II. Conquering Democracy: The Challenge of Organizing Free, Fair, and Transparent Elections
“A masquerade in which the results are known in advance”—such was the damning description of the electoral process under Egyptian and Tunisian authoritarianism. The first challenge that these two countries had to face was purging the management of elections of all the slippery arrangements that had served to make election fraud an institutionalized practice, decoupling democracy from its purpose—i.e., the potential for a change of regime—and sapping the elections of their very essence—i.e., a competition that is entered into on the basis of trust that the vote count would be fair. Both countries, and Libya which followed in their footsteps, had to rise to the challenge of ensuring a credible electoral process overseen by an independent electoral authority (Section A) and organizing competitive elections (Section B).
A. A Credible Electoral Process Overseen by an Independent Electoral Authority
In Tunisia, the executive, through the Ministry of the Interior, took sole responsibility for the organization of elections at the central and local level—from voter registration, the counting of votes, the designation of polling stations, to monitoring the election campaign. (p. 428) Every stage of the electoral process was locked under the control of an authority enslaved to the incumbent power:14 the electoral maps, distributed by agents sympathetic to the party in power, who withheld them from the opposition; the polling stations, of which there were a particularly high number, so as to make it difficult for the opposition to monitor the vote; the election campaigns, which were conducted under the control of the government and with the forced complicity of the state-owned mass media, which were monopolized by the candidates of the parties in power with utter disregard for the principle of equality between candidates. On polling day, voting was conducted in public and the counting in secret, under the watchful eye of those who were in charge of the polling stations and had been appointed by the governor, who was fiercely loyal to the regime. The various reforms made to the electoral code in order to improve the transparency of the process were in practice little heeded. Dead people “voting”, spoiled ballots, and stuffed ballot boxes were commonplace. In addition to the polling stations’ lack of neutrality, intended to fix the results, there was a puppet election monitoring arrangement. The creation in 1999 of a national observatory of elections tasked with ensuring proper adherence to election procedure only served to legitimize the fraudulent practices, as in the absence of any legal framework the institution was completely dependent on the President of the Republic. It was impossible to put the brakes on the wheels of manipulation in these elections, which were constructed of bland ritual, provoking in citizens if not disdain then at least disinterest.15
The situation in Egypt was not very different, although the elections there were more disputed, the press considerably freer, and the clientelism more flagrant, the latter further perverting the election process. Moreover, the characteristic trait of the Egyptian elections, far more than the systematic fraud all too familiar under authoritarian regimes, was the violence that punctuated the elections, and of course the monetization of votes. Those responsible were the National Democratic Party (NDP) and the Muslim Brotherhood, as they were the only ones with vast financial resources. “Corrupt, make loyal”—these were “the ‘legitimate’ methods used in the Egyptian electoral competition”.16 But another characteristic peculiar to Egypt is the introduction of judicial oversight over election procedures, which—although it has not completely eradicated fraudulent practices—has substantially reduced them.
Before 2000, supervision of polling stations was the responsibility of the Ministry of the Interior. Judicial oversight of the entire election process was established by a decree of the Egyptian Supreme Constitutional Court (SCC).17 Despite the irregularities observed in the 2000 and 2005 elections, they are nonetheless considered to have been the most transparent ones for decades. However, in 2007 the pre-2000 situation was re-established by an amendment to Art. 88 of the constitution,18 adding grist to the opposition’s mill, (p. 429) already highly critical of the government’s maneuverings. The authorities gave a series of justifications for the amendment19 but could not give the real reason, which was to withdraw oversight of voting procedures from the judiciary following the mobilization of the judges in spring 2005 for the independence of the judiciary and the transparency of elections, dubbed the “Spring of the Judges”.20 Art. 88 did establish an improved Electoral High Commission composed of active or retired members of the judiciary and tasked with overseeing the vote in its entirety. But the institutionalization of judicial oversight, which does allow us to classify the Egyptian system, with some reservations, as a mixed model of election management, was in fact nothing but a step backward. In truth, only the general polling stations, where the count was to take place, were required to be overseen by a member of the judiciary. Auxiliary polling stations, no longer mentioned by the constitution, may be under the supervision of a civil servant—especially as staggering of the vote was prohibited, meaning that the elections must now take place on a single day.
The electoral legislature of the three countries of the Arab Spring attempted to comply with international standards for democratic elections; these require professional and impartial management of the electoral process by an independent election authority, which is considered to be an indispensable requirement for free, multiparty, transparent, and fair elections. In this context, the United Nations’ Committee of Human Rights recommends that “an independent electoral authority should be established to supervise the electoral process and to ensure that it is conducted fairly [and] impartially”.21 Although “independence” remains difficult to define, it seems to be accepted today that the best guarantee of independence is the creation of an independent election management body. This model offers better protection than the two other models, namely, the government model discredited in pre-revolutionary Tunisia and the mixed model that was distorted in Mubārak’s Egypt. Let us consider how effectively the legal frameworks established in the three countries have allowed this requirement of independence to be met.
The three countries took different approaches depending on the nature of the transition process and of the interim authorities. Egypt, which chose the option of legal tinkering throughout the transition process, stuck to the old model of supervision by entrusting responsibility to a judicial body, called the Judicial High Elections Commission, that was granted higher status and stronger powers than its predecessor, being now mandated to oversee the election process in its entirety.22 ISROR, which really wanted to sweep the board clean on election management, established an Independent Higher Election Authority (ISIE).23 This served to set the standard, and the Libyan electoral legislature followed the lead of its Tunisian counterpart in establishing the High Commission of Elections.24 In (p. 430) order to assess the degree of independence that these three bodies enjoy, we will need to analyze the legal framework that regulates them, whilst bearing accepted international standards in mind.
