The Simple Legislative Solution: Presidential Elections First

On Sunday evening, interim President Adly Mansour formally ratified Egypt’s second constitution in the transitional period that has followed the overthrow of Hosni Mubarak in February 2011. Debate is now rife over which elections the interim president will determine should be held first. However, the answer seems simple: presidential elections will come first. Why? Because Egypt is yet to write a coherent and constitutionally accepted election law, and is now hampered by the tight time constraints given in the new constitution.

Most have chosen to focus on the political repercussions of the order in which elections are held, with rumors that army General Abdel Fattah al-Sisi himself will seek election to the presidency. These discussions revolve around the chance that a new president will take excessive liberties in his control over Egypt’s governance, fueling debates over the country’s reversal to authoritarianism. The decisive factor is, however, far more technical. Since Mubarak’s removal, Egypt’s numerous governments, parliaments and presidents have failed to write a coherent election law that passes the test of constitutionality. This coming period will prove to be no exception. For this reason alone, it is likely the interim president will look to avert another headache and simply call for presidential elections first, ignoring the fact that the situation is primarily borne out of a lack of forward planning and drafting errors within the new constitution.   

On July 3, Sisi announced a roadmap, confirming the ouster of elected president Mohamed Morsi. The announcement, along with the constitutional declaration issued on July 8 by Mansour, gave a clear outline for the transitional process: the amendment of the 2012 constitution, parliamentary elections to be held within three months of the ratification of the constitution, and presidential elections to follow the first seating of parliament (the date of which was to be announced by the new parliament).

This process has already exceeded its original timeline and changes made by the constituent assembly to the final draft of the constitution effectively cancelled the original roadmap. Article 246 of the new constitution annuls all previous declarations and constitutions. The new charter is now the superseding authority governing a new roadmap, and article 230 gives the interim president sole authority to announce which elections will follow the ratification of the constitution. These changes were made at the eleventh hour of voting within the assembly, as consensus could not be reached over not only the order of elections, but also the procedures to govern parliamentary elections. The new constitution now also places responsibility with the interim president to decide whether to use a parliamentary system of proportional representation or individual candidates, or a mixture of both. If a decision is taken to revert to a 100 percent individual candidate system, this would create much displeasure among political parties—most notably those parties who supported the military and transitional leadership since the July 3 coup.

Under the new constitution, the first elections must be held within the first ninety days following the referendum, and the second within six months. I.e.: if presidential elections are called first, parliamentary elections must be held within six months of the constitution being ratified.

Due to electoral procedure and the quagmire that has developed over the electoral law, it is virtually impossible for parliamentary elections to be held first. It is a much simpler process to hold presidential elections first and keep to the mandatory timeline. The PEC (Presidential Elections Committee) is well placed to stage these elections, using the authority given to them under article 228[1] of the constitution as well as the practices that presided over the 2012 presidential elections that brought Mohamed Morsi to power. Rules over eligibility of candidates are also entrenched in the new constitution. Issues that have prevented the passing of an electoral law, namely the mapping of districts in the country, do not apply to presidential elections, as they are based on the largest number of votes received nationally.

Parliamentary elections are a different ball game altogether. Not only must a new electoral law be drafted, it must be an electoral law that the Supreme Constitutional Court (SCC) does not declare unconstitutional. A precedent starting in 2011 has flagged this issue to lawmakers on several occasions.

In drafting a new law, legislators must work on fixing several issues that have ruled it unconstitutional in the past. Notably, it is no longer a requirement to seek the SCC’s prior review of the law before it is promulgated, as was the case in 2012, mandated by the previous constitution. While this eradicates lengthy review procedures, it does leave the door precariously open to the same scenario created by the SCC’s June 2012 verdict: the dissolution of an already elected and seated parliament upon the SCC’s ruling of the unconstitutionality of the law.

It should not be difficult to prevent the mistakes that led to the dissolution of the 2012 parliament—a ruling resulting from candidacy procedures that allowed political party members to run as individuals, but did not afford individuals the chance to run on party lists. The issues raised by the SCC’s 2013 verdict, however, will be much harder to rectify. Among many reasons given by the SCC in ruling the 2013 election law unconstitutional, a recurring issue was the mapping of districts across the country. Two attempts by the Muslim-brotherhood-dominated Shura Council (tasked with drafting the law) failed to pass because of this very issue. Worryingly, however, the SCC gave no guidance in its ruling as to what ‘constitutional’ district mapping might look like. So lawmakers will have to attempt to appease the court without any guidance or parameters to work within. 

The Shura Council indeed changed the mapping to apportion more seats to heavily populated areas in the country, a practice attempted once again after the SCC ruling on the issue. The court was in the middle of once again reviewing the law when the events of June 30 ensued. The court however, ruled this redistricting unconstitutional, despite it being an improvement on the districts originally mapped by the then-ruling Supreme Council of the Armed Forces in their 2011 electoral law. The SCC, in the ruling to dissolve parliament in 2012 did not cite mapping in its decision. This highlights a question of credibility and politicization of Egypt’s judiciary, of which the SCC had appeared to be immune. The 2013 decisions were taken in a climate when the judiciary, as a whole, was at war with Morsi and the Muslim Brotherhood (following the constitutional declaration by the president in December 2012 that gave him extra-judicial powers, effectively placing him above the laws of the country). It is unclear if the current political climate would affect their decision-making regarding a new law under a military-backed transition.

Certainly, the interim president may choose to draft the electoral law and announce parliamentary elections within the coming thirty days. However, the process of registering candidates (including the confirmation of eligibility and appeal window) would take another thirty days at least, which would leave very little time for campaigning. Further procedural issues over how and when to hold the elections could also further delay a sixty-day timeline, and would require a redistribution of polling stations and judges. In contrast, presidential elections can be held using the polling station distributions employed by the PEC in 2012 (with 13,000 polling stations, allowing for one judge at each). With fewer candidates and the candidate eligibility rules as outlined in the new constitution, the registration process would be simpler.

The transitional leaderships since 2011 have all commonly chosen to ‘ease’ the electoral roadmap, rather than tackle such legal issues, despite the situation being of their own making. The continued cycle of refusing to address this issue, means that we have come full circle over elections. It is unfathomable that there will not be a challenge over the electoral process raised at the highest level, taking us back to the situation of 2011–where a post factum decision by the courts will threaten the validity of an already seated and elected parliament. We are therefore left to follow the process as outlined by the interim president and simply hold our breath, waiting for the legal repercussions to kick in. The transition in Egypt, it seems, might just last a lifetime.   

[1] Article 228: The High Electoral Committee and the Presidential Election Committee existing at the time this Constitution comes into force shall undertake the full supervision of the first parliamentary and presidential elections following the date it came into effect. The funds of the two committees revert to the National Electoral Commission, as soon as the latter is formed.

Hafsa Halawa is a lawyer and a former member of the National Democratic InstituteShe was also a long term observer, covering Upper Egypt during the People’s Assembly elections of 2011-12. 

Image: Photo: Egypt Presidency