MENASource|News, Analysis, Perspectives

June 24, 2014
In an uncharacteristically immodest burst of activity, Egypt’s humble and stolid acting president, Adly Mansour, issued a series of last-minute decree-laws before handing authority over to President Abdel Fattah al-Sisi. Some dealt with harassment, preaching, and littering. He still showed caution and restraint in some significant areas—for instance, a set of legislative changes designed to combat “terrorism,” will have to wait for his successor. But most controversially, he decreed a set of legal changes for upcoming elections for Egypt’s new House of Representatives. Those changes are contained in a new law for the parliament and a significant set of amendments for the “Law of Exercising Political Rights” governing elections to the parliament.

Parliamentary elections will mark the end of Egypt’s transitional roadmap, adopted by the interim authorities after former president Mohamed Morsi was ousted by the military last July. The new parliamentary law will have a significant impact on the character of the legislature that will be elected in the coming months to work with Sisi. The electoral system it adopts will help to swing the political balance even further toward the president, in a constitutional and political environment that is already heavily tilted toward the executive branch. Questions on the legal context of the new law, as well as what to expect from the legislature it will produce, are addressed below.    

Why Was a New Law Needed?

Under the 2014 constitution, procedures for parliamentary elections must begin by July 18. It is not quite clear what “procedures” are required, but whatever they are, they clearly require a legal foundation. And there has been none for two years—Egypt’s last parliamentary election law (negotiated among leading political actors and then decreed by the then-ruling military council) dates to 2011 but was overturned by the Supreme Constitutional Court (SCC) in June 2012, leading to the dissolution of the lower house of the parliament.  The upper house of the parliament (or Shura Council) made three attempts to draft a new law in 2013, but the first two were turned back by the SCC; Mansour disbanded that upper house as one of his first actions when he was slotted into the interim presidency by the July 3 military coup so the SCC never ruled on the third draft.

What Are the Key Provisions In The New Laws?

Originally slated to be 630 seats, the final legislation peoples the parliament with at a still-sizeable 567 deputies, 59 larger than Egypt’s 2011 parliament. A significant majority of those seats—420 of them—will be elected by an individual candidate system, while 120 will be elected via a list system and the remaining 27 will be appointed by Sisi.

This distribution has proven to be the most controversial part of the law. Most of Egypt’s political parties, including older institutions such as the Wafd and newer, post-revolutionary parties such as the Social Democrats, had actively campaigned for a greater weight to be given to a list system that would favor party representation. To add insult to injury, even the 120 list seats fail to meet this criteria. They will be distributed across four districts, two with 15 seats and two with 45 seats. Rather than using 2011’s proportional representation, only the list that wins an absolute majority in each district will receive any seats. Nor are the lists reserved solely for political parties—independents can form their own lists, too.  Such a provision would allow for networks of powerful local figures—the kind who used to be the backbone of the now-dissolved National Democratic Party of Anwar al-Sadat and Hosni Mubarak—to make a comeback without forming a party or hoisting an ideological banner.

At first glance, there will be some compensation for parties since they will be allowed to run their members for the individual candidacies if they like. But if they do so, the MPs will owe their seats to their own standing and might be difficult for the parties to direct.

The lists are to be the mechanism for providing representation to marginalized groups. The law establishes quotas that the lists are mandated to fill, though only in the upcoming elections. In the two 15-seat districts, each list must include seven women, three Christians, two workers or farmers, two youth, one disabled Egyptian, and one expatriate. In the two 45-seat districts, the lists are required to include triple those numbers for each group. The seats appointed by the president are supposed to play the same role—they are intended for experts, minorities, and women, and the law forbids the president from appointing representatives in a way that alters the partisan balance in the House.

The laws cover all sorts of other areas as well (they regulate campaigning and polling, for instance) but most of the controversy in Egypt has focused on the way that seats are to be allocated.

Is the New Law Constitutional?