In this regard, the context in which the commissions were established, characterized by the suspension of constitutional texts and the absence of elected authorities, made it impossible to ensure the specific legal arrangements required for an independent body.25 However, the Tunisian and Libyan election bodies in particular did enjoy the reflected legitimacy of the authorities that had established them, afforded by their consensus-based composition, and were generally accepted by the various political actors; this later encouraged acceptance of the results of the vote. ISIE was established by a Decree-Law adopted by ISROR and thus benefited from the consensus that prevailed within that body.26 The Libyan High Commission was established by the Constitutional Declaration of August 3, 2011, and organized by Act No. 4 regulating the elections of the General National Congress. The Egyptian Judicial High Elections Commission was established under the Constitutional Declaration of March 30, 2011, and organized on the basis of an amendment to the Act on the exercise of political rights, overseen by SCAF.27 Despite the shaky framework of transition, the judicial nature of the commission served to confer a measure of impartiality due to the respect enjoyed by the magistrature as a result of having been one of the principle vectors of resistance against the oppression of the Mubārak era.
Another factor in an authority’s independence is its composition, as well as the procedures for recruiting and appointing the members of the commission and its chair, which must be by consensus. The members of the body must not form part of the executive, but strong leadership is also necessary, through the appointment as chair of a high-ranking magistrate, a respected public figure or somebody known for their neutrality, so as to be able to stand up to the influence of the executive and to the political parties.28 In that regard, the three election authorities vary in their composition. Whereas in Egypt it is an entirely judiciary body, in Tunisia and Libya it is more heterogeneous. That being so, since appointment to these commissions is dependent neither on the executive nor on the political parties—the selection being made by the authorities holding transitional legislative power, namely, ISROR in Tunisia and NTC in Libya—they do a priori satisfy international standards on the question of independence.29
A further guarantee of independence is budgetary autonomy. In fact, to ensure independence it is recommended that the election management authority have control of its own budget, which could constitute a percentage of the state budget, which it manages without being accountable to the executive. This requirement seems to be satisfied by all three commissions, which were, according to the instruments that established them, also endowed with legal personage and administrative autonomy.30 Next, let us examine the mandate given (p. 431) to the three bodies and the responsibilities entrusted to them. All three commissions were mandated to organize multiparty and transparent elections31 and were given full responsibility for the organization of elections in accordance with international standards. Their scope of competence includes the registration of voters,32 the registration of political parties and candidates,33 the regulation of media access for parties and candidates standing for election,34 the organization of voting procedures and the counting of votes,35 the announcement of preliminary and final results,36 accreditation of national and international observers,37 and last, certain responsibilities as regards the arbitration of complaints concerning the electoral process, with election disputes being, however, largely entrusted to the courts. The three bodies were thus given broad powers for the supervision of elections. However, independence implies not only supervision but also exercising full responsibility for implementation. In this there is a clear difference between the Tunisian and Libyan authorities and the Egyptian High Elections Commission: The Egyptian High Elections Commission entrusted all responsibility for implementation of its mandate and the decisions that it adopted to a general secretariat.38 It is this general secretariat, comprising a representative of the Ministry of the Interior among others, that is ultimately tasked with direct administration of the elections. This suggests that the Egyptian High Elections Commission cannot be considered to be an independent electoral commission; in our view, it comprises the independent component of a mixed model working in collaboration with this general secretariat, which has a strong executive component. Although the role of this judicial body does seem to have been strengthened and to enjoy higher status, these considerations have led some observers to conclude, not without regret, that this model is no different from the model of control established in 2005. Moreover, the Carter Center, which was one of seven observers accredited by the Electoral High Commission, noted that the latter could rely on the assistance of the Ministry of the Interior, which had made available all the necessary logistical resources and had taken on the task of distributing election materials.39 As for the power of regulation, this was exercised in collaboration with SCAF,40 which only further made its independence questionable. The situation seems to have been different in Tunisia and Libya.
(p. 432) Unlike the Egyptian authority, which limited itself to supervisory powers over the elections, the Electoral Commissions also carried out administrative tasks directly, in accordance with the powers accorded to them. The instruments establishing them had bestowed considerable regulatory power as well as the status of legal personage, and a financial and administrative authority that afforded them a logistical framework and access to resources. Although critical for completing a lacuna in the legal framework, this power complicated the task of the Electoral Commissions and necessitated the adoption of a stream of decisions in a short space of time, at the expense of legal security. That is what was revealed by the European Union observation mission in Libya, which criticized the legislative powers entrusted to the High Commission as being too broad for an administrative body.41 In Tunisia, the accompaniment of the election process left ISIE with the burdensome task of adopting a considerable apparatus,42 which altered the direction of its role, rendering it sometimes incapable of implementing its own decisions.43 Nonetheless, it has to be said that self-regulatory powers are a factor for independence, even if the tight schedule and lack of institutional memory did make the task rather more difficult.
B. Competitive Elections
In order for an election to express a free choice, political pluralism is of undeniable importance. In Tunisia and in Egypt, that expression of free choice had been curbed not only by a security regime, intent on smothering any dissident voices and dissuading any attempt at opposition, but also by a legal framework that curtailed the freedoms of partisan activity and election campaigns. The interim authorities in Tunisia and Egypt faced the challenge of breaking away from such practices and introducing adversarial debate during the elections in order to allow a free vote by the electorate. As for post-revolutionary Libya, it faced the challenge of establishing a legal framework for a multiparty system for the first time, as political parties had been criminalized under Act No. 17 of 1972 on the Prohibition of Partisan Activity, which stipulated that “anyone who joins a party is a traitor”,44 which al-Qadhdhāfī had adopted as a means of controlling the masses to prevent them from joining the opposition.45
To start with, both Tunisia and Egypt had, under Ben ʿAlī and Mubārak, established controlled “multipartyism” in which one party/state was at the center of political life. In fact, both countries evolved, step by step, from a one-party system to a system of a dominant party with satellite opposition parties, eliminating indefinitely any possibility of a change of power. It was within that authoritarian framework that the laws regulating political parties (p. 433) were adopted, as a means of perpetuating the hegemony of these parties over the political competition. The revolutions of winter 2011 shifted this landscape that had been disrupting the electoral playing field, and left the interim authorities facing an enormous challenge: how to open up political competition, whilst also streamlining it.
