The elections law conundrum is proving harmful for Islamists

In its race to come up with a constitutionally viable parliamentary elections law, the Islamist-dominated legislature is trying hard to balance its interests with possible challenges from the judiciary.

The Supreme Constitutional Court (SCC) is currently considering the House of Representatives’ elections law issued by the mostly Islamist-dominated Shura Council after the Supreme Administrative Court suspended polls slated for 22 April. In its verdict, the administrative court said the Shura Council, which is the current legislator, had to refer the elections law to the SCC to rule on its constitutionality.

The ruling came after the Shura Council decided not to resend the law that was hastily drafted to the SCC, after the latter had initially submitted 10 reservations about it. The court had asked for amendments to the law so that the upcoming parliament did not risk a dissolution based on the lack of constitutionality of its governing law, which was the fate of the 2012 Parliament.

But the court’s reservations reflect how, in their quest to maximize their gains from the upcoming elections, Islamist lawmakers have shot themselves in the foot, according to experts.

After failing to get around the condition of sending the amended law back to the SCC for review, legislators have risk stalling the political road map. With the elections delayed to a non-specified date, and the elected House of Representatives initially tasked with working with the president on appointing a new Cabinet, the political landscape remains obscure, particularly amid rising demands for a Cabinet change due to its perceived failures.

In an attempt to step out of this impasse, the Shura Council is looking into an alternative draft that is to be submitted to the SCC, instead of waiting for its verdict on the current draft. While the court is expected to take up to 60 days to rule on the initial law, it would only take up to 45 days to review a new draft.

Lawyer and Director of the Arab Center for the Independence of Judiciary Nasser Amin says the Shura Council is paying for the weak legal expertise of its current legislators.

“Legislative flaws happen when personal interests collide with the process, and legislators forget the tenets of legislation, which is to achieve public interest, not just the interests of the parliamentary majority,” Amin says.

He believes the Muslim Brotherhood’s Freedom and Justice Party has clear objectives, which are to maintain its parliamentary majority and to attain that goal as soon as possible.

However, Ramadan Bateekh, Wasat Party leader and member of the Shura Council Legislation and Constitutional Committee, which drafted the initial law, disagrees with Amin.

“As legislators, we have not committed errors because we are not ignorant of the new Constitution. We formulated a draft law, we sent it to the Supreme Constitutional Court the first time, and the court responded with remarks that have been amended. Although I believed we had to send the draft law again to the court for final approval, the majority thought otherwise,” Bateekh says.

In its reservations, the SCC referred to a series of flaws in the draft law relating to the political isolation clauses of figures belonging to the formerly ruling National Democratic Party (NDP), the distribution of electoral districts and the military service prerequisite for parliament candidacy.

One of the contentions of the initial draft is the clause barring former NDP figures from political work if they were members of either of the two parliaments preceding the revolution, namely the 2005 and the 2010 parliaments. The Constitution instead provides for the political isolation of any parliamentary member in both the 2005 and 2010 parliaments.

This linguistic error around the use of the preposition “or” instead of “and” would have cost the legislators having to include a significant number of former NDP figures in the upcoming elections, after the Constitution had initially barred about 1,800 of them from upcoming political activities. For electoral experts, the presence of some NDP figures could have some effect on voting outcomes in places like Upper Egypt, where the formerly ruling party had a strong base of support.

Another contention in the initial draft of the law is the distribution of electoral districts, which contradicts the constitutional principle of following the number of people in each governorate.

The elections draft law increased the number of MPs under the House of Representatives from 508 to 546 by adding a new district to the series of districts over which electoral lists are competing, and eight districts to the ones where single candidates are competing.

These additions have changed the electoral map in six governorates without solving more intricate problems related to the logic of districts’ distribution in the country, such as the discrepancy between the number of seats granted to a given governorate and the size of its population. For example, Upper Egypt’s Sohag includes 4.2 million people represented by 30 seats, while Cairo includes 4.7 million people represented by 24 seats.

Maged Othman, director of the Basira Center for Polls, sees a difficulty in dividing electoral districts in relation to population in governorates because that could affect voters’ turnout.

“Dividing electoral districts should be administratively managed according to the place of residence stated in the voter’s identity card,” he says. “Dividing electoral districts in order for each to include the same number of voters is practically difficult because that would mean that polling stations may be far from where the voter lives, which may discourage him from casting his ballot.”

Othman says the mistake legislators committed is that they did not take into account the geographical divisions of the different districts.

“They formed new electoral districts that included neighborhoods apart from each other,” Othman adds.

Bateekh recognizes this gap, and says it’s being revisited.

“We are currently adopting a new vision for the districts’ distribution through the number of voters in each governorate,” Bateekh says. “We noticed a discrepancy between the number of seats and that of the corresponding governorates and we are trying to fix this discrepancy according to voters’ numbers.”

Bateekh expects minor discrepancies after the redistribution is completed, but anticipates that the SCC will accept it, given the level of complexity of the matter.

“We will try to reach the best electoral districts distribution, but gradually, because there are administrative and geographical issues at stake,” Bateekh adds.

But for Amin, the situation showcases how the legislators have hurt themselves.

He says the lawmakers originally divided electoral districts in a way that reflects their interests, based on previous experiences in the presidential and parliamentary elections in 2011 and 2012. This process was aided by the fact that the lawmakers could gather from the bureaucracy, which is now managed by an Islamist authority as well.

Amin gives the example of Maadi neighborhood, known for having an anti-Islamist bent in elections. Lawmakers separated Maadi from Helwan area, and added it to the areas of Dar al-Salam and Basatin, known for their poor and dense populations, which, in their minds, usually vote for Islamist candidates in return for food supplies and other incentives.

Hence, the anti-Islamist constituents of Maadi would be diluted in a bigger pool.

A third contention Amin expects regards the banning of those who have not performed the mandatory military service from contesting elections, which is the condition of many Islamists subjected to political trials in the old regime. The lawmakers originally disregarded this condition, and allowed candidates to run, even if they have records from the disbanded state security apparatus.

In their amendment, the lawmakers wrote that if candidates have been spared from judicial rulings, they can still run even though they have a record in the state security apparatus. Amin says the Islamist lawmakers are trying to maximize their gains from this clause by not barring important allies, such as Jama’a al-Islamiya — many of whose members have state security records.

This piece was originally published in Egypt Independent's weekly print edition.

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