Tuesday, Jun 12, 2012
By Matt Bradley
CAIRO--Egypt's highest court will begin considering two challenges this week that have the potential to force reruns of the country's historic elections, just days before Egyptians are due to choose their president.
The Supreme Constitutional Court will begin hearings Thursday, two days before the presidential vote's final round, to determine the constitutionality of a law governing parliamentary elections. It will also consider a statute that would exclude a presidential finalist over his connection to the ousted regime.
The cases add a layer of uncertainty to an already chaotic election cycle. Egypt's 16-month transition to civilian democracy has so far been marked by a hazy military-imposed road map, protests and wrangling over which political forces will take the lead in writing a new constitution. Even as Egyptians prepared for new elections, Hosni Mubarak's health weakened, with the 84-year-old former president slipping in and out of consciousness Sunday and Monday, the Associated Press reported.
The decisions pending at Egypt's top court hold the potential to force a repeat of the country's parliamentary race, its presidential election, or both--decisions that could wind back the clock to military leadership. Any repeat of the hard-fought elections could lead to different outcomes, as Egypt's public appears increasingly frustrated with the Islamist candidates who swept parliamentary elections six months ago, according to polls and subsequent presidential voting.
(This story and related background material will be available on The Wall Street Journal website, WSJ.com.)
The 18 judges on Egypt's Supreme Constitutional Court were appointed, with few exceptions, during Mr. Mubarak's era. About half came to the court during a period of staunch judicial independence during the 1980s. Others arrived under the Mubarak regime's later efforts to stack the bench with cooperative justices.
"It's a court that has difficulty acting coherently," said Nathan Brown, an expert on Egypt's legal system and a professor of political science at George Washington University.
Complicating attempts to anticipate the court's decisions, justices are at odds over which basic law governs Egypt, according to one of its justices. There is Egypt's 1971 constitution, which was suspended in February 2011; articles in a constitutional referendum passed in March 2011; and a 63-article constitutional declaration the interim ruling military issued last spring. All three may apply, this justice said.
Judges in lower courts have made several decisions in recent months that have run afoul of Egyptian politicians and threatened the stability of the emerging democracy, in particular an April decision that excluded the top three presidential candidates on various legal grounds. Reflecting the increasing acrimony between the judiciary and other organs of government, Egypt's Islamist-dominated parliament drafted legislation several months ago, which was eventually scrapped, to rein in the supreme court's power.
In a matter seen as having the most immediate importance, the court is set to weigh the constitutionality of a law that effectively bars Ahmed Shafiq, the final prime minister under Mr. Mubarak, from competing in the runoff that begins Saturday.
Parliament had rushed to pass the so-called Isolation Law in April, before the first round of elections, with the intent of barring Mr. Shafiq and another ex-regime stalwart from running for president because of their allegiance to the former regime.
A similar law was used during the 1950s to bar officials who were aligned with the ousted colonial-backed monarchy from running for office. But the Isolation Law is constitutionally dubious in part because, unlike the earlier blanket ban, it was written in a way that appeared to target specific individuals--disqualifying vice presidents or prime ministers, for example, but not other top officials--say legal experts.
The effect of a negative verdict on elections is unclear. Legal experts have disagreed as to whether leftist candidate Hamdeen Sabahi, who came in third place during the election's first round last month, would simply run in Mr. Shafiq's place against the Muslim Brotherhood's Mohammed Morsi, or if such a decision would require the first round of elections to be run again.
The court will also entertain a challenge to a parliamentary elections law passed by the interim ruling military council last fall that reserves one-third of Egypt's Parliament for independent candidates and the other two-thirds for candidates from political parties.
Under pressure from political groups who hoped to exclude independent candidates with ties to the ousted regime, the military altered the law at the last minute to let party members compete for independent seats, but didn't extend the same opportunity to independent candidates.
The court will consider whether the law violates a so-called principle of equality that legal experts say is vaguely implied by Egypt's 1971 constitution.
The top court has used the same principle to overturn three parliamentary laws in as many decades--verdicts that in two cases forced Mr. Mubarak to dissolve parliament.
In at least one case, the court cited precedents from a U.S. Supreme Court decision, Baker vs. Carr, on legislative redistricting, according to Mr. Brown.
An advisory board to Egypt's supreme constitutional court has already issued a non-binding recommendation last week that called the law unconstitutional. "It is unconstitutional without a doubt," said Yehia Al Gammal, a prominent Egyptian legal expert and former deputy prime minister.
Here, too, the possible impact of a negative ruling isn't clear. Experts disagree about whether judicial authorities would need to run elections again for all the seats in Parliament or just the one-third in question.
Murkier still is whether a negative verdict would cancel a constituent assembly charged with drafting Egypt's new constitution. The assembly was supposed to be selected by members of parliament this week, but its future was also thrown into jeopardy when liberal politicians stormed out of the deliberations Sunday night due disagreements over a power-sharing deal.
The Muslim Brotherhood's Freedom and Justice Party was among the political parties that originally urged Egypt's military to allow party members to run for independent parliamentary seats--a rule that may now force the court to dissolve the parliament in which the Brotherhood's party populates nearly half the seats.
How constitutional experts neglected to catch the elementary gap in the article during its drafting has led some to believe that the court's consideration amounts to a political attack on Islamists.
"During the writing of this law, there were people from the constitutional courts who were present in the meetings with the military," Abdel Moneim Abdel Maqsoud, a lawyer for the Brotherhood. "They are the ones who phrased it this way, and they did not object at the time, so I imagine that there is some politics in the mix."
Write to Matt Bradley at firstname.lastname@example.org
(END) Dow Jones Newswires