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The Parliamentary Election from a L

The Parliamentary Election from a Legislative Point of View
Whereas the Egypt Legal Update normally covers only subjects that are of strict relevance to economic activities, it has sometimes during the last two years dealt with some laws and decrees concerning the constitutional and legislative framework in Egypt when they have had a direct impact on the economic outlook and investors’ expectations in Egypt. Accordingly, this edition of Egypt Legal Update will describe the legal position of the forthcoming parliamentary election in light of their importance to the economic outlook in Egypt.
The Overall Framework
After the Constitution's approval with a 64% majority in a public referendum,[1] parliamentary elections must now be carried out within sixty days from the date of the Constitution’s passing, in accordance with Article 229 therein. Based on the transfer of legislative power to the Shoura Council according to Article 230 of the new Constitution, the Shoura Council is responsible for the promulgation of an elections law in order for Article 229 to be complied with. The Shoura Council discussions concerning the elections law have shown a general preference for the amendment of the existing elections law as opposed to the establishment of a completely new one. For that reason, the Shoura Council discussions have been limited to amending Law No. 38 of 1972 on the People's Assembly and Law No. 73 of 1956 on the Exercise of Political Rights. These laws are part of the exceptional laws that are subject to review by the Constitutional Court before they can be enacted. Hence, any amendments regarding these laws shall be referred to the Constitutional Court for previous inspection in order to check that the laws and their amendments conform with the Article 177 of the new Constitution which states the following: "The President or the Parliament shall present the proposed laws regulating the exercise of political rights, the presidential, parliamentary and municipal elections to the Constitutional Court before its issuance to check its conformity to the constitution. Its rulings in this respect shall be issued within forty-five days since the date of presenting the law to it; or else non-issuance of a decree shall be counted as an acceptance for the suggested articles. In the event, the Court rules an article or more does not conform with the constitution's provisions, its ruling has to be realized. The above mentioned laws referred to in the first paragraph shall not be subject to subsequent inspection as stipulated in Article (175) of the constitution".
Amendments to the Elections Law
The Shoura Council’s President indeed referred certain amendments of the Elections law to the Constitutional Court on 19 January 2013, taking into consideration the sixty days’ period since the Constitution's approval in which new elections procedures must begin. Constitutional Court Ruling No. 1 of 2013 in its hearing held on 17 February 2013,[2] held that eleven of the amendments undertaken by the Shoura Council were not in conformity with the new Constitution. Therefore, these amendments are unconstitutional and have to be referred back to the Shoura Council either to be amended in order to conform with the Constitution, or to be cancelled entirely. The unconstitutional articles were returned to the Shoura Council where they were debated and - with the Constitutional Court’s note in mind - a group of changes have been made in order to ensure that the amendments are constitutional. In this process, the Shoura Council issued Law No 2 of 2013 amending some provisions of Law No. 38 of 1972 on the People's Assembly and Law No 73 of 1956 on the Exercise of Political Rights.[3] These laws make it a requirement to refer to the main amendments made to the existing laws. These amendments are as follows:
  1. Widening the definition of a worker while running for parliamentary elections to include any person working for a third party in return for a wage or a salary, and this is consistent with Article 229 of the Constitution. This amendment has applied the first item of Constitutional Court’s ruling.
  1. Rescinding membership to the Parliament in the event a member changes the capacity through which he ran in the elections whether as a farmer or worker or by changing his affiliation from an independent to a party representative and vice versa. This amendment was established in application of the second item in the Constitutional Court’s ruling.
  1. Increasing the number of elected members in Parliament to 564 rather than 498 as was the situation under Law No 120 of 2011.[4] This is consistent with the third item of the Constitutional Court's ruling mentioned above.
  1. The Parliament shall be elected through two electoral systems. Two thirds through a closed list system, while one third through the individual election system. Party members and independents are entitled to run in both systems. This ensures that the new Parliament shall not be dissolved on the same basis as the last Peoples' Assembly in 14 June 2012, which did not allow independents to prepare election lists and simultaneously allow party members to run for the individual seats. This represented a violation to equality and equal opportunity principles.
