Al-Ahram Weekly   Al-Ahram Weekly
13 - 19 July 2000
Issue No. 490
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Making history at the Supreme Court

By Gamal Essam El-Din

President Hosni Mubarak decided yesterday to issue three draft presidential decrees aimed to revamp three laws, including 1956's Law 73 on the exercise of political rights, 1972's Law 38 regulating the performance of the People's Assembly and 1980's Law 120 regulating the performance of the Shura Council.

Besides, President Mubarak also decided to issue three presidential decrees aimed to summon the Shura Council and the People's Assembly to hold two extraordinary meetings on next Saturday and Sunday respectively. Both the Shura Council and the People's Assembly will discuss the three presidential decrees. Informed sources told Al-Ahram Weekly that two amendments (in article 31 and 24) will be introduced to 1956's law on the exercise of political rights. The first will comply with last Saturday's ruling of the Supreme Constitutional Court. It will state that auxiliary polling stations in parliamentary elections be placed and monitored completely under the supervision of members of the judiciary. This will entail that next parliamentary elections be spread over three days for the first time in Egypt's modern history: one day for Greater Cairo (Cairo, Giza and Qalyubiya), the second day for Wagh Bahari (the Delta, Alexandria, Marsa Matruh, the Suez Canal area and Sinai), while the third for all the governorates of Upper Egypt.

The second amendment to the political rights law, informed sources said, will be concerned with regulating the presence of the representatives of candidates in polling stations.

The two legislative and constitutional committees of the Shura Council and the People's Assembly are expected to hold two meetings on Thursday and Saturday to discuss the three draft presidential decrees.

Following an expanded meeting with President Mubarak yesterday, Information Minister Safwat El-Sherif indicated that President Mubarak embarked upon the above decisions after listening to the viewpoints of the working groups which were formed three days ago to review the Supreme Constitutional Court's ruling. El-Sherif indicated that Mubarak was very keen that the court's ruling and the Constitution's Article 88 (on the measures regulating the conducting of elections) be respected.

The meeting with President Mubarak yesterday was the last of four meetings that were held this week to debate the ramifications of the Supreme Constitutional Court's ruling on Saturday.

The court ruled that placing auxiliary polling stations in parliamentary elections under the supervision of civil servants is unconstitutional and ordered that only judges oversee such venues as well as major stations.

The court based its decision on Article 88 of the Constitution which states that voting in parliamentary elections should be monitored completely by members of the judiciary. "They are best able to carry out this supervision because of their impartiality and clear conscience," the court said. "In order for voters to select their representatives in a safe climate, judicial supervision should be veritable rather than formal."

The ruling, which is final, quashed a 1956 law that allowed civil servants to oversee auxiliary polling stations. It came in response to a lawsuit filed by Gamal El-Nasharti, a lawyer who ran in the parliamentary elections of 1990. Justice Walieddin Galal, chairman of the Supreme Constitutional Court, handed down the ruling one day before he was due to reach the age of retirement.

President Mubarak chaired an urgent meeting on Monday to review the consequences of the court's ruling and how it would affect upcoming People's Assembly elections. The meeting brought together Prime Minister Atef Ebeid, Deputy Prime Minister Youssef Wali, speakers of the People's Assembly and Shura Council, ministers of the interior, information, justice, parliamentary affairs, administrative development and chief of the presidential staff. Information Minister Safwat El-Sherif announced later that although no final decision had been taken, President Mubarak was keen to see the court's ruling respected.

The meeting was preceded by a session that grouped Ebeid, speakers of the People's Assembly and the Shura Council and six cabinet ministers. Ebeid said the court's ruling supported democracy and was indicative of the supremacy of law in Mubarak's era. Ebeid held another meeting on Tuesday to debate the same issue.

The decisions taken by President Mubarak yesterday were surprising to many political observers. Most of them were expecting that two courses of action are only available to the government in dealing with the ruling's consequences. A presidential decree could be issued to invite citizens to vote in a nationwide referendum on the dissolution of the People's Assembly and call for new parliamentary elections within 60 days. Some observers, however, contend that although in purely legal terms this is the right and necessary course of action, it is irrational from a practical perspective.

"The five-year term of the People's Assembly, which will be the subject of the referendum on its dissolution, expired in June and, consequently, it will no longer undertake any legislative or supervisory duties," said Ibrahim El-Nimiki, deputy chairman of the People's Assembly's Constitutional and Legislative Committee. "It is by no means logical to call for a referendum on the dissolution of an assembly whose term expired one month ago. Why, then, should the nation bear such huge financial costs and adopt tight security measures for such a meaningless action?" It is clear now that President Mubarak did not resort to this option. He, instead, opted to summon the People's Assembly and Shura Council to hold extraordinary meetings to discuss his three presidential decrees.

