The fates of the presidential elections and parliament hang in the balance, writes Khaled Dawoud
The neo-Pharaonic headquarters of the Supreme Constitutional Court (SCC) overlooking the River Nile in Maadi has been surrounded since late Tuesday by hundreds of heavily armed soldiers and police, alongside dozens of armoured vehicles and tanks, all waiting for today's judgement.
Will the Supreme Constitutional Court negate the entire political process since the removal of former president Hosni Mubarak on 11 February 2011 and provide the generals with an extension to their rule, or will it allow the run-off presidential election, due to start on Saturday, to go ahead as planned?
After three weeks of heated protests, endless legal debates, and wishful thinking from all concerned parties, the stakes could not be higher as the SCC meets to decide whether Ahmed Shafik, Mubarak's last prime minister, is eligible to compete against Muslim Brotherhood candidate Mohamed Mursi in the first openly contested presidential election in Egypt's history.
Mursi headed the pack of presidential contenders after the first round with 5.7 million votes, closely followed by Shafik with 5.5 million.
The SCC is also examining a petition questioning the constitutionality of the regulations governing last year's parliamentary elections. While in theory political parties were allowed to contest two thirds of seats, independents the remaining third, party affiliated candidates stood in many seats reserved for individuals. Should the SCC decide that this infringed on the exercise of the political rights of independent candidates, legal experts are divided over whether new elections will be called in all seats, or in the third reserved for independents.
Leaders from the Muslim Brotherhood, currently the largest parliamentary bloc, seemed less concerned about the future of parliament than they might, a reflection, perhaps, of their satisfaction at engineering an Islamist majority on the 100-seat constituent assembly that will draft Egypt's new constitution.
Liberal and leftist political parties, the Wafd excepted, were outraged by Brotherhood tactics over the constituent assembly. Ninety-two MPs boycotted the joint session of parliament convened to elect its 100 members on Tuesday, claiming they had been deceived by the Brotherhood and Nour Party, both of which had earlier promised not to press for more than 50 seats for supporters of political Islam.
"The MPs who boycotted the joint session did not want to take part in a crime," said Mahmoud Salem, a leading member of the liberal Free Egyptians Party. "The Brotherhood and Nour refused to select some of the best legal experts and most reputable public figures who had been nominated, preferring to select men like Yasser Borhami, who not so long ago proclaimed it was against Islam to shake hands with a Christian."
Though the long-term significance of the debate over the constitution will be enormous, the public is currently more concerned with the court's decision on Shafik's candidacy.
Shafik's insistence on standing upset many who battled to rid Egypt of Mubarak and his regime just 16 months ago. That his nomination was allowed confirms the belief of activists who took part in the protests that the Supreme Council of the Armed Forces (SCAF) had worked alongside remnants from the regime to limit the gains of the revolution to the removal of Mubarak and an end to the presidential ambitions of his non-military son, Gamal.
In mid-April parliament approved the so-called "disenfranchisement law" which, in banning senior officials from Mubarak's last 10 years in power from running for public posts, had former General Intelligence chief Omar Suleiman, rather than Shafik -- whom Brotherhood and Salafi deputies did not take seriously as a candidate -- in its sights. But when Suleiman was excluded from the race by the Presidential Elections Commission (PEC) on procedural grounds, Shafik became the sole representative of the former regime. PEC decided to allow Shafik to run, and in the meantime referred the "disenfranchisement law" to the SCC.
Gaber Nassar, Cairo University professor of constitutional law, expects the court to rule that PEC had no right to refer the case in the first place, even if, as most legal experts agree, the law is unconstitutional. PEC's remit, says Nasser, is purely administrative. Its members may all be members of the judiciary, but it has no judicial capacities. If Nasser is right, then Shafik would be barred from running since the disenfranchisement law, passed by parliament and approved by SCAF, would be enforced until a more appropriate challenge.
Nasser would prefer the entire electoral process to be postponed until a new constitution is drafted. "That's what a lot of people said from day one. We need a constitution first, and then we hold parliament and presidential elections."
Excluding Shafik, argues Nasser, would help calm the country. He points out that Shafik won just 23 per cent of votes cast in the first round "while nearly 75 per cent wanted a fresh face with no links to the former regime".
Hamdeen Sabahi, a Nasserist who ran as an independent candidate, came third after Shafik with nearly five million votes, followed by Abdel-Moneim Abul-Fotouh on four million votes, and former Arab League chief Amr Moussa with 2.5 million.
PEC Secretary-General Ahmed Bagato said SCC could either decide the fate of the presidential elections itself or refer the case back to PEC. He noted that if SCC decided to rule on the constitutionality of the law, and decided against, elections would go ahead as planned on Saturday and Sunday.
That would be good news for Shafik, whom Brotherhood candidate Mursi says may benefit from vote rigging and who is reported to enjoy the support of powerful members of the now disbanded National Democratic Party as well as some members of SCAF. Mursi cited Prime Minister Kamal El-Ganzouri's decision to grant civil servants two days off during the voting, and to offer free transport in buses and trains to polling stations, as evidence that state institutions were working for a Shafik victory.
The state-owned media has repeatedly warned that a religious state would emerge in the wake of a Mursi victory, and that the real president would be the Brotherhood's Supreme Guide Mohamed Badie. And Shafik's own campaign team, in a remarkable juggling of facts, claimed that Brotherhood members were behind the murderous attacks on protesters in Tahrir during the revolt against Mubarak as they attempted to turn the public more against the regime. The claims were ridiculed by even the staunchest Brotherhood opponents.
Should SCC reject the case on procedural grounds, ie the manner of its referral, Shafik will be excluded and, according to Bagato, four options will remain: elections could take place among the 12 candidates who competed in the first round; the door could be open for new presidential nominees; the entire presidential election process could be postponed until SCC decides on the legality of the "disenfranchisement law" itself; or a referendum could be held with Mursi the only name on the ballot paper. In order to secure the presidency Mursi would then have to win 50 per cent of the votes cast plus one. It will, says Bagato, "be up to PEC to decide should the SCC refer the case back to us".
Former presidential candidate Mohamed El-Baradei has said he would prefer the second round of elections to go ahead as planned since 23 million Egyptians had already voted in the first round, with the proviso that the newly elected president's term be restricted to one year, by which time the new constitution will have been drafted. After that, new parliamentary and presidential elections could be held.