Probably. After all, it was the chief justice of the SCC, temporarily seconded to the country’s presidency, who issued it. And according the law’s preamble, he consulted virtually any relevant legal and judicial body in the Egyptian state before acting.

Of course, if there were a constitutional challenge to the law (and it is hard to think of anything in Egypt that is not a potential constitutional dispute) Mansour would likely feel compelled to recuse himself.

But his oversight probably still made a significant difference in ways that make it likely that this will be Egypt’s first parliamentary election law ever to survive SCC scrutiny. Mansour is a famously cautious figure, and he seemed to have hesitated up to the last minute before approving any law, likely reluctant to add his name to any provision that could run afoul of his SCC colleagues.

By striking down so many parliamentary election laws, the SCC has given many clues on what must be done to survive its scrutiny. In fact, the drafters of the 2012 constitution, so fearful that the SCC would dissolve any parliament, required the Court’s review of any law before it could be promulgated. By rejecting the law twice in 2013, the justices gave many pages of guidance for the 2014 drafters—and Mansour himself would have been involved in those 2013 deliberations. The provisions allowing non-party members to form electoral lists and permitting party members to run for individual seats, for instance, come in part as a response to past rulings.

There is one matter where SCC guidance has been incomplete: districting. The Court did hold that the 2013 drafts were unconstitutional in the disproportionate nature of their districts. The claim had real merit, since parliamentary election districts have always been unequally distributed throughout Egyptian history. But the SCC did not make clear what precise standard has to be met. So the new laws omit the size of the districts, perhaps hoping that shorn of such a difficult issue, the laws will be inoculated against constitutional challenge on such grounds. The question of details for the districts has been left instead to another, special law that has not yet been issued.

Who Will Make It Into The House?

The 420 seats to be elected via the individual candidate system (and perhaps the 120 reserved for lists) will likely be dominated by wealthy independents and local bosses with ties to Egypt’s security forces, tribes, and Mubarak’s former National Democratic Party. With the money to finance their campaigns and the networks to turn out voters, these candidates will make up a significant component of the future House. The recent presidential campaign, in fact, gives some idea of what to expect. Prior to the election, private businessmen funded Sisi campaign posters, often displaying themselves prominently in the process. And as turnout failed to materialize during the election, Egyptian officials were reported to have turned to various state bodies, local bigwigs, and tribes—the traditional mobilizers of Egyptian voters—to bring people to the polls.

Dozens of political parties have formed in Egypt since the 2011 revolution, but only a small number have previously shown any electoral abilities, and meaningful party representation in the legislature is likely to be minimal. The Freedom and Justice Party—the electoral arm of the Muslim Brotherhood—clings to formal legal existence, but its leadership and rank and file have been decimated by the wave of post-July 3 repression and the party is likely in no mood to run. Another formerly successful party is the Salafi Nour Party, but its electoral abilities, while impressive in 2011 when it was first founded, are uncertain after it has thrown its lot in so heavily with the new regime. And both parties are legally quite exposed by a constitutional ban on religious parties. The Wafd, the leading party of the pre-1952 era, retains some skeletal national structure (and a fractious leadership), and it is attempting to build an electoral alliance that has attracted interest from some other parties. But its appeal and ability to reach out to voters seems limited. No other party can boast of a meaningful national structure, though a few organizations—such as Ahmed Shafik’s Egyptian National Movement—might be able to cobble together some of the remnants of the old regime and other wealthy independents to perform credibly at the polls. If they do so, however, these parties are likely to operate more as groups to coordinate the efforts of opportunists than as parties standing for an established set of principles or programs.

It remains to be seen how, or if, Sisi will attempt to influence the elections. Amr Moussa, an adviser to the president, has announced plans to form an electoral alliance; however, it is unclear to what extent the initiative has Sisi’s blessing, and in any case, the idea has been criticized in some quarters and has so far failed to acquire any significant support. Several potential coalitions are in the process of forming, including at least two that have explicitly defined their purpose as supporting the president. Whether any of these various coalitions can attain sufficient party and independent support and then maintain enough cohesion to be a real force in the elections is an open question. 

