Democracy and the Supreme Constitutional Court of Egypt

JURIST Columnist Haider Ala Hamoudi of the University of Pittsburgh School of Law says that the Supreme Constitutional Court of Egypt's recent judgment disbanding the People's Assembly may result in a power imbalance between the three branches that could be exploited by a strong executive...

There has been much criticism of the recent decision of the Supreme Constitutional Court of Egypt to disband the People's Assembly, its lower house of parliament. However, there has been comparatively less consideration of the precise reasoning of the decision, and what it might suggest concerning biases in the Arab world among traditional forces against effective parliamentary politics. The matter is worth considering.

To put the matter in its proper legal context, in disbanding part of the legislature, the Supreme Constitutional Court upheld a challenge to a series of recent amendments to a 1972 electoral law as being in violation of the existing, provisional Egyptian Constitution [PDF] (often referred to as the "Constitutional Declaration"). The Constitutional Declaration was originally issued in March of last year by the Supreme Council of the Armed Forces ("SCAF"), Egypt's effective military rulers, and later amended by SCAF in September. Article 38 of the Constitutional Declaration, as amended, indicated that two thirds of the seats of the People's Assembly were to be reserved to political parties, and one third for independents.

The electoral law amendments did, as per constitutional mandate, reserve two thirds of the seats to political parties, to be selected via a "closed list" proportional representation system. Effectively, this means that the parties put together a slate of candidates that they have pre-selected, and voters must choose among the competing slates, but do not have the option of choosing their own candidate within any list. Each slate then earns the number of seats that is proportional to the number of votes it garners. However, crucially, the law also permitted members of political parties to run as independents for the remaining one-third of the slots in the People's Assembly, with their party affiliation included on the ballot. Independent candidates would then compete with these party members on an individual basis for that remaining bloc.

The Supreme Constitutional Court found this latter part unconstitutional, because it permitted party members, undoubtedly with the support of party resources and organization, to "crowd out" the independents. According to the Court, the purpose underlying Article 38, as amended, was to ensure that a broad cross-section of the Egyptian people was represented in the legislature. Allowing a party both to seek the two-thirds of seats which would be reserved to the parties, and to give the parties access to the remaining seats through affiliated candidates running for such seats was thwarting that purpose. As such, according to the Court, it was unconstitutional.

While many accounts have dismissed the Court as having acted at the behest of SCAF, which wanted a free hand to act as they wished, this is almost surely something of an exaggeration. There may indeed be real dangers to the Court's actions from a political standpoint, a question that has been amply debated by others. However, it is difficult to deny that the Supreme Constitutional Court of Egypt in its legal rulings has continually been concerned about the rights of independents to participate in elections. As Nathan Brown has pointed out, the Court has disbanded two other Egyptian parliaments in the past because the electoral rules unfairly favored party candidates over independent ones. Even a recent ruling over a draft law for presidential elections led to the Court disapproving of a provision that began presidential campaigns too early before the final list of candidates was created. Ordinary Egyptians who chose to run for president, the Court reasoned, would not have the legitimacy or capacity to carry their message to the voters until they appeared on a final slate. Accordingly, none should be able to campaign until that final slate is made public.

Nor, it should be said, is the desire for independents restricted to Egypt. Even as he was leading an effort to finalize a slate of Shi'a candidates to participate in Iraq's first national elections in 2005, Grand Ayatollah Ali al-Sistani took special care to ensure that a considerable number of independent candidates appeared on the slate. The reasoning offered by supporters was quite similar to that given by the Supreme Constitutional Court — a legislature should reflect the people it governs, and hence it must include a broad swath of ordinary and independent representatives untied to any political party. It would be a mistake, it seems, not to find this sentiment genuine, or to dismiss the Court's finding that Article 38 of the Constitutional Declaration had the purpose that the Court claimed it did to be somehow invented to satisfy a ruling military clique.

At the same time, it is fair to point out the actual results that seem to arise from a plethora of independents — results of which presumably institutions such as the Court are not unaware. To the extent that they remain independent (many end up joining coalitions of some sort), individual candidates unaffiliated with parties are not only themselves ineffective, but they contribute to the ineffectiveness of the entire deliberative body. The parliament is thereby rendered a querulous, indecisive institution that is virtually incapable of taking action, much less checking the power of the other branches, due to debating and squabbling within itself endlessly to no discernible purpose. While this is a complaint made against virtually any legislature, it is particularly acute when there is no party discipline of any kind that might be called upon to deliver needed votes in particular situations. If there is one thing that Egypt does not need in its current circumstances, it is even more division among those forces committed to democratic transition. The sad results of existing divisions are obvious enough.

Yet, of course, for any sitting executive seeking to consolidate power, such a legislature may be quite desirable. It helps to blunt suggestions of dictatorship (if nothing else, strident speeches will be made in the legislature against any alleged executive overreach), without actually providing anything that would check or balance executive power. Quite a few Arab dictators have managed such systems quite well, from Morocco to Jordan, and, of course, the entire membership of the Supreme Constitutional Court of Egypt lived and rose to prominence under something like it. Might this lead to a bias on the part of the judiciary, an ideological preference for an executive over a legislature, unarticulated and, indeed, perhaps unrealized by its advocates, but helping to drive the Supreme Constitutional Court to continually favor the greater presence of independents in the Egyptian legislature? At the very least, the possibility is hard to ignore.

Haider Ala Hamoudi is an Assistant Professor of Law at the University of Pittsburgh School of Law. His scholarship focuses on Middle Eastern and Islamic Law, particularly as it pertains to matters of commerce. Hamoudi spent most of 2009 in Baghdad advising the Constitutional Review Committee of the Iraqi Parliament, responsible for developing amendments to the Iraqi Constitution aimed at national reconciliation, on behalf of the US Embassy in Baghdad. He is currently preparing a book on the drafting and subsequent evolution of the Iraqi Constitution to be published with the University of Chicago Press. He maintains a blog on Islamic Law

Suggested citation: Haider Hamoudi, Democracy and the Supreme Constitutional Court of Egypt, JURIST - Forum, June 28, 2012, http://jurist.org/forum/2012/06/haider-hamoudi-scc-parliament.php.



This article was prepared for publication by Caleb Pittman, head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

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