In this context, the “permissive” attitude46 of the interim authorities allowed the creation of a plethora of parties, and facilitated their involvement on the political stage. To reflect the new liberal practices, the Tunisian ISROR adopted new legislation on political parties that repealed the 1988 Act. In Decree-Law No. 87 of September 24, 2011, on political parties,47 based on the principles of freedom of political association, the system of prior authorization was abolished and replaced by a system of declaration to the prime minister (Arts. 6–16). State authorities were prohibited from directly or indirectly impeding the functioning of parties (Art. 5). The financial management and accounting rules for parties were carefully set down (Art. 19), which was an innovation per se.
Unlike the Tunisian ISROR, the Egyptian SCAF was content to amend Act No. 40 of 1977 on political parties by means of Decree No. 12 of 2011.48 Maintaining the previous restrictions, including notably the prohibition on parties of a religious or sectarian nature, the amendment primarily served to change the nature of the Political Parties’ Commission responsible for accrediting new parties: It replaced the administrative commission with a judicial committee based at the Court of Cassation, to comprise two vice presidents of the Court of Cassation, two vice presidents of the Council of State, and two vice presidents of the Court of Appeal. Decree No. 12 also removed another barrier to the creation of political parties, by repealing Art. 18 of Act No. 40 of 1977, which limited the guarantees and advantages of that Act to parties with at least ten seats in parliament. This liberalization enabled the creation of thirty parties in 2011, of all political directions: liberal, leftist, social-democrat, Islamic democrat. In this context emerged, in addition to the Muslim Brotherhood, which established its own party, the Freedom and Justice Party, several other Salafist parties, including the al-Nūr Party (literally “the Light”), the Party of Construction and Development, and the Authenticity Party. Former members of the National Democrat Party were also able to create seven small parties.49
In Libya, in the absence of any previous legal framework, the NTC had to intervene to organize partisan activity—especially in light of the proliferation of political parties after the Revolution. The NTC first adopted a law repealing Act No. 17 of 1972 on the Prohibition of Partisan Activity, which was judged to be “contrary to the objectives of the Revolution of February 17”;50 it then adopted Act No. 29 of 2012 on the Organization of Political Parties,51 which recognized in Art. 1 the right of any citizen to form a political party (p. 434) or to join one. The parties had to conform, in their objectives and their programs, with the Constitutional Declaration (Art. 8 (1)) and must not create military or quasi-military groups, nor use violence, foster discord and hate, or disseminate an ideology contrary to Sharīʿah or call for tyranny (Art. 9). The Act also prohibits any party reference to abroad (Art. 8 (4)) and any form of financing from abroad (Art. 18 (1)). The management rules are also meticulously detailed.52 The Act also adopted a system of prior authorization, by creating a political parties commission with the responsibility to consider requests (Arts. 10, 11, 12). The rejection of a request to register a party gives rise to a right to recourse before a judicial body appointed by the Supreme Court. We note that, under pressure from Islamists and Federalists, the NTC abandoned a prohibition on political groups based on religious or tribal considerations.53
Furthermore, the political opening up seen in the three countries involved, as well as the liberalization of the activities of political parties, also involves creating the conditions for open and healthy competition, breaking away from the corrupting practices of old, meticulous but crafty regulation in Tunisia, and benefiting from a more succinct framework in Egypt, where voters are in the habit of monetizing their votes. The challenge did not look like it was going to be easy to win, given the tight timetable, the financial disparities between the parties, which suggested very unequal election campaigns, in addition to the real risk of the biased use of religion since there were Islamist candidates in the running. In this respect, the different paths taken by the three countries had an impact on the regulation of the election campaigns. Whereas in Egypt the framework for intervention by the Judicial High Elections Commission is provided by Art. 11 of Act No. 38 from 1972 on the People’s Assembly, on election campaigns, Tunisia and Libya chose to adopt very detailed regulation on the issue so as to ensure equality of opportunity between candidates. Electoral corruption was solemnly prohibited in all three countries,54 as was the instrumentalization of religion.55 The election authorities adopted specific rules on the financing of election campaigns,56 in accordance with the requirements for electoral legislation to prohibit among other things the diversion of public funds to finance campaigns and foreign financing.57 Free access to information media, on the basis of nondiscrimination between the candidates, was also provided for.58
(p. 435) Notwithstanding some flaws in the regulation and some irregularities on the part of candidates, a line does seem to have been crossed in progressing toward the organization of competitive elections, heralding genuine political openness. Paradoxically, this openness was achieved at the expense of the exclusion of some political actors. First of all, the hegemonic parties of the old regime were legally dissolved in Egypt and in Tunisia. This was a measure imposed after the revolutions as a precaution against the dreaded return of these parties. We should not forget that on January 14, 2011, in Tunisia and in February 2011 in Egypt, determined crowds chanted slogans not only against the dictators but also against the parties in power, accused of mafia-like practices and a cronyism that was corrupting political life and governance. This rejection had subsequent repercussions for the legal framework of the elections, as it deviated from the right to be elected, which according to international standards may not be restricted on grounds of political affiliation.59