  1. A minimum threshold for closed lists in each governorate has been introduced, through which a list that receives a total of less than one third of the seat's share of the constituency's valid votes shall not be represented in the Parliament. In the event no list has received more than one third of the seat's share from the constituency's valid votes, the remaining seats shall be distributed upon the remaining lists according to highest remaining votes for each list.
  1. Sequestering National Democratic Party leaders, including members of the General Secretary, the Political Bureau, Policies Committee, or members of the Peoples' Assembly and the Shoura Council in the Parliamentary terms of 2005 and 2010. This amendment executed the seventh item of the Constitutional Court’s ruling.
  1. The electoral sub-committees shall produce a preliminary counting of the number of voters as well as the number of votes for each list and for each individual candidate in the presence of the individual and list candidates' delegates.
Problems with the Amendments to the Elections Law
The Shoura Council issued the law without referring it again to the Constitutional Court to review the constitutionality of the new amendments. The President received the law and issued Decree No. 134 of 2013[5] inviting registered voters to elect the new parliament in four stages between April 27th and June 27th with the Parliament to hold its first meeting on 6 July 2013. The President rectified this decree with Decree No. 148 of 2013[6] changing the electoral stages’ dates taking into consideration the Coptic Easter holidays. Based on the new decree the elections should commence on April 22ndand end on June 24th, with the Parliament’s first session to be held on July 2nd, 2013. The Supreme Elections Committee then issued Decision No. 15 of 2013 on 24 February 2013 regulating the 2013 parliamentary elections schedule. Many claims have been raised requesting the suspension of the two Presidential Decrees calling for Parliamentary elections, in addition to referring Law No. 2 of 2013 to the Constitutional Court for a review of its constitutionality. In fact, the Administrative Court ruled in case No. 28650 of Judicial Year No. 67, firstly rejecting claims of the court's incompetence, and secondly, suspending the two Presidential Decrees calling for elections, and finally, halting the all consideration of the matter while simultaneously referring the law to the Constitutional Court for constitutional review. Based on the above, the Supreme Elections Committee issued Decision No. 20 of 2013,[7] which suspended its Decision No 15 of 2013 in regards to the parliamentary elections schedule. Therefore, the parliamentary elections are suspended until a ruling into the constitutionality of Law No. 2 of 2013 or the issuance of a new elections law that complies with all constitutional procedures and requirements.
Conclusion
The many obstacles facing the upcoming elections since the passing of the Constitution have resulted in a worsening of the economic situation and on the predictions of investors. The main cause of this is poor legislation and the hurried implementation of law and decrees without properly studying their effects. The result is that the dates of the upcoming elections are once again unclear; it is suggested that they be held not before Ramadan, but rather at the start of September or October.   [1] The Egyptian Constitution, Official Gazette, Issue No. 51 (bis) (b), 25 December 2012. [2] Constitutional Court Ruling No. 1 of 2013 in its hearing held on 17 February 2013, Egyptian Gazette, Issue No. 7 (bis), 18 February 2013. [3] Law No. 2/2013 amending certain provisions of Law No. 38/1972 on the People's Assembly and Law No 73/1956 on the Exercise of Political Rights, Official Gazette, Issue No. 8 (cont.) (a), 21 February 2013. [4] SCAF Decree-Law No 120/2011 amending certain provisions of Law No. 38/1972 on the People's Assembly and Law No 73/1956 on the Exercise of Political Rights, Egyptian Gazette, Issue No. 38 bis (b), 27 September 2011. [5] Presidential Decree No. 134/2013 inviting registered voters to elect the new parliament, Official Gazette, Issue No. 8 (cont.), 21 February 2013. [6] Presidential Decree No. 148/2013 amending certain provisions of Presidential Decree No. 134/2013 inviting registered voters to elect the new parliament, Official Gazette, Issue No. 8 (bis), 23 February 2013. [7] Supreme Elections Committee’s Decision No. 20/2013 suspending its Decision No. 15/2013 in regards to the parliamentary elections schedule, Egyptian Gazette, Issue No. 55 (cont.) (b), 7 March 2013.
