There have been various legal reasons used to challenge the constitutionality of the laws organizing the upcoming parliamentary elections. For the most part, these reasons are based on controversial legal articles, many of which were rejected by a large segment of the political forces in Egypt. Foremost among these controversies is the distribution of parliamentary seats between individual candidates and party lists, and the extent to which equal opportunity is achieved through this distribution. Specific provisions relating to this distribution appear in the House of Representatives Law, Political Rights Law, and the Parliamentary Constituencies Law.
Articles 4 and 5 of the People’s Assembly Law state that the House of Representatives will be made up of 540 seats, 420 of which are designated for individual candidates. Each seat represents approximately 130,000 voters, thus representing the total number of voters in Egypt, or approximately 55,000,000 voters. The remaining 120 seats will be elected based on a party lists system, intended mainly to represent seven categories. These categories—which apply only to this coming parliament—are Christians, youth, women, workers and farmers, people with disabilities, and Egyptians living abroad.
According to the Parliamentary Constituencies Law, the 420 individual seats are distributed throughout 231 electoral districts in such a way that 119 of these districts are represented by two seats, 77 districts are represented by one seat, and 35 districts are represented by three seats. The constitutional dilemma here is that the basis for the distribution of the parliamentary seats elected under the individual candidacy system is severely flawed, and is completely void of the principles of justice and equal opportunity. For instance, a candidate in a district represented by three seats would have to direct his electoral campaign at an area three times larger than if he were to participate in a district represented by just one seat. Thus, the candidate will have to address three times the number of voters in a geographical area three times larger than a district represented by one seat. Voters, too, are denied justice and equal opportunities under this distribution of seats, for it is unfair that a citizen in one district is only represented by one seat while a citizen in another district is represented by two or even three seats. It would have been more appropriate to distribute the 420 seats designated to be elected under the individual candidacy system across an equal number of electoral districts, with each district being represented by one seat. Alternatively, the 420 seats could have been distributed across 210 districts, with each district being represented by two seats.
Challenges have also been raised against the distribution of the 120 seats designated to the party lists system. The law on the division of electoral districts stipulates that these seats shall be distributed across only four lists. Two lists are made up of 45 seats each, one representing six governorates and the other representing eleven. The other two lists are made up of 15 seats and represents seven and three governorates each. Plaintiffs calling for this distribution be ruled unconstitutional, say that it is a clear violation of the principles of equality and equal opportunity for both candidates and voters, according to the same logic used in the case of the individual candidacy seats. Why would the entire nation be divided into only four lists, with two of these lists comprising 45 seats each? Such a distribution imposes a major burden on candidates, who must be active across a large number of governorates. Moreover, there are major discrepancies between the lists in terms of the number of governorates and the geographic areas that they represent.
Article 8 in the House of Representatives Law is also the subject of several of these lawsuits. The article stipulates that parliamentary candidates must hold only the Egyptian nationality. The constitutional problem in this case is that this restriction on the right to participate as a parliamentary candidate violates Article 102 of the Egyptian constitution. While the Constitution stipulates candidates must hold Egyptian nationality, it does not stipulate that they must not hold any other nationality. The imposition of this restriction by the law represents a violation of the constitution. The restriction would also deprive many competent, experienced individuals of the possibility of participating in political life in Egypt, simply for having obtained a second nationality. Moreover, It is a major obstacle for Egyptians residing abroad to participate as parliamentary candidates, even though the law—for the first time—grants Egyptians permanently residing abroad the right to serve as members of parliament by participating as candidates on electoral lists. The law even specifies a number of seats that must be filled by such individuals: for a list comprised of 15 members, at least one candidate must be an Egyptian residing abroad, and for a list comprised of 45 candidates, at least three candidates must be Egyptians residing abroad. How can the law—which explicitly grants this right to Egyptians residing abroad, most of whom hold the nationalities of the countries where they reside—restrict this right by prohibiting those who hold other nationalities from participating as candidates?
In the Political Rights Law, Article 57 imposes a fine of 500 Egyptian pounds on “anyone registered in the database of voters who fails, without justification, to cast his vote in an election or referendum.” Many questions have been raised about the purpose of this article. This is not the first time that this article appears in the law—it has been present since the law’s issuance in 1956. Since its establishment, the article has never been applied. It is absolutely impossible to apply the penalty to the millions of Egyptian citizens who decide not to participate in elections or referendums, when on average, the number of registered voters who refrain from voting in any given election is at least 25 million. Instead, in practice, this fine could be used as a form of intimidating voters into participating, if it is found on polling days that electoral participation is weak. This normally occurs in rural regions and in Upper Egypt, where it is easier to influence people or to force them to vote by threatening them with a fine—even though no one will ever be forced to pay. The constitutional violation committed by this article, which criminalizes the failure to vote and punishes it with a fine, is that it contradicts a higher principle: that of the right to freedom of expression. Indeed, not going to the polls can in and of itself be a position or a way for the voter to express his opinion, no matter the reason. Such criminalization and punishment would violate the stipulation in Article 87 of the Egyptian constitution that voting is a right, and a decision not to exercise one’s right may never be criminalized, and so it is unacceptable that failing to vote be punishable by law.
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.