In fact, Art. 15 of the Tunisian Legislative Decree on the elections of the NCA denied eligibility to former heads of the Democratic Constitutional Rally (RCD), members of the government under the Ben ʿAlī era who had been RCD members, and persons who had called for President Ben ʿAlī to stand in the 2014 elections. These three grounds for ineligibility resulted in the exclusion of 8100 people. Seeming to be contrary to international standards, this process of exclusion raised questions about transparency, as well as the problem of notifying ineligible individuals and their right to appeal before the courts—a complaint that was identified by election monitoring missions.60
Libyan legislation made more extensive exclusions. The grounds for ineligibility listed in Art. 10 (4) of the electoral act included having held a position in the executive committee—a kind of government– or the position of president in a local committee, which was the authority that managed the affairs of the executive under the al-Qadhdhāfī regime, with no time restriction. Art. 10 of the electoral act introduced the criteria of national integrity, as defined by Decision No. 192 of 2011 adopted by the National Transitional Council, which rendered ineligible anybody who had belonged to or acted within the revolutionary committees (Art. 3) or who had glorified the al-Qadhdhāfī regime or engaged in propaganda for the ideology of that regime directly or in the media (Art. 5).61 With this in mind, a High Commission for Integrity and Patriotism Standards was created to oversee the application of these criteria; that body established a right to appeal against those decisions before the courts.62
A similar approach to exclusion had been expected in Egypt. The new political parties called for former members of the National Democratic Party to be barred from standing (p. 436) in the elections to the People’s Assembly. However, the highly controversial political isolation law was not adopted until April 2012, by the newly elected Assembly,63 and was struck down as unconstitutional a few days before the second round of the presidential elections in June 2012.64
The debate is still ongoing, in Tunisia around a bill on the “political immunization of the Revolution”, which aims to extend the exclusions intended to apply to the elections of the National Constituent Assembly to subsequent elections,65 and in Libya concerning a bill on political isolation.66 The electoral legislatures in the countries of the Arab Spring have found themselves caught as though in a noose, trapped between the requirements of “multipartyism” and the zeal of revolution.
The test of organizing free, fair, and transparent elections was not an easy one, but the challenge was met, more or less. Next we will consider the second test: the choice of voting system.
* The author and the editors sincerely thank Ms. Rebekka Yates for translating this article into English.
1 S. Belaid, “Les révolutions arabes contemporaines: quelques édifiantes similitudes” in H. M’rad and M. L. F. Moussa (eds), La transition démocratique à la lumière des expériences comparées (International Symposim held on May 5–7, 2011, in Tunis, University of Carthage, Tunisian Association of Political Studies, Tunis 2012) 11–21.
2 M. Lieckfett, “La Haute Instance et les élections en Tunisie: du consensus au ‘pacte politique’” (2012) 82 Confluences Méditerranée 133–144.
3 See E. Gobe, “Tunisie an I: les chantiers de la transition” (2012) VIII L’Année du Maghreb, VIII, 2012; M. Lieckfett (n 2) 133–134.
4 For more on this subject, see B. Rougier, “Elections et mobilisations dans l’Egypte post-Moubarak” (2012) 1 Politique étrangère 86–87.
5 See UNSC Res 1973 (March 17, 2011) UN Doc S/RES/1973; see also M. Mokhefi, “Maghreb: Révolutions inachevées?” (2012) 1 Politique étrangère 74–75; F. Gaub, “Libye: le rêve de Kadhafi devient-il réalité?” (2012) 3 Politique étrangère 653.
6 See Art. 30 of the Constitutional Declaration of August 3, 2012.
8 J. Schumpeter, Capitalisme, socialisme et démocratie (Payot, Paris 1965) 372.
9 It was during the Middle Ages that elections succeeded random selection by lot, an ancient method of designating representatives, P. Martin, Les systèmes électoraux et les modes de scrutin (3rd edition, Montchrestien, Paris 2006) 13.
10 K. Gossweiler, Hitler l’irrésistible ascension? Essais sur le fascisme (Aden editions, Brussels 2006) 13–54.
11 E. Millard, “L’État de droit, idéologie contemporaine de la démocratie” in J-M Février and P. Cabanel (eds), Question de démocratie (Presses Universitaires du Mirail, Toulouse 2001) 4–5, https://halshs.archives-ouvertes.fr/halshs-00126251, accessed September 15, 2015.
13 S. Laghmani, “Existe-t-il un mode de scrutin démocratique” in A. Amor, P. Ardant, and H. Rousillon (eds), Le suffrage universel (Presses de l’Université des sciences sociales de Toulouse, Toulouse 1994) 100.
14 The question was initially regulated by the first chapter, “General Provisions,” of Act No. 69-25 of April 8, 1969, containing the Electoral Code, Journal Officiel de la République Tunisienne, No. 14 of April 15, 1969, 422–432.
15 For more on this subject, see K. Debbeche, Le droit électoral tunisien: vers la rupture avec la tyrannie (Altair, Tunis 2011) 25–48 (in Arabic).
16 I. Farag, “Corrompre, fidéliser: Les ressorts ‘légitimes’ de la compétition électorale égyptienne” (2011) 7 Egypte/Monde arabe.
17 See N. Bernard-Maugiron, “Le juge, interprète de la constitution. La Haute Cour constitutionnelle et les élections parlementaires en Egypte” (2005) 2 Egypte/Monde arabe.
18 Art. 88 of the 1971 Constitution, as amended in 2007, provided: “The law shall establish the criteria that the members of the People’s Assembly must fulfil, as well as the arrangements governing the elections and the referendum […],” our translation of the French version of the Egyptian Constitution quoted by N. Bernard-Maugiron, “Nouvelle révision constitutionnelle en Égypte: vers une réforme démocratique?” (2007) 72 Revue française de droit constitutionnel 852.
