Saturday, January 29, 2011
Several provisions of the Constitution of the Arab Republic of Egypt address the election of President. The ongoing events in Egypt raise the possibility that the three decade Presidency of Hosni Mubarak (pictured right) is coming to an end.
Article 75 provides that the President must be "must be an Egyptian born to Egyptian parents and enjoy civil and political rights. His age must not be less than 40 Gregorian years." However, it is the next section that governs the process:
The President shall be elected by direct, public, secret ballot. For an applicant to be accepted as a candidate to presidency, he shall be supported by at least 250 elected members of the People's Assembly, the Shura Council and local popular councils on governorate level, provided that those shall include at least 65 members of the People's Assembly, 25 of the Shura Council and ten of every local council in at least 14 governorates.
The number of members of the People's Assembly, the Shura Council and local popular councils on governorate level supporting candidature shall be raised in pro-rata to any increase in the number of any of these councils. In all cases, support may not be given to more than one candidate.
Procedures related to this process shall be regulated by the law. Political parties, which have been founded at least five years before the starting date of candidature and have been operating uninterruptedly for this period, and whose members have obtained at least 5% of the elected members of both the People's Assembly and the Shura Council, may nominate for presidency a member of their respective upper board, according to their own by-laws, provided he has been a member of such board for at least one consecutive year.
As an exception to the provisions of the fore-mentioned paragraph, any political party may nominate for the first presidential elections, to be conducted following the enactment of this Article, a member of its higher board, established before May 10, 2005 according to its by- law. Candidature applications shall be submitted to an independent committee, named the Presidential Elections Committee. The committee shall be composed of the head of the Supreme Constitutional Court as a chairman and the head of the Cairo Court of Appeal, the most senior deputy of the head of the Supreme Constitutional Court, the most senior deputy of the head of the Court of Cassation, the most senior deputy of the State Council and five public figures, recognized for impartiality.
Three of the fore-mentioned public figures shall be selected by the People's Assembly and the other two by the Shura Council upon a recommendation of the bureaus of both houses for a period of five years. The law shall determine who will act on behalf of the chairman or any member of the committee, should there be some reason for their absence.
This committee shall exclusively have the following competences:
- To declare the initiation of candidature and supervise procedures for declaring the final list of candidates;
- To generally supervise balloting and vote-counting procedures;
- To announce elections results;
- To decide on all appeals, challenges and all matters related to its competences, including conflict of jurisdiction;
- To draw up by-laws regulating its modus operandi and method of practicing its competences.
The committee's resolutions shall be passed with a majority of at least seven members. Its resolutions shall be final, self-enforcing and incontestable by any means or before any authority whatsoever. Its resolutions may not be challenged through construing or stay of execution. The law regulating presidential elections shall determine other competences for the committee. The law shall also determine regulating rules governing the nomination of a candidate to replace another one who has vacated his seat for some reasons other than assignment within the period between the starting date of candidature and before the termination of voting. Voting shall be conducted in one single day. The presidential elections committee shall establish committees to administer stages of the voting and ballot-counting process. The committee shall establish main committees to be composed of members of the judiciary to supervise the process in accordance with such rules and regulations as may be decided by the committee.
Election of the president shall be declared when candidates have obtained an absolute majority of the number of valid votes. In the event that none of the candidates has obtained such majority, election shall be repeated, at least after seven days, between the two candidates who have obtained the largest number of votes. Should another candidate obtain a number of valid votes equal to those of the second, he shall take part in the re-election. In this case, the candidate who has obtained the largest number of votes will be declared winner. Voting for electing the president shall be effected, even though one single candidate has applied or even if he was the only candidate remaining due to assignment of the rest of candidates or due to failure to field another candidate in lieu of the one vacating his seat. In this case, the candidate who has obtained the absolute majority of the number of valid votes shall be declared winner.
The law shall regulate procedures to be followed in the event the candidate has failed to obtain this majority. The President shall submit the draft law regulating the presidential elections to the Supreme Constitutional Court following endorsement by the People's Assembly and before promulgation, to determine compliance with the Constitution. The Court shall return its ruling in this connection within fifteen days from date of submission thereto. Should the court decide that one or more provisions of the draft law are unconstitutional; the President shall return it to the People's Assembly to put this ruling into effect. In all cases, the court's ruling shall be binding to all parties and all state authorities. The law shall be published in the official gazette within three days from date of issuance.
An excellent primer on Article 76 is Professor Kristen Stilt's Constitutional Authority and Subversion: Egypt's New Presidential Election System, 16 Indiana International & Comparative Law Review 335 (2006), available on ssrn.
[image: Hosni Mubarak via]