Two days before the run-off presidential poll opens and the fates of presidential contender Ahmed Shafik, Mubarak's last prime minister, and the Muslim Brotherhood-dominated parliament, are in the hands of the Supreme Constitutional Court The future of the current People's Assembly and Shura Council is hanging by a thread, reports Gamal Essam El-Din The Supreme Constitutional Court (SCC) announced on 6 May that it would suspend any judgement on petitions contesting the constitutionality of the law regulating elections to the People's Assembly and Shura Council until advisory consultants had reviewed the case. Last week SCC received the non-binding report by its consultants. It recommended the law which regulated parliamentary elections from November 2011 to February 2012 be ruled unconstitutional. The report was prepared after lawyers and activists filed a case against the election laws with the Supreme Administrative Court (SAC). They argued that the regulations discriminated against independent candidates. "Candidates running on party lists had an unfair advantage over their independent counterparts," says independent MP Hamdi El-Fakharani. "The law not only allocated two-thirds of seats to party-based candidates and one-third to independents." "Political parties, especially Muslim Brotherhood's Freedom and Justice Party [FJP], exerted pressure on the ruling Supreme Council of the Armed Forces [SCAF] not only to devote two-thirds of seats to party-based candidates, but also to allow them to field candidates in independent seats. Candidates that stood as independents immediately rejoined the political parties that had fielded them after the elections. The result is that there are only 31 independent MPs in parliament." El-Fakharani points out that in 1987 and 1990 SCC rulings that election laws discriminated against independents resulted in the 1984 and 1987 parliaments being dissolved. On 22 February the SAC found in favour of the plaintiffs, ruling that the parliamentary election law, which was approved by SCAF, allowed members of political parties to compete in parliamentary seats reserved for independents. "The practice violated the rights of independent contenders who were barred from vying for seats set aside for party-list candidates," said SAC. It is unclear if, in the event of the law being judged unconstitutional by the SCC, fresh elections will then be held in the third of seats reserved for independents or whether both houses of parliament will be dissolved. "The SCC could rule that elections to the one-third of seats reserved for independents were unconstitutional in which case new elections could be restricted to these seats," says professor of constitutional law Fawzia Abdel-Sattar. It could also rule the electoral law unconstitutional in its entirety, "in which case SCAF's chairman or the newly elected president will be required to issue an order for the dissolution of the two houses of parliament and a new law issued to elect a new parliament". The case, says constitutional expert Ahmed Kamal Abul-Magd, resembles those of 1984 and 1987. "In 1987 and 1990 parliaments elected in 1984 and 1987 were dissolved because the laws under which they were elected were judged to have discriminated against independents." On 9 June the Brotherhood's People's Assembly Speaker Saad El-Katatni was left arguing that since last year's Constitutional Declaration said nothing about what would happen if the SCC ruled the election law unconstitutional, then it would be up to the unconstitutionally elected People's Assembly, in which the Brotherhood's Freedom and Justice Party is the majority, "to see what measures should be taken". "I am optimistic that the People's Assembly will be dissolved," says leftist leaning MP and failed presidential candidate Abul-Ezz El-Hariri. "This will not mean that laws issued by the current parliament will be automatically ruled unconstitutional," he argued. "It does, however, mean that presidential elections must be postponed because the recommendations the Muslim Brotherhood's candidate Mohamed Mursi received from MPs will be nullified. The most logical course then will be for presidential elections to be postponed until a new constitution is drafted." Egypt's political future is increasingly tangled in a web of court cases and bitter public disputes. If the knots can be untied then military rule may end on schedule. If they cannot, then Egypt faces a new, and possibly more turbulent, period of transition. A majority of pundits expect that both the law regulating parliamentary elections and amendments to the law on the exercise of political rights will be ruled unconstitutional. If they are right the Muslim Brotherhood will emerge as the loser, and presidential candidate Ahmed Shafik the winner. Today's Supreme Constitutional Court ruling is expected to determine the fate of presidential candidate Ahmed Shafik. Mona El-Nahhas reviews the possible scenarios Will presidential candidate Ahmed Shafik be excluded from run-off presidential elections? The answer may be available today, when the Supreme Constitutional Court (SCC) rules on the constitutionality of amendments to the 1956 law regulating the practice of political rights that were approved by the People's Assembly and endorsed by the Supreme Council of the Armed Forces (SCAF) in April. If the court rules the changes unconstitutional -- which most commentators expect -- then Shafik, who placed second in the first round of presidential polls, can continue. Should the SCC judge them constitutional, Mubarak's last prime minister and longtime minister of aviation, will be out. Calls for implementing the amended law, which bans remnants of the former regime from seeking any top state post, were a central demand of last week's demonstrations. Had the Presidential Elections Commission (PEC) not referred the changes to the SCC, then Shafik's name could not have appeared on the first round ballot. Instead Shafik was excluded from the race for just 24 hours, the time that lapsed between the law being approved and PEC's referral of it to the SCC. Whether PEC overstepped its authority in making the referral that allowed Shafik to continue in the race is something over which legal experts continue to argue. "The membership of PEC might be restricted to judges, but this does not automatically give the commission a judicial capacity," professor of constitutional law Salah Sadeq told Al-Ahram Weekly. He compared PEC's status to that of the Supreme Judicial Council (SJC) which, though all its members are judges, operates as an administrative, not a judicial, body. In referring the amendments to the SCC, says Sadeq, PEC overstepped its administrative mandate and assumed a prerogative of the courts. Other experts argue that PEC enjoys a de facto judicial capacity. The Commissioners' Authority, an advisory body affiliated to the SCC, has already provided the Court with a summary of legal opinions, addressing both PEC's right to make a referral and the constitutionality of the amendments. In its report, the findings of which are not binding on SCC, the Commissioners' Authority notes arguments that PEC is mandated to operate as a judicial commission but concludes the weight of opinion is that the 2011 Constitutional Declaration limits PEC's judicial character to membership, not capacity. In other words, PEC plays an exclusively administrative role and its decrees can only ever be administrative, relating to election procedures. The weight of opinion, concludes the Commissioner's Authority, is that the court should refuse hearing the appeal given the method of its referral. "SCC rejection of the appeal means the political isolation law should be enacted and Shafik excluded," says professor of constitutional law Merghani Khairi. "The results of the first round of the polls would then be considered null and void and new elections take place with the original candidates, excluding Shafik, competing." But what if such a judgement is issued after a Shafik victory? Then, says Khairi, the office of president must be declared vacant and the whole electoral process will be back at square one. After dealing with form the Commissioners' Authority report moved to the content of the appeal, filling 50 pages with legal arguments against the amendment's constitutionality. Sadeq agrees with the thrust of arguments that stress that the amendments violate the right of all citizens, regardless of their political affiliation, to exercise their political rights, including the right of nomination. "It's unconstitutional to deprive citizens of such rights just because they belonged to the former regime. Unless it is proved that they were corrupt, nobody can prevent them from practising their political rights," Sadeq said. Most commentators expect a ruling to be issued today, though a delay is possible. And whatever the legal arguments are about PEC's judicial status, the fact remains that the Supreme Council of the Armed Forces decreed PEC rulings to be beyond appeal. It could, therefore, be left to PEC to decide whether Shafik remains in the race, whatever the SCC rules.