19 See N. Bernard-Maugiron (n 18) 853.
20 N. Bernard-Maugiron, “Le printemps des juges et la réactualisation autoritaire en Egypte” (2007) 108 Politique africaine 4, 67–85.
21 UNCH “General Comment 25,” “§ 20 General Comments adopted by the Committee of Human Rights under article 40, paragraph 4, of the International Covenant on Civil and Political Rights” (August 27, 1996) UN Doc CCPR/C/21/Rev.1/Add.7.
22 Chapter 1 bis of the Act on the exercise of political rights (Act No.73 of 1956) on the High Commission for Elections was introduced by Act No. 173 of 2005 and amended by Act No. 18 of 2008, before being amended again by Decree-Law No. 46 of 2011.
23 Decree-Law No. 201 (April 18, 2011) establishing an independent higher election authority, JORT, No. 27, (April 19, 2011) 484–486.
24 Provided for under Art. 30 of the Constitutional Declaration cited above, the High Commission for Elections was organized by Act No. 4 of 2012 on the election of the General National Congress, NTC (January 28, 2012).
26 See Part III. Section A. 1, below.
29 See on this subject (n 25) 5.
30 Art. 3 of the Tunisian Decree-Law No. 2011-27. For Egypt, see Art. 3 (bis A) of Act No. 73 of 1956 on legal personality, Art. 3 (bis I) on administrative autonomy by means of a General Secretariat and Art. 3 (bis j) on financial autonomy.
31 Art. 2 of the Tunisian Decree-Law No. 2011-27, Art. 3 of the Egyptian Act No. 73 of 1956, amended, and Art. 1 of the Libyan Act No. 4 of 2012.
32 Art. 4 of Tunisian Decree-Law No. 2011-27, Art. 3 (bis f) of the Egyptian Act No. 73 of 1956, amended, and Art. 8 of the Libyan Act No. 4 of 2012.
33 Art. 4 of the Tunisian Decree-Law No. 2011-27, and Art. 12 of the Libyan Act No. 4 of 2012.
34 Art. 4 of the Tunisian Decree-Law No. 2011-27, Art. 3 (bis f) of the Egyptian Act No. 73 of 1956, amended, and Art. 19 of Libyan Act No. 4 of 2012.
35 Art. 4 of the Tunisian Decree-Law No. 2011-27, Art. 3 (bis f) of the Egyptian Act No. 73 of 1956, amended, providing that the High Commission shall appoint the polling and counting stations and Art. 26 of the Libyan Act No. 4 of 2012.
36 Art. 4 of the Tunisian Decree-Law 2011-27, Art. 3 (bis f) of the Egyptian Act No. 73 of 1956, amended, and Art. 33 of the Libyan Act No. 4 of 2012.
37 Art. 4 of the Tunisian Decree-Law 2011-27, Art. 3 (bis f) of the Egyptian Act No. 73 of 1956, amended, and Art. 43 of the Libyan Act No. 4 of 2012.
44 Act No. 17 of 1972 on the prohibition of partisan activity (Tajrim el hizbiaa) Libyan Official Journal (May 30, 1972) 206–208.
45 M. Ouannes, Militaires, élites et modernisation dans la Libye contemporaine (L’Harmattan, Paris 2009) 114–115.
46 M. C. Sarsar, “La transition démocratique et les partis politiques en Tunisie” in H. M’rad and M. L. F. Moussa (eds), La transition démocratique à la lumière des expériences comparées (n 1) 284.
47 JORT No. 74 of September 30, 2011, 1993–1996.
48 Decree-Law No.12 of 2011 amending some provisions of Act No. 40 of 1977 on political parties, Official Journal, No. 12 (bis A), March 28, 2011.
49 T. A. Aclimandos, “Comment les législatives se négocient: quelques réflexions sur les élections égyptiennes” (2012) 82 Confluences Méditerranée 78; A. A. Feyed, “Les Salafistes en Egypte: entre la légitimité de la Fatwa et la légitimité électorale,” Al Jazeera Centre for Studies (July 1, 2012), http://studies.aljazeera.net/reports/%7BUrl%7D, accessed May 4, 2015.
52 Arts. 17, 18, 19, 20, 23, 24, 25, 26.
54 See Art. 18 of the Tunisian Decree-Law on political parties; Art. 2 (8) of the Decision No. 21 of the Egyptian Judicial Electoral High Commission, on the rules organizing the electoral campaign for the elections of the People’s Assembly; and Art. 8 of Decision No. 59 of 2012 on election campaigns, adopted by the Libyan Electoral Commission.
55 See, for Egypt, Art. 2 (2) of Decision No. 21 of the Judicial Electoral High Commission cited above as well as its Decision No. 67 of 2011; and Art. 38 of Decree-Law No. 35 cited above and Art. 8 of Decision No. 59, cited above, for Tunisia and Libya, respectively.
56 ISIE Order No.3 establishing the rules and procedures for the election campaign September 3, 2011, published in JORT (in Arabic), No. 67 of September 6, 2011, 1734–1738 and the Libyan Decision No. 59, op. cit.
57 In Tunisia, Art. 39 of Decree-Law No. 35, cited above, prohibits the use of public money or resources in campaigns and Art. 52 of the same instrument prohibits the campaign finance from “foreign resources of any kind.” Analogous prohibitions can be found in Libya in Art. 21 of Act No. 4 of 2012 on the election of the National General Congress, cited above. See also Arts. 2 (3), 4, and 6 of the Egyptian Decision No. 21, cited above.
