Two legal cases to be heard on Thursday before Egypt’s Supreme Constitutional Court are threatening to turn the country’s entire post-revolution political process on its head just two days before the election of a new president.
Both trace back to a fundamental debate, one that began when the first licks of flame began to devour the headquarters of Hosni Mubarak’s National Democratic Party on January 28: should the former regime ever again be allowed to participate in politics?
On one hand, there is the candidacy of Ahmed Shafiq, Mubarak’s last prime minister, who was voted into the June 16-17 runoff as the second-place finisher, much to the dismay of the revolutionaries who thought their 18-day revolt had ushered his ilk into the history books.
Egypt’s Islamist-dominated parliament, alarmed at Shafiq and others’ candidacies, passed a law specifically aimed at banning men with his controversial resume from politics, and that law is now under review.
And then there is parliament itself, and the confusing system that governed its election. Egypt’s military rulers, under pressure from those who feared a return of wealthy ex-regime power brokers, hastily changed the election law to let parties compete for the independent seats the old guard were thought to be targeting. The court will now have to decide whether that decision unfairly discriminated against political independents.
Theoretically, the court could force Egypt to rerun both its parliamentary and presidential elections, raising the spectre of a return to the past 16 months of violent protest and disorder. No matter which route the court takes, many will be angry.
Perhaps the biggest hope for Egypt’s revolutionaries, leftists and progressives - not to mention supporters of Muslim Brotherhood runoff candidate Mohammed Morsi - is that Shafiq will be disqualified.
Their hope rests upon the Political Isolation Law, passed by parliament and enacted by the country’s ruling military council in April just one month before the presidential election. The law bars anyone who served in a top position during the last 10 years of the Mubarak administration from holding public office for the next decade.
The law banned Shafiq from the race, but the day after it was passed, Shafiq appealed to the presidential election commission and was immediately reinstated. The commission then referred the law to the Supreme Constitutional Court for review.
The court could rule on procedural grounds and decide the commission did not have the power to send the law for review, in which case the law stands and Shafiq is disqualified. Or it could rule on the merits of the law.
If the court wants to rule on the merits of political isolation, analysts believe it is likely to strike it down, as it unfairly targets certain individuals - high-ranking former regime members. Additionally, three members of the presidential election commission that allowed Shafiq back into the race also hold seats on the court, including the court’s current and incoming presidents, making many see a reversal as unlikely.
If the court rejects the commission’s referral or decides political isolation is constitutional and Shafiq is disqualified, the consequences for the presidential race are unknown. One member of the commission has said that the race would become a simple yes or no vote on Morsi, the Brotherhood’s candidate, but the law is unclear, and Shafiq’s disqualification could require an entirely new election.
Re-running parliamentary elections?
When Egypt’s parliamentary elections ended in January, the results signaled the ascent of the country’s long oppressed and underground Islamist movements - the Salafis and the Muslim Brotherhood. Now, the Supreme Constitutional Court could dissolve parliament itself, likely undoing their powerful two-thirds majority.
In February, Egypt’s State Council, a judicial body tasked with overseeing disputes when the government is a party, referred the law that governed the parliamentary election to the Supreme Constitutional Court. Since two-thirds of the seats were meant to be filled by candidates running on political party lists and the other third by independent individuals, the argument went that the election’s split system unfairly discriminated against independents.
This point of view was actually upheld by the court twice under the Mubarak regime, in 1987 and 1990. Both times, the court dissolved parliament. But the principle of equality between independents and political parties is still hazy and not defined in the existing post-revolution constitution, leaving room for maneuver.
If the court rules that the system was unconstitutional, it could require a rerun of only the one-third of seats that were meant for independents, or it could require the whole election to be held again. Either way, the more important question is whether the parliament’s single most important task, choosing the body that will write the constitution, will remain.
Parliament chose that body at the last second, on Wednesday, and court precedent has held that decisions by dissolved parliaments still stand. But since Egypt’s post-revolution constitution is at stake, there will likely be strong opposition to the constitutional assembly, especially from liberals and secularists who already say the body is stacked with Islamists and their sympathisers.
If nothing changes - Shafiq remains in the race and parliament continues with its work - Egypt’s transition may remain steady, but revolutionaries and the Brotherhood will be deeply displeased that a member of Mubarak’s regime was allowed to compete for the presidency. If everything changes - Shafiq is disqualified and parliament dissolved - the revolutionaries will say a victory was scored, but Egypt’s future remains in its cloud of confusion.