SCC on Election Laws

Egypt’s Supreme Constitutional Court (SCC) has consistently struck down election laws that tilt the political playing field in favor of state-approved political parties or favor some groups of voters over others. The unifying constitutional principle evident in these cases is equality of political rights, including equal representation and equal opportunity for political participation.

The more complicated election laws are and the more the complications are due to elaborate schemes for treating some electoral districts or demographic groups differently than others, the more likely those laws are to be struck down as unconstitutional.

Pre-2011 Revolution Cases

In a line of cases beginning in 1987, the SCC ruled unconstitutional an election law limiting candidates in the 1984 parliamentary election to those on state-approved party lists because the law denied individual citizens the right to run for office as independents. The parliament elected pursuant to that law was ordered dissolved. 

After a new election in 1987 pursuant to an amended law allowing a limited number of individual candidacies (48 seats for independents versus 400 for parties), the ruling National Democratic Party (NDP)  took 348 of 448 seats. The Supreme Administrative Court annulled the election results for 78 of those NDP seats due to election fraud. The newly elected People’s Assembly recognized only seven of those judicial rulings, and simply ignored the rest.

Subsequently, the constitutionality of the 1987 People’s Assembly election law came before the SCC. The government argued that the constitution in effect at that time expressly authorized a hybrid individual and party list electoral system (as does the 2014 constitution today). However, in a ruling announced in 1990, the court ruled that the constitution must be interpreted as an organic whole, and when viewed as a whole the language authorizing hybrid lists was limited by and could not be implemented in a manner violating other articles guaranteeing citizens equality of opportunity and rights. 

In response to a government argument that individuals were free to join a party of their choosing and enjoy the benefits of running as party candidates, the court held that the constitutional guarantee of freedom of opinion prevented the government from compelling citizens to participate in political parties (especially only government-approved parties). Because the law went too far by favoring party candidates over individual candidates, the law was found unconstitutional, and the unconstitutionally elected 1987 parliament was ordered dissolved.

Two similar rulings from the SCC forced comparable reforms to the electoral laws of both the Shura Council and local councils.

A new election law was adopted that completely abandoned the party list system in favor of 222 two-seat districts, one being an open seat and the other reserved for workers and peasants as required by the 1971 constitution. 

After the ensuring (and notorious) 1995 elections, the administrative courts ruled that the election results were invalid for 226 of the 444 seats in the People’s Assembly, and that the election winners in those districts were disqualified. But, not a single seat was vacated because the NDP-dominated People’s Assembly claimed language in the 1971 constitution gave that body, not the judiciary, exclusive jurisdiction to decide the validity of the membership of its members, even though on its face that provision related only to qualifications for office rather than legality of an election. In effect, the government simply ignored the court rulings.

Post-2011 Revolution Cases

Against that background, when hybrid party list/individual candidacy parliamentary election laws were decreed by the Supreme Council of Armed Forces (SCAF) in 2011, many knowledgeable observers, including the SCAF itself, expressed serious doubts about their constitutionality. The SCAF said that they were compelled to adopt that formula by the newly-emerging, post-revolution political parties, which feared that if individual candidacies were allowed, then the NDP, though banned, would marshal its still-considerable resources and organization behind former members running as individual candidates.

When the constitutionality of the 2011 People’s Assembly election law came before the SCC in 2012, following the 2011-12 election, the court cited its prior jurisprudence in holding the law to be unconstitutional for stacking the deck in favor of party candidates—same operative facts, same law, and same ruling as in pre-2011 revolution cases, the only difference being that this time the political tables had been turned. Ironically, the SCC was widely accused of being political for failing to alter its jurisprudence to avoid the political consequence of dissolving the first post-revolution People’s Assembly.

In a May 2013 ruling that continues to hang like a sword of Damocles over current election laws, the SCC found nine articles of a proposed political participation law to be unconstitutional, including provisions banning military and police personnel from voting. The court’s reasoning was simple: the constitution guarantees every citizen the right to vote; military and police personnel are citizens; therefore laws depriving military and police personnel of their right to vote are unconstitutional.