58 See Art. 45 of the Tunisian Decree-Law No. 35 cited above and Art. 19 of the Libyan Act No.4 also cited above. The Tunisian ISIE adopted an order on the conditions for production and transmission of radio and television transmissions relating to the electoral campaign, September 3, 2011. Decision No. 64 of the Libyan Electoral Commission, on election campaigning in public and private media, was also adopted on May 13, 2012. Art. 2 (14) of the Egyptian Decision No.21 cited above provides for equality of access to information resources, specifying the modalities for achieving this.
61 Decision No.192 of 2011 on the criteria for national integrity, available on the National Transitional Council website, http://www.ntc.gov.ly, accessed May 4, 2015.
62 High Commission for the Application of Standards of Integrity and Patriotism, established by Decision of the National Transitional Council No. 16 of 2012, http://www.ntc.gov.ly, accessed May 4, 2015.
63 Act No. 17 of 2012, amending Act No. 73 of 1956 on the exercise of political rights.
64 See Part IV; Section A. 3, below.
67 R. Ennaifar, “L’organisation transitoire du pouvoir en Tunisie, de l’après 14 janvier 2011 jusqu’à l’élection de l’Assemblée Nationale Constituante (en arabe)”, Tunis, Altair éditions, 2011, pp. 30–31.
68 Art. 5 of Decree-Law No. 2011-16 on ISROR, cited above, stipulates that decisions shall be adopted by consensus, or if this proves impossible, by majority.
69 This draft proposed uninominal constituencies (with one seat in play per constituency) calculated on the limits of delegations (numbering 268), which would have made it possible for all regions to be represented regardless of how many inhabitants they had.
70 “Débats de l’Instance supérieure de la réalisation des objectifs de la Révolution, de la réforme politique et de la transition démocratique” sessions of March 31, 2011, Volume I, from the months of March to May 2011, published in January 2012, 103, 107, Session of April 11, 2011, 122 (in Arabic).
73 S. Ben Nefissa, “Les partis politiques en Egypte entre les contraintes du système politique et le renouvellement des élites” (1996) 81–82 Revue des Mondes Musulmans et de la Méditerranée 57.
75 T. A. Aclimandos (n 49) 79–80.
76 On the electoral strategy of the Muslim Brotherhood under the Mubarak regime, see M. Vannetzel, “Les voies silencieuses de la contestation: Les Frères musulmans, entre clientélisme et citoyenneté alternative” (2008) 1 Raisons politiques 23–37.
77 See on this Islamist exception, S. Ben Nefissa (n 73) 57 et seqq.
78 M. S. Di Noguiez, “Rapport d’évaluation des élections du Congrès National Général,” Libya, IDEA (July 7, 2012) 14 (in Arabic).
80 A. Lijphart, “Constitutional choices for New Democracies” (1991) 2 Journal of Democracy 81.
81 The Decree-Law was adopted by a strong majority, with 5 against and 4 abstentions, “Débats de l’Instance supérieure de la réalisation des objectifs de la Révolution, de la réforme politique et de la transition démocratique,” vol I, session of April 11, 2011, 240.
82 Under limited proportional representation, there are two phases to the distribution of seats—first, seats are distributed between the lists, then the remainder is allocated. Electoral laws determine the method for allocation of the remainder. Under Art. 35 of the Decree-Law, the greatest remainder method was chosen, which consists of allocating seats, successively, to the lists that won the greatest of the remainder, C. Debbasch, J-M Pontier, J-M Bourdon and J-C Ricci, Droit constitutionnel et institutions politiques (Economica, Paris 2001) 69.
83 Art. 16 of the Decree-Law No. 35, cited above.
84 Art. 31 of the Legislative Act cited above stipulated one seat per 60 000 inhabitants.
85 This method involves looking at the average number of voters that each list would have had, if each one had been allocated the seat or seats available. The list that won the biggest average then wins the remaining seat.
86 S. Belaid, “L’épouvantail,” La presse (May 8, 2011).
87 M. Lieckefett (n 2) 136.
88 See “Débats de Instance supérieure de la réalisation des objectifs de la Révolution, de la réforme politique et de la transition démocratique,” session of April 11, 2011, 222.
90 See “Débats de Instance supérieure de la réalisation des objectifs de la Révolution, de la réforme politique et de la transition démocratique,” session of April 11, 2011, 222.
91 T. A. Aclimandos (n 49) 80.
92 Art. 1 (1) of Act No. 38, as amended by Decree-Law No. 120 of 2011 of the Supreme Council of the Armed Forces amending some provisions of Act No. 38 of 1972 on the People’s Assembly and Act No. 120 of 1980 on the Senate, Journal Official, No. 38 bis, September 26, 2011, 3–5, http://www.masrlaw.com/Legislations/Egypt_Legislations_Images.aspx?ID=279117, accessed May 4, 2015 (in Arabic).
93 Art. 3 (2) of Act No. 38, as amended by the Decree-Law cited above. On electoral division, see Decree-Law No. 121 of the Supreme Council of the Armed Forces, amending Act No. 206 of 1990 on the determination of electoral constituencies for elections to the People’s Assembly, Official Journal, No. 38 bis, September 26, 2011, 8, http://www.masrlaw.com/Legislations/Egypt_Legislations_Images.aspx?ID=279118, accessed May 4, 2015.
94 Art. 3 (5) of Act No. 38, as amended by Decree-Law No.120, cited above.
95 Art. 15 of Act No. 38, as amended by Act No. 188/1986, Act No.201/1990, and Decree-Law No. 108 of 2011.
96 Art. 3 (3) of Act No. 38, as amended by the Decree-Law No. 120 cited above.
97 For the 46 constituencies reserved for PR, 4 to 12 seats were available, but three-fourths of constituencies are small in size, varying between 4 and 8 seats as follows: 15 constituencies of 4 seats, 1 constituency of 6 seats, 19 constituencies of 8 seats, 9 constituencies of 19 seats, and 12 constituencies of 12 seats. See Elections in Egypt, Analysis of the 2011 Parliamentary Electoral System, IFES Briefing Paper, November 2011, http://www.ifes.org/, accessed March 23, 2016.
