According to a timeframe put in place by the High Elections Commission (HEC) in January, a new Egyptian parliament should be elected and convened by mid-May, 2015, at the latest. However, a study of the current situation, particularly in legal and constitutional terms—irrespective of the political context and electoral alliances that may be formed—indicates that the parliament will face a number of major obstacles. These obstacles may threaten the very existence of the parliament itself, whether through the postponement of elections entirely or the dissolution of the parliament after it is formed. As such, Egypt could witness a parliamentary absence that may last indefinitely, leading to a continuation of the current political vacuum.
An elected Egyptian parliament has been absent from the political arena almost entirely since January 2011. On February 13, 2011, the Supreme Council of the Armed Forces issued its first constitutional declaration dissolving both the People’s Assembly and the Shura Council (the two houses of parliament at the time), elected under the Mubarak regime. Since then, there has been no parliament in Egypt, with the exception of five months from January to June 2012, when the People’s Assembly convened following the election that was held between late 2011 and early 2012. The People’s Assembly was later dissolved as a result of the judicial ruling issued by the Supreme Constitutional Court (SCC) in mid-June 2012 establishing the unconstitutionality of the House of Representatives Law.
Three years later Egypt finds itself in a similar situation, with the SCC expected to rule on March 1 on the unconstitutionality of the House of Representatives Law, Political Rights Law, and Parliamentary Constituencies Law. These three laws organize or regulate the process of electing the next Egyptian parliament, and a ruling declaring any of their legal provisions unconstitutional could have the direct result of delaying the parliamentary elections. If such a ruling were to be issued after the parliament is formed, it would invalidate the parliamentary elections and result in the dissolution of parliament.
This problem represents a major legal and constitutional crisis—one that the Egyptian political system has suffered from for three decades. In the 1980s, during the rule of former President Hosni Mubarak, the SCC issued two rulings deeming the House of Representatives Law unconstitutional. The parliament was dissolved twice as a result. The parliament elected in 1984 was dissolved in 1987, and the parliament elected in 1987 was also dissolved in 1990. The main legal problem in both cases was the establishment of a mixed electoral system that combined individual candidates and list systems. The judicial rulings issued by the SCC stated that the distribution of the parliamentary seats between individuals and lists was in violation of the principle of equality or equal opportunity. This happened again when the People’s Assembly elected in early 2012 was dissolved just five months later, as the result of an SCC ruling for the same reasons. This ruling had major repercussions for the transitional period that followed the Egyptian revolution, significantly altering the course of events.
Despite the damage wrought by the dissolution of three elected parliaments (in 1987, 1990, and 2012), as well as the resulting political tumult and wasted public funds and human resources, nothing has been done to put an end to this crisis. On June 5, 2014, just hours before handing power over to the current president, former interim President Adly Mansour issued both the House of Representatives Law and Political Rights Law. In December 2014, the Parliamentary Constituencies Law was issued, initiating the process related to preparing for parliamentary elections. The first of these procedures was a decision by the HEC calling on voters to elect the House of Representatives, a legal occasion that was used by multiple parties to challenge the (by more than ten cases have been submitted to the SCC) constitutionality of the three laws. These challenges could—if they result in any of the contested legal provisions being declared unconstitutional prior to the election—disrupt the parliamentary elections, or if issued after the formation of the parliament, result in its dissolution.
A study of this constitutional crisis reveals that there are two ways to resolve it. The first would be to require the SCC to review legislation related to elections prior to its promulgation; in such a case, the law would be sent to the SCC prior to its issuance for the court to examine the extent to which it complies with the constitution. If the law is passed after being approved by the SCC, it would not subsequently be subject to constitutional appeals. As such, there would be no threat of any elected body being dissolved, whether the parliament, the presidency, or local councils. The 2012 constitution passed under ousted President Mohamed Morsi had adopted the principle of prior constitutional review of laws related to elections in Article 177. However, the severe political polarization and the environment of political turmoil experienced during Morsi’s rule led to difficulties in the application of this constitutional provision, despite the fact that it represented an appropriate way to resolve this crisis.
The second way to address this constitutional crisis would be to continue to allow for the constitutional review of legislation after it is promulgated, as has been the case for decades under the Egyptian legal system. The only difference would be that if the SCC declares an electoral law unconstitutional, the application the ruling—in this case, the dissolution of the elected body in question—would be postponed until the completion of the constitutional period established for the elected body. In other words, the elected body (whether the parliament or another institution) would complete its constitutional term, even if some legal provisions related to its election are ruled unconstitutional, based on a postponement of the effects of the constitutional ruling until the constitutionally established term is completed.
The amended Egyptian constitution issued in 2014 does not adopt either of these two resolutions. Instead, it stipulates that constitutional review of legislation, including electoral laws, should occur after it is promulgated, as has been the case for decades. This is the very system that has resulted in the creation of the current crisis, which is nothing more than a repetition of past crises. The only change made in this regard was an amendment in April 2014, to the law governing the SCC. The amendment stipulates the establishment of short time limits for reviewing cases related to the constitutionality of one or more provisions of laws regulating presidential or legislative elections. Under this amendment, the duration these cases cannot exceed one month from the date on which they are registered with the SCC. The result of this is that the cases now filed challenging the constitutionality of the electoral laws must be decided in the first half of March. This, in turn, could lead—in the event of a ruling of unconstitutionality—to the postponement of the parliamentary elections entirely.
Developments in Egypt clearly reveal the absence of genuine political will and a comprehensive vision to carry out the necessary constitutional or political reforms. The fact that the mistakes of both the recent and distant past are being repeated gives the impression that an intentional decision has been made to ensure the continued absence of a parliament in Egypt. Such a decision would serve the purpose of allowing the political authorities to control both the executive and legislative processes, without any oversight or balance of power being exerted by another branch of government. Such a situation has never led—and will never lead—to political stability, or to serious reform.
Yussef Auf is a nonresident fellow with the Rafik Hariri Center for the Middle East. His work focuses on Egyptian constitutional issues, elections, and judicial matters. He has been a judge in Egypt since 2007.