President MubarakThe second option which was expected by political observers was that for the president to issue a decree, that has the force of law, amending the second paragraph of Article 24 of the 1956 law on the exercise of political rights. The paragraph was declared unconstitutional by the court, and analysts say it must be amended to clearly state that only judges can oversee polling stations, both principal and auxiliary. In its current form, the paragraph in question states that principal polling stations should come under the supervision of members of the judiciary while auxiliary stations are to be overseen by civil servants.

The president is empowered by the constitution to issue decrees that have the force of law on urgent matters if parliament is in recess. The decrees, however, must be debated and approved by parliament once it convenes.

Political observers agree that the second option, amending Article 24, will necessarily entail that the parliamentary elections, scheduled for November, be staged over several days. In its ruling, the court said that "it is absolutely necessary that the voting process be provided with all guarantees necessary for ensuring its integrity, preventing any tampering with the results and strengthening democracy. Therefore, it is unjustified to say that the number of judicial authority members is not enough to place auxiliary polling stations under their direct and full supervision, especially since the constitution does not stipulate that elections be staged on the same day.

"Any argument that practical considerations stand against the application of the constitution's provisions is not an [acceptable] excuse because what is required by the constitution should not be a subject of excuse," the court added. On that note, the court concluded that the second paragraph of Article 24 of the 1956 law on the exercise of political rights violated Articles 3, 62, 64 and 88 of the Constitution.

El-Nimiki told the Weekly that it is now clear that President Mubarak has also refrained from adopting this second option. He decided instead to summon the Assembly and Shura Council to hold two extraordinary meetings. "It is probable that he opted not to bear the sole responsibility of complying with the court's ruling and decided instead to engage the Assembly and Shura Council in discussing them," El-Nimiki said.

Although the ruling made the 1990-1995 and 1995-2000 parliaments null and void, the court said this does not mean that the laws enacted by them suffered the same fate. El-Nimiki explained to Al-Ahram Weekly that if the Supreme Constitutional Court declares a parliament to be unconstitutional, the consequences of this ruling will be immediate and not retroactive.

"This is necessary in order not to cause an overall constitutional and legal collapse and a wide-scale legislative vacuum," El-Nimiki said. "The laws passed by these parliaments will remain applicable unless, and until, their constitutionality is contested."

El-Nimiki said this was the third time in 16 years that a parliament was declared unconstitutional. The court had ruled that two parliaments elected in 1984 and 1987 were unconstitutional. The 1984 parliament was branded unconstitutional because the party slate system used in elections at the time was considered by the court as being discriminatory against independents. The system allowed only candidates of political parties, not independents, to run for elections. As a result, the slate system was modified to allow independents to take part, but in 1987 this, too, was found to be discriminatory and unconstitutional. "The historic ruling of the Supreme Constitutional Court on Saturday makes all the parliaments in Egypt over the past 16 years null and void," El-Nimiki claimed.

Some observers, however, asked how can the Assembly and Shura Council be summoned by the president to hold two emergent meetings on Saturday and Sunday while the court's ruling last Saturday made the present (1995-2000) parliament unconstitutional. The Weekly's informed sources retorted that it might have been argued that the contest upon which the court issued its ruling of unconstitutionality was directed at the elections of 1990-1995's parliament only.

El-Nimiki explained that some people, in their initial reaction to the ruling, believed that the court's decision will have no impact on the upcoming elections because the Assembly had amended the 1956 law in April. This has been proven wrong, El-Nimiki said, because the amendment established so-called special judicial committees to supervise between six to eight auxiliary polling stations each. "The amendment is not enough because the court's ruling states that all auxiliary polling stations should be headed by members of the judiciary," said El-Nimiki.

The court's ruling dealt a serious blow to several government officials who had stood behind the April amendment. Topping the list is Justice Minister Farouk Seif El-Nasr and Minister of State for Parliamentary Affairs Kamal El-Shazli. Both strongly opposed calls by the opposition to spread elections over several days.

El-Nasr said in April that organising elections over several days is impossible. El-Shazli argued that the number of members in the judicial authority stands at 9,949. Of these, he added, 5,661 will be available to supervise 42,000 auxiliary polling stations.

Several parliamentarians and constitutional experts agree that spreading elections over several days will be a progressive step towards political activity in the country. They, however, argue that this will require that elections be organised earlier than originally planned. Mohamed Moussa, chairman of the People's Assembly's Legislative and Constitutional Committee, said organising elections at an earlier date would mean that candidates will have to bear higher campaign costs while the nation would come under tight security for quite some time.

Opinions are also divided on whether the court's decision makes the Shura Council and municipal councils null and void as well. Shawqi El-Sayed, an appointed Shura Council member, says the Shura and municipal councils should be dissolved because the court's ruling also applies to the manner in which their elections were conducted. By contrast, Mohsen Farag, chairman of the Shura Council's Legislative Committee, argued that the court's ruling does not apply to the Shura or municipal councils because the lawsuit filed with the Constitutional Court was concerned solely with People's Assembly elections.

"In the future, however, all such councils should come under complete judicial supervision in auxiliary polling stations during elections," Farag added.


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