

Secondly, both provisions require for the legislature to play a role in the electoral process, but there is an important distinction employed in the wording. Article 62 was in keeping with Egyptian and Arab constitutional tradition, through which rights were granted by the first part of a constitutional provision and then taken away by the second part (sometimes referred to as "claw back clauses"). That mechanism was used most famously in relation to fundamental rights. For example, the right to free speech would be granted on the condition that speech was exercised in accordance with the law; the legislature was then free to take away as much as it wanted from that right. Article 62 falls firmly within that tradition: citizens were allowed the right to vote, but only in so far as the law allowed them. So therefore, if the law declared that soldiers, convicts, or Egyptians abroad could not vote, then that was within the legislature’s prerogative as determined by the 1971 constitution.

On the other hand, article 55 (2012) stems from a very different tradition. The Arab region was not alone in suffering from claw back clauses. They were pervasive in many parts of the world prior to World War II; based on their own experiences and perhaps even under the influence of international human rights law, many countries have since moved on. Most recently, many African and Latin American constitutions have drafted a new generation of constitutions in which they included detailed provisions to try to prevent politicians from robbing ordinary citizens of their constitutional rights. They employed a number of mechanisms. One was to include in the constitution what is referred to as "limitations clauses;" another was for the constitution to include significant detail on how each right could be exercised and what types of exceptions could be introduced by the legislature. The 2012 Egyptian constitution was criticized for not having learned from that experience and for generally having maintained the same claw back clauses that were so prevalent in the 1971 constitution. Very little additional detail was provided by the 2012 constitution, which means that many of the anti-democratic process of the past are likely to continue for some time. One of the few exceptions in that regard is article 55: although the wording could definitely have been improved, it clearly indicates that the law’s only role is to ensure the "direct application" of the fact that every citizen has the right to vote. Under article 55 therefore, the legislature has no mandate to determine the scope of elections; its only role is to make sure that elections take place in accordance with the constitution’s framework.

Under that rationale, if the SCC can be faulted it is because it did not extend voting rights even further to include other groups who are still excluded from elections, including individuals who have been convicted of criminal offenses. Under the current version of Egypt’s electoral law, citizens who have been convicted of ordinary crimes are also prohibited from voting. Using the SCC’s rationale and its interpretation of article 55, that will also have to be revisited.

The courts will continue to be a major battleground between the country’s various groups for some time to come. The dynamics that have been set in motion by article 177 will be impossible to control in the foreseeable future. The first impact will be that the SCC will leave a huge footprint on the electoral process, to a far greater extent than in the past. The second is that the flow of court decisions will continue to contribute to tensions in the country, not because of the courts’ reasoning or because of the substance of what is being decided, but because of the manner in which the courts are perceived in Egypt. That perception could ultimately crescendo into a major effort to cut the courts down to size.

A more reasonable approach would be to rethink the transition, and to place these developments in their proper context. In the absence of a genuine political debate on the electoral law, the judicial process is the only game in town to ensure that the end result will be equitable. The process should therefore be welcomed by all sides as an acceptable compromise given that they themselves are failing to negotiate with each other. A more measured approach in the current context would also lead more credence and legitimacy to any effort to reform the judiciary in the future. There is no question that the courts should be restructured and that corruption issues need to be addressed, but if the process is mismanaged, it could either fail to achieve its objective or possibly even make the problem worse in the long run. The current juncture is therefore doubly sensitive: not only will it determine how the coming elections will take place, but it also serves as a trial run for how the judiciary will interact with the rest of the state under the new constitutional framework. If that relationship fails this test, parties may find that they will be forced to return to the drawing board sooner than they expected.

Zaid Al-Ali is a senior advisor on constitution building at International IDEA. Follow him on Twitter @zalali.