98 T. A. Aclimandos (n 49) 79–80.
99 Elections in Egypt, Analysis of the 2011 Parliamentary Electoral System, op. cit. 11.
100 See Part IV, Section A. 3, below.
101 Vertical alternation means the position of the candidates on each list alternating by gender, whereas horizontal alternation requires them to be alternately positioned at the top of the list from one constituency to another.
102 In this perspective, the territory was divided into 13 constituencies, subdivided into 73 subconstituencies: 50 for mixed voting, 19 for majority voting, and 4 for proportional representation. Given that the electoral legislature opted for a mixed voting system, two levels of constituency were adopted, namely 20 plurinominal constituencies for the list-based ballot and 21 constituencies for majority voting, with overlap for some constituencies in which the electors are asked to vote for lists and for independents, Act No. 4 of 2012 on the election of the National General Congress, cited above, and Act No. 14 of 2012 on the determination of electoral constituencies for the election of the National General Congress, NTC, February 12, 2012.
103 See Part IV, Section B. 1, below.
104 P. Martin (n 9) 61–62.
106 Figures available on the website of the High National Elections Commission, http://www.hnec.ly, accessed May 4, 2015.
107 The lists of candidates who did not win any seat won 809,387 votes, which is 20% of the total electorate, Independent High Authority for Elections. See “Report on the elections of the National Constituent Assembly,” op. cit. 191. On declaration of the final election results, see the Order of November 13, 2011, JORT (in Arabic), No. 87 of November 15, 2011, 2729–2738.
108 According to the Code of Good Practice in Electoral Matters, “Equality in voting power, where the elections are not being held in one single constituency, requires constituency boundaries to be drawn in such a way that seats in the lower chambers representing the people are distributed equally among the constituencies, in accordance with a specific apportionment criterion.” See “Code of Good Practice in Electoral Matters”. Guidelines and explanatory report, adopted by the Venice Commission at its 52nd session (18–19 October 18–19, 2002), http://www.venice.coe.int/, accessed March 23, 2016; M. S. Di Noguiez (n 78) 16; “Final Report of the Carter Center Mission to Witness the 2011–2012 Parliamentary Elections in Egypt” (n 39) 31.
109 Results available on the website of the High National Elections Commission, http://www.hnec.ly, accessed May 4, 2015.
112 See M. Duverger, Les partis politiques (Armand Colin, Paris 1981) 491.
115 See, for example, the article by B. Barthe and H. Sallon, “Libye: les libéraux donnés gagnants des élections,” Le Monde (July 9, 2012).
117 Art. 60, cited above, of the Constitutional Declaration of March 30, 2011.
118 C. Debbash, J-M Pontier, J-M Bourdon, and J-C Ricci, Droit constitutionnel et institutions politiques (Economica, Paris 2001) 69.
120 H. M’Rad, “Alliances stratégiques et potentielles des partis en vue de la Constituante” in Les nouveaux acteurs du jeu politique tunisien (Les Ières Conférences de l’ATEP, Friday October 14, 2011, Tunisian Association of Political Sciences, 2011) 44.
121 Constituent Act No. 6 of 2011 establishing provisional organization of the State authorities, JORT, No. 97, December 20 and 23, 2011, 3111–3115.
122 See Art. 14 of the Constituent Act No. 6 of 2011.
123 Art. 11 of the Constituent Act gives the President of the Republic the task of promulgating the laws and agreements approved by the National Constituent Assembly. Although the act confers on the president the power to appoint the head of government, Art. 15 by way of counterweight requires the head of government be the candidate of the party with the most seats in the NCA. The determination of foreign policy and the power of appointment to senior military and civil, diplomatic, and consular roles are exercised by joint agreement with the head of government. Moreover, the President of the Republic shall declare a state of emergency only after the head of government and the president of the NCA have concurred in this. The government of the Central Bank is appointed after consultation between the President of the Republic and the head of government.
124 The scope of the competencies accorded to the head of government is considerable. The head of government was granted under law the power to preside over the council of ministers, the power of appointment to senior civil positions, the power of general regulation, absolute control over the administration, public enterprises, territorial collectivities, and state forces.
125 The crisis came to a head on February 6, 2013, with the assassination of Shukrī Belʿayd, an outspoken opposition leader with the Democratic Patriots’ Movement, a pan-Arab party based on Marxist-Leninist principles.
126 Art. 140 of the Internal Regulations of the GNC.
127 It seems that a coordination committee was created for the Islamist parties represented within the Congress. It included the Justice and Construction Party, the Party of the Nation, the Homeland Party, the Salafist party Aṣālah, and some independents. See S. Bsikri, “Abushagur’s Leadership amidst Division,” Reports, Al Jazeera Centre for Studies (October 8, 2012), http://studies.aljazeera.net/en/reports/%7BUrl%7D, accessed May 4, 2015.
130 S. Ben Nefissa “Trajectoires transitionnelles et élections: Egypte, Tunisie” (2012) 82 Confluence Méditerranée 9–29.
131 V. Collombier, “Egypte: les Frères musulmans et la bataille pour le pouvoir” (2012) 3 Politique étrangère 617.
132 T. A. Aclimandos (n 49) 77 et seqq.; S. Ben Nefissa (n 130) 15.
133 SCC, June 14, 2012, No.20/34e. See text of the judgment in M. Abdulghani and R. Dechaux, “ Les arrêts de la Cour constitutionnelle suprême égyptienne du 14 juin 2012. La juridictionnalisation des transitions démocratiques en question” (2013) 2 Revue internationale de droit comparé 379–384.