Whereas the Egypt Legal Update normally covers only subjects that are of strict relevance to economic activities, it has sometimes during the last two years dealt with some laws and decrees concerning the constitutional and legislative framework in Egypt when they have had a direct impact on the economic outlook and investors’ expectations in Egypt. Accordingly, this edition of Egypt Legal Update will describe the legal position of the forthcoming parliamentary election in light of their importance to the economic outlook in Egypt.
The Overall Framework
After the Constitution's approval with a 64% majority in a public referendum,[1] parliamentary elections must now be carried out within sixty days from the date of the Constitution’s passing, in accordance with Article 229 therein. Based on the transfer of legislative power to the Shoura Council according to Article 230 of the new Constitution, the Shoura Council is responsible for the promulgation of an elections law in order for Article 229 to be complied with. The Shoura Council discussions concerning the elections law have shown a general preference for the amendment of the existing elections law as opposed to the establishment of a completely new one. For that reason, the Shoura Council discussions have been limited to amending Law No. 38 of 1972 on the People's Assembly and Law No. 73 of 1956 on the Exercise of Political Rights. These laws are part of the exceptional laws that are subject to review by the Constitutional Court before they can be enacted. Hence, any amendments regarding these laws shall be referred to the Constitutional Court for previous inspection in order to check that the laws and their amendments conform with the Article 177 of the new Constitution which states the following: "The President or the Parliament shall present the proposed laws regulating the exercise of political rights, the presidential, parliamentary and municipal elections to the Constitutional Court before its issuance to check its conformity to the constitution. Its rulings in this respect shall be issued within forty-five days since the date of presenting the law to it; or else non-issuance of a decree shall be counted as an acceptance for the suggested articles. In the event, the Court rules an article or more does not conform with the constitution's provisions, its ruling has to be realized. The above mentioned laws referred to in the first paragraph shall not be subject to subsequent inspection as stipulated in Article (175) of the constitution".
Amendments to the Elections Law
The Shoura Council’s President indeed referred certain amendments of the Elections law to the Constitutional Court on 19 January 2013, taking into consideration the sixty days’ period since the Constitution's approval in which new elections procedures must begin. Constitutional Court Ruling No. 1 of 2013 in its hearing held on 17 February 2013,[2] held that eleven of the amendments undertaken by the Shoura Council were not in conformity with the new Constitution. Therefore, these amendments are unconstitutional and have to be referred back to the Shoura Council either to be amended in order to conform with the Constitution, or to be cancelled entirely. The unconstitutional articles were returned to the Shoura Council where they were debated and - with the Constitutional Court’s note in mind - a group of changes have been made in order to ensure that the amendments are constitutional. In this process, the Shoura Council issued Law No 2 of 2013 amending some provisions of Law No. 38 of 1972 on the People's Assembly and Law No 73 of 1956 on the Exercise of Political Rights.[3] These laws make it a requirement to refer to the main amendments made to the existing laws. These amendments are as follows:
  1. Widening the definition of a worker while running for parliamentary elections to include any person working for a third party in return for a wage or a salary, and this is consistent with Article 229 of the Constitution. This amendment has applied the first item of Constitutional Court’s ruling.
  1. Rescinding membership to the Parliament in the event a member changes the capacity through which he ran in the elections whether as a farmer or worker or by changing his affiliation from an independent to a party representative and vice versa. This amendment was established in application of the second item in the Constitutional Court’s ruling.
  1. Increasing the number of elected members in Parliament to 564 rather than 498 as was the situation under Law No 120 of 2011.[4] This is consistent with the third item of the Constitutional Court's ruling mentioned above.
  1. The Parliament shall be elected through two electoral systems. Two thirds through a closed list system, while one third through the individual election system. Party members and independents are entitled to run in both systems. This ensures that the new Parliament shall not be dissolved on the same basis as the last Peoples' Assembly in 14 June 2012, which did not allow independents to prepare election lists and simultaneously allow party members to run for the individual seats. This represented a violation to equality and equal opportunity principles.