How Will The House Function?

The legislature that will result is unlikely to be much of a political force. The large size established by the new law, combined with the likely mix of independents and marginal or weak parties who will make it in, suggests that it will lack internal coherence, a collective popular mandate, or any sort of independent agenda. The Egyptian parliament has rarely been an effective legislative body, so the tools for any positive agenda would have to be forged, something difficult for the likely mix of local power brokers that will take their seats later this year.

The representatives will be generally loyal to Sisi and his regime, though internal divisions are likely to persist if the heated maneuvering currently taking place over electoral coalitions is any guide.  Actual policymaking will be reserved for the president and his government—the president has the first shot at appointing the prime minister, and both the president and cabinet ministers have the ability to introduce legislation. The broader political context in which the elections will take place, defined by severe repression and the exclusion of dissenters, also means that opposition forces are unlikely to secure any meaningful representation they can use to challenge Sisi. Though the Nour Party may bring a small dose of ideological diversity to the House, the past year implies it will be superficial and unthreatening.  

Egypt’s most recent constitution does provide the legislative branch with potentially significant tools to check the power of the executive—for instance, the ability to impeach the president or hold a vote of no-confidence against him or his government. But these powers assume an independence and coherence to the House that is unlikely to materialize, and even then the constitution’s balance of power still favors the president by a wide margin. Under Sisi, the legislature will be a secondary player.

Could The House Still Cause Problems for Sisi?

A weak House could still be unpredictable enough to frustrate Sisi at times. As president, he will confront a major economic crisis, severe political and social polarization, and a restive population that ousted two presidents in as many years; furthermore, as the most prominent and powerful public official in Egypt, he will be held most responsible for what takes place during his presidency. If Sisi is to resolve these challenges, he will likely need to implement reforms that could be broadly unpopular, such as reducing fuel subsidies and raising taxes. The constitution also charges the House of Representatives with passing a series of laws after its election that could prove controversial (transitional justice and church building, for instance), and it requires two-thirds majorities to pass laws related to important issues such as elections, constitutional rights, judicial bodies, and political parties.

Sisi seems to be trying to get a head start on these issues—on June 16, he issued a decree forming a Supreme Council for Legislation Reform that will begin preparing draft laws, some of which the president may issue before the House is elected. Still, he will need a legislature that can pass tough legislation, either by contributing as an active partner or quietly approving whatever laws the body is told to pass. The former seems unlikely to materialize, but the latter, though more likely, could occasionally be problematic as well. A legislature that is too weak to take the initiative could still be difficult to manage smoothly from the top.  Pro-Sisi members will owe their election to their own vote-getting abilities, which, particularly in the absence of a well-organized political party, will not be completely dependent on ties to the president. With Egyptian politics still unsettled, controversial issues with the potential to rouse public anger could reward grandstanding and thunderous defenses of the rights of the people, or at the very least elicit sharp, public complaints from the House. Even the House’s loyalty to Sisi could conceivably change at some point, given the right circumstances. If Sisi begins to be perceived as a failure and Egyptians start to turn on the president, the legislators could too, gradually distancing themselves from him with perhaps a few even leaping off what they see as a sinking ship. Of course, even if this happens, they are unlikely to be able to build their own alternative, leaving Egyptian politics right back to the period of feckless authoritarianism so many Egyptians thought they had left behind them.

Nathan J. Brown is professor of political science and international affairs at the George Washington University, nonresident senior associate at the Carnegie Endowment for International Peace, and author of When Victory is Not an Option: Islamist Movements in Arab Politics (Cornell University Press, 2012).

Scott Williamson is a junior fellow at the Carnegie Endowment for International Peace.