134 SCC, May 16, 1987, No.131/6e in Rec., vol. 4, 43–44.
135 SCC, May 19, 1990, No. 37/9e in Rec., vol. 4, 256 et seqq.
136 S. Ben Nefissa and A. Arafat, Vote et Démocratie dans l’Égypte contemporaine, (Khartala-IRD, Paris 2005) 138.
137 SCC, June 12, 2012, No. 57/34e. See text of the judgment in M. Abdulghani and R. Dechaux (n 133) 384–388.
138 N. Bernard-Maugiron (n 17) 123.
139 First bill dated August 13, 2012, second bill dated December 14, 2012, and third bill dated April 22, 2013; all three texts available at http://www.anc.tn/, accessed September 16, 2015.
140 See Art. 42 of the NCA’s Internal Regulations, JORT, February 14, 2012, 469 (in Arabic).
141 See Art. 60 of the NCA’s Internal Regulations (n 140) 470.
142 Art. 3 of the Constituent Act on the provisional organization of the public authorities, cited above.
144 Constitutional Act No. 1 of 2012 amending certain paragraphs of Art. 30 of the Constitutional Declaration, NTC, March 13, 2012.
145 Decision No. 9 of 2013 of the General National Congress, on election of the Constituent Committee by a direct ballot, February 27, 2013, available on the website of the General National Congress.
146 Supreme Court, Constitutional Chamber, Judgment of February 26, 2013, No. 28/59.
149 Decision No. 30 of 2013 of the GNC on the establishment of a committee to prepare a draft electoral law for the election of a constituent committee mandated to draw up the draft permanent constitution, April 11, 2013.
150 N. Bernard-Maugiron (n 17) 124–125.
151 CS, 10/4/2012, No.26657/66.
152 This agreement gave 39 seats to representatives of political parties with seats in the PA, 6 to judges, and 9 to legal experts. The armed forces, the police, and the ministry of justice were given 1 seat each; 13 seats were given to trade unions, 21 to public figures, 5 to Al-Azhar, the Sunni religious authority based in Cairo, and 4 to the Christian churches of Egypt including the Coptic Church, the largest in the country. See “Choosing the members of the constituent: compared experiences and lessons learned”, Discussion paper (in Arabic), IDEA (November 2012) 1, http://www.constitutionnet.org/files/finalidea.pdf, accessed May 4, 2015.
153 According to Art. 56 (5) of the Constitutional Declaration, “the Supreme Council of the Armed Forces shall manage the country’s affairs, and has the right to have immediately the following powers: … 5. Promulgate legislation or to oppose legislation,” Declaration cited above.
154 Act No. 79 of 2012 on the criteria of election of the Constituent Assembly’s members, Official Journal, (in Arabic) No. 28 bis, July 12, 2012, 3–5.
155 Case No. 45931, October 23, 2012.
156 Constitutional Declaration of November 22, 2012, available at http://www.sis.gov.eg/Fr/Story.aspx?sid=39769, accessed May 4, 2015. See on this subject: “Egypt’s Constitutional Decree Crisis,” Position paper, Al Jazeera Centrer for Studies (December 6, 2012), available at http://studies.aljazeera.net/en/positionpapers/%7BUrl%7D, accessed May 4, 2015.
159 See L. Morel, “La pratique dans les démocraties libérales,” Le référendum, Pouvoirs, (April 1976) 38.
161 C. Eisenmann, “Sur la légitimité juridique des gouvernements” in Annales de philosophie politique, No.7, L’idée de légitimité (PUF, Paris 1967) 115.
162 P. Pasquino (n 7) 11.
164 Y. Ben Achour (n 114).
165 S. Belaid, “L’article 1er: La Tunisie est un Etat libre, indépendant et souverain, sa religion est l’islam […]” (En arabe), Les disposition générales de la Constitution, Actes du colloque de commémoration du cinquantenaire de la promulgation de la constitution tunisienne du 1er juin 1959, édité par le soin de l’Association tunisienne de droit constitutionnel, Tunis, 23–24 janvier 2009, Tunis, 2010, 36.
166 C. Schmitt, “La Théorie de la constitution” (PUF, Paris 1993) 162.
167 In addition to the declarations in the preamble of fidelity “to the teachings of Islam” and Art. 1, Art. 40 requires candidates to the highest office to be of the Muslim faith.
168 It makes reference to the civic state in the preamble to the draft, in Arts. 2 and 136.
169 Y. Ben Achour, “Rapport introductif” in Tunisian Association of Constitutional Law and the Association for research on democratic transition (eds), Lecture de l’avant-projet de la Constitution. Evaluation et propositions (Tunis March 2013) 9.
170 See S. Ben Achour, “Les chantiers de l’égalité au Maghreb” (2004) 13 Policy paper, 3.
172 Y. Ben Achour (n 114).
173 Libya Supreme Court, Constitutional Circuit, Constitutional Appeal No. 03/59 JY, February 2013. See A Revolution for All, Women’s Rights in the New Libya, May 27, 2013, on the website of Human Rights Watch, https://www.hrw.org/report/2013/05/27/revolution-all/womens-rights-new-libya, accessed September 15, 2015.
174 The Constitution of Republic of Tunisia promulgated on January 27, 2014, a nonofficial translation of the constitution provided by the UNDP Project Supporting the Constitutional Process, the National Assembly and National Dialogue, available at http://www.venice.coe.int/files/Constitution%20TUN%20-%2027012014.pdf, accessed September 4, 2015.