  1. A minimum threshold for closed lists in each governorate has been introduced, through which a list that receives a total of less than one third of the seat's share of the constituency's valid votes shall not be represented in the Parliament. In the event no list has received more than one third of the seat's share from the constituency's valid votes, the remaining seats shall be distributed upon the remaining lists according to highest remaining votes for each list.
  1. Sequestering National Democratic Party leaders, including members of the General Secretary, the Political Bureau, Policies Committee, or members of the Peoples' Assembly and the Shoura Council in the Parliamentary terms of 2005 and 2010. This amendment executed the seventh item of the Constitutional Court’s ruling.
  1. The electoral sub-committees shall produce a preliminary counting of the number of voters as well as the number of votes for each list and for each individual candidate in the presence of the individual and list candidates' delegates.
Problems with the Amendments to the Elections Law
The Shoura Council issued the law without referring it again to the Constitutional Court to review the constitutionality of the new amendments. The President received the law and issued Decree No. 134 of 2013[5] inviting registered voters to elect the new parliament in four stages between April 27th and June 27th with the Parliament to hold its first meeting on 6 July 2013. The President rectified this decree with Decree No. 148 of 2013[6] changing the electoral stages’ dates taking into consideration the Coptic Easter holidays. Based on the new decree the elections should commence on April 22ndand end on June 24th, with the Parliament’s first session to be held on July 2nd, 2013. The Supreme Elections Committee then issued Decision No. 15 of 2013 on 24 February 2013 regulating the 2013 parliamentary elections schedule. Many claims have been raised requesting the suspension of the two Presidential Decrees calling for Parliamentary elections, in addition to referring Law No. 2 of 2013 to the Constitutional Court for a review of its constitutionality. In fact, the Administrative Court ruled in case No. 28650 of Judicial Year No. 67, firstly rejecting claims of the court's incompetence, and secondly, suspending the two Presidential Decrees calling for elections, and finally, halting the all consideration of the matter while simultaneously referring the law to the Constitutional Court for constitutional review. Based on the above, the Supreme Elections Committee issued Decision No. 20 of 2013,[7] which suspended its Decision No 15 of 2013 in regards to the parliamentary elections schedule. Therefore, the parliamentary elections are suspended until a ruling into the constitutionality of Law No. 2 of 2013 or the issuance of a new elections law that complies with all constitutional procedures and requirements.
Conclusion
The many obstacles facing the upcoming elections since the passing of the Constitution have resulted in a worsening of the economic situation and on the predictions of investors. The main cause of this is poor legislation and the hurried implementation of law and decrees without properly studying their effects. The result is that the dates of the upcoming elections are once again unclear; it is suggested that they be held not before Ramadan, but rather at the start of September or October.   [1] The Egyptian Constitution, Official Gazette, Issue No. 51 (bis) (b), 25 December 2012. [2] Constitutional Court Ruling No. 1 of 2013 in its hearing held on 17 February 2013, Egyptian Gazette, Issue No. 7 (bis), 18 February 2013. [3] Law No. 2/2013 amending certain provisions of Law No. 38/1972 on the People's Assembly and Law No 73/1956 on the Exercise of Political Rights, Official Gazette, Issue No. 8 (cont.) (a), 21 February 2013. [4] SCAF Decree-Law No 120/2011 amending certain provisions of Law No. 38/1972 on the People's Assembly and Law No 73/1956 on the Exercise of Political Rights, Egyptian Gazette, Issue No. 38 bis (b), 27 September 2011. [5] Presidential Decree No. 134/2013 inviting registered voters to elect the new parliament, Official Gazette, Issue No. 8 (cont.), 21 February 2013. [6] Presidential Decree No. 148/2013 amending certain provisions of Presidential Decree No. 134/2013 inviting registered voters to elect the new parliament, Official Gazette, Issue No. 8 (bis), 23 February 2013. [7] Supreme Elections Committee’s Decision No. 20/2013 suspending its Decision No. 15/2013 in regards to the parliamentary elections schedule, Egyptian Gazette, Issue No. 55 (cont.) (b), 7 March 2013.