JURIST Guest Columnist Kristen Stilt of the University of Washington School of Law says that the victory of President Hosni Mubarak in the recent Egyptian multi-candidate presidential election was no triumph of democracy, but rather the product of constitutional sleight of hand that has only further entrenched an authoritarian regime…

It is no surprise that Egyptian President Mubarak won last week in the new presidential election system he created. Commentators in the U.S. noted in the run-up to the vote that even though Mubarak’s victory was a sure bet, at least the new system opened the political arena to multi-candidate elections and exposed Egyptians to election campaigning with its speeches, advertisements, and, most novel, criticisms of the incumbent candidate.

This political opening may seem to follow directly from Bush’s call in his 2005 State of the Union address for Mubarak to lead the Middle East to democracy, and Mubarak has been praised by the U.S. administration for holding these multi-candidate elections. Criticisms of the election, whether by the U.S. media or the White House, have tended to focus on Mubarak’s refusal to allow international election monitors. But this is a small deficiency in the larger context of the overall presidential election system, which is in fact a democratic charade.

Soon after Bush’s address, Mubarak proposed a constitutional amendment to change the presidential selection process from a single-candidate referendum to a multi-candidate election. This promised to be the most dramatic development in the Egyptian political process since a coup brought the military to power in 1952. Under the old system, the lower legislative house nominated a single candidate for president and submitted the name to the voters in a referendum. Since Mubarak assumed office after the assassination of Anwar Sadat in 1981, the lower house — which like the upper house is dominated by Mubarak’s National Democratic Party (NDP) — has nominated Mubarak four times, and he has won with “yes” votes in the mid to high 90 percent range each time. The regime did not permit any independent monitoring of these referenda, and the accuracy of the official results is highly suspect.

The new system enables voters to select their president in direct elections from a list of individuals who meet the criteria and are certified by the newly-created Presidential Election Commission. The ten candidates on the ballot this time gave the illusion that the winds of democratic change are kicking up in the region, but the details of the new election system reveal a very different story.

There are two ways to achieve certification as a candidate: one for leaders of registered political parties and one for independent candidates. First, political parties that have been in existence for the previous five consecutive years and in the last legislative election received at least 5% of the seats in both legislative houses may nominate a presidential candidate. The formation of a political party is not an easy matter. The registration and activities of political parties are regulated by the Law on Political Parties, which was amended by Law 177 of 2005 as part of a package of new laws relating to the presidential elections. The regulations for forming a political party are strict and include, for example, the requirement that the program of the party must add to the political life of the country according to the party’s specified goals and methods. Party registration requests have been denied on the grounds that a party was not sufficiently unique as to add a different perspective to political spectrum. There are clear parameters in the law for the perspectives that a party might represent, however. A party may not be formed on the basis of religion, whether in its fundamental principles, program, activities, or choice of leaders or members. The Muslim Brotherhood, for example, would not be permitted to register as a political party under these rules, even if it were not otherwise considered an illegal organization by the administration.

Second, would-be candidates without a party affiliation, or whose party does not have the required number of seats, must obtain support from legislators to be on the ballot. Specifically, the aspiring independent candidate must obtain signatures of support from at least 250 members of the two national and the many regional legislative houses combined, provided that at least 65 are from the lower house, at least 25 are from the upper house, and at least 10 members from at least 14 of the 26 regional legislatures support the individual.

These requirements make it almost impossible for any party other than the NDP to achieve certification for its candidate. Independents have an equally difficult task. Let’s do the math. There are 454 seats in the national lower house. In the 2000 legislative elections, the NDP won 402 seats in the lower house, four opposition parties won a total of 17 seats, and 25 independent candidates won seats. Ten seats are filled by presidential appointment. None of the opposition parties came close to the 5% threshold of 23 seats. Furthermore, with 402 NDP members and ten more presidential appointees, the remaining 42 legislators are not enough to support an independent candidate, even if they would all agree upon one.

But it would have reflected very poorly on Mubarak if he were the only candidate in the first election under the new system, which has been touted by the Egyptian and American administrations as democratic progress, so Mubarak included in the constitutional amendment a waiver of the minimum seat requirement for party-sponsored candidates for first election only. But in subsequent presidential elections, the number of candidates will be much smaller, perhaps even just one NDP candidate whose last name might also be Mubarak, unless the election process for the legislatures is completely reformed and the NDP’s tight grip on politics is broken. This type of true reform is, however, only a distant dream.

The substance of the new presidential election system is troubling, but even more problematic from a legal perspective is the means by which Mubarak implemented this system. Article 76 of the constitution provided for the presidential referendum system, and so a constitutional amendment was needed to modify this provision. The amendment, however, contains a level of detail far beyond the original Article 76, and enshrines in the constitution the numerical requirements discussed above that will have the effect of keeping independents and opposition party candidates out of the presidential elections in the future. The administration’s motives are clear: in defense of the constitutional amendment, Fathi Sorour, Speaker of the lower legislative house, adeptly commented that part of the constitution cannot be declared unconstitutional.

The regime obviously feared that if the constitutional amendment provided only the broad outlines of the new election system, leaving the details for implementing legislation, then it would run the risk that the fairly strong and independent Egyptian Supreme Constitutional Court (SCC) might later review a constitutional claim and find part of the implementing legislation unconstitutional. This is no idle fear: the SCC has invalidated on constitutional grounds the results of more than one legislative election, and Mubarak would not subject his own “re-election” to the same possibility. By legislating in the constitution, the regime circumvented the power of the SCC to review the presidential election system without
delving into the much more complex terrain of potentially conflicting constitutional provisions.

Egypt’s new presidential election system is not progress. It is not even as benign as the failure of progress. It is authoritarian entrenchment. By pointing to Mubarak’s new election system as a sign of the winds of democracy blowing across the Middle East, the U.S. has lost even more credibility in the hearts and minds of the Egyptian people. Egyptian voters have seen through Mubarak’s democratic charade and find it as tiresome and uninspiring as the blazing heat of Cairo during last week’s election.

Kristen Stilt is a law professor at the University of Washington School of Law, where her speciality is Islamic law.
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