The 2014 constitution states in Article 87: “The participation of citizens in public life is a national duty. Every citizen has the right to vote, run in elections, and express their opinion in referendums. The law shall regulate the exercise of these rights. Performance of these duties may be exempted in cases specified by the law.”

While it could be argued that the last two sentences authorize legislation prohibiting military and police personnel from voting, such an argument would ignore two critical distinctions: (1) the distinction between rights and duties, meaning between denial of the right to vote and relieving military and police personnel from the duty to vote; and (2) the distinction made in Article 92 of the 2014 constitution between authorized regulation of the exercise of a right and prohibited denial of a right: “Rights and freedoms of individual citizens may not be suspended or reduced. No law that regulates the exercise of rights and freedoms may restrict them in such a way as infringes upon their essence and foundation.”

Absent a constitutional amendment, if challenged and if the SCC adheres to its prior jurisprudence, any current or future election laws prohibiting military and police personnel from voting will likely be ruled unconstitutional. But, the SCC will only rule on that issue if a litigant in another court raises it and that court refers the issue to the SCC for decision.

In May 2015, the SCC upheld one challenge raised to the constitutionality of House of Representatives Election Law 202 of 2014, and rejected two others. 

The first challenge was to the constitutionality of Article 8(1) of the election law, which stated, “Subject to the provisions prescribed in the law regulating the exercise of political rights, whoever is nominated for membership to the People’s Assembly shall fulfill the following requirements: (1) Be Egyptian, solely hold the Egyptian nationality, and enjoy full civil and political rights; …”

In contrast, Article 102 of the 2104 constitution requires only that members of the House of Representatives be Egyptian citizens, with no prohibition on dual nationality.

The SCC held that no citizenship requirement for eligibility to serve in the House of Representatives could be imposed by statute (or Presidential decree in the absence of a legislature) beyond that specified in the constitution. Because the election law added a requirement that candidates hold only Egyptian citizenship, that additional requirement was an unconstitutional infringement on the rights of citizens to run for and hold elected office, as guaranteed by Article 87 of the constitution.

In response to an argument by the State Litigation Authority that dual nationals have divided loyalties, the court reasoned:

• Loyalty is a matter of emotion, and may not be permissibly assumed in the absence of evidentiary proof;
• Article 6 of the constitution provides that citizenship is a right to anyone born to an Egyptian father or an Egyptian mother, and the constitutional rights of such citizens cannot be permissibly infringed solely on the basis of assumed disloyalty due to dual nationality; and
• Dual nationality is legally permissible, and it is impermissible to deprive a person of a constitutional right due to the exercise of a legal right.

The second challenge raised by the plaintiff was to provisions of the election law relating to voting by nationals living abroad, namely failure to create electoral districts outside Egypt and for including only one Egyptian living abroad in electoral lists for each 15-representative district and only three for each 45-representative districts. (Note: No challenge was raised in this particular case to the inequality of the number of representatives in some electoral districts as compared to others.) The court rejected both challenges.

With regard to the challenge to the failure to create electoral districts for citizens living in foreign countries, the court reasoned: 

• The requirements of Article 102 concerning equal and fair representation of population, governates, and eligible voters among electoral districts applies only to the geographic area of the Republic of Egypt, and not to foreign countries; and
• Were electoral districts to be formed abroad, it would be necessary to remove the names of voters living abroad from their domestic voting districts in order to avoid double counting, which would entail cutting their ties and reducing their bonds connecting them to the nation.

With regard to the challenge to including only one or three citizens living abroad on electoral lists for 15 and 45 representative districts, respectively, the court reasoned:

• The conditions of including one or three citizens living abroad on electoral lists were only minimums, and did not preclude the inclusion of additional candidates living abroad; and
• Nothing precluded candidates from living abroad from running for election on individual candidacy lists, and thus increasing their relative percentage of representation in the legislature.

For summaries of individual cases, click here.

For further reading regarding pre-2011 revolution cases, see the discussion in Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007), 97-100.