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Part 4 The Fragile Basis of Democracy and Development, 4.2 The Difficult Path toward Democracy: New Electoral Systems in Egypt, Libya, and Tunisia

Kaouthar Debbeche

From: Constitutionalism, Human Rights, and Islam after the Arab Spring

Rainer Grote, Tilmann J. Röder

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 425) 4.2  The Difficult Path toward Democracy

New Electoral Systems in Egypt, Libya, and Tunisia

I.  Introduction

The Arab revolutions share “some edifying similarities”:1 They were unexpected, spontaneous, and contemporaneous. For the Arab world, the revolutions brought enthrallment, and hope of proceeding at last to the bed of democracy. There have been a variety of paths taken toward this shared democratic objective, in a disconcerting acceleration of the constitutional histories of the countries concerned. In Tunisia, the path was shaped by a “political pact”,2 sealed by the Higher Authority for Realization of the Objectives of the Revolution, Political Reform, and Democratic Transition (ISROR).3 In Egypt, following the deathblow delivered to the regime of Ḥusnī Mubārak, ownership of the democratic transition paradigm was taken by the Supreme Council of the Armed Forces (SCAF).4 In Libya, which had previously resisted any attempt at institutionalization, it was on the battlefield that the (p. 426) National Transitional Council (NTC) seized the reins of power, in an internationalized crisis.5 These three institutions, embroiled in the dialectic between break and continuity with the old orders they were supposed to dismantle, were the main actors of transition, mandated to prepare elections that should, by one means or another, lead to the development of a new constitution that embodied the break with authoritarianism and assured the path to democracy.

Tunisia, which was blessed with the most orderly transition process, chose the path of direct election of the constituent body. In Egypt, SCAF, in application of the (original) Constitutional Declaration of March 30, 2011, first organized elections to the People’s Assembly (PA) or lower chamber of parliament, the epicenter of Egyptian political life, which was in turn called upon to help appoint a constituent committee. In Libya, the NTC drafted the necessary legislative provisions for the election of the General National Congress (GNC), a kind of an omnipotent parliamentary assembly tasked with forming a government and appointing a constituent committee.6 Another characteristic that all three countries had in common, despite the variety of their approaches, was their focus on elections.

In their focus on elections one might think the actors of transition had not strayed from the democratic path; after all, according to traditional liberal theory, elections are the alpha and omega of democracy.7 Yet accepting this gives a Schumpeterian tone to democracy. The function of the electoral ballot in this formal and instrumental democracy “consists of giving birth to a government”8—no more, no less. Yet although elections are inevitable as the modern means of appointing representatives,9 the electoral principle alone is not enough: History has taught us that democracy does not flow directly from the ballot box, which, as an example, the Nazi experience shows, can also produce a dictatorship.10

The solution is therefore to be found in “the construction of a moderate democracy based on Abraham Lincoln’s logic of “government of the people, by the people, for the people”, which would protect the people from itself and make individuals the source of power (sovereignty of the people), the means of power (electoral body, referendum) and the purpose of power (individual rights)”.11

In this context, the electoral system denotes “in its simplest form […] the translation of votes cast, in a general election, into seats won by the various parties and candidates. The key variables in this are the voting system (a majority or proportional system and the mathematical formula used to calculate the allocation of seats) and the size of the constituencies (p. 427) (i.e. not how many voters but how many representatives there are per constituency)”12—and of course the organization of the electoral process. From the perspective of a formal democracy, the systems in the countries of the Arab Spring have suffered from birth defects, having not been “democratically established”—i.e., they were not “determined […] by those who are governed”,13 either through their representatives or in a referendum. The systems were created by non-elected institutions, namely, ISROR in Tunisia, NTC in Libya, and SCAF in Egypt. But, although these institutions did not enjoy the legitimacy bestowed by election, they were, rightly, given as their principal mandate the task of ensuring the organization of democratic elections, and it is this that affords them a degree of “teleological legitimacy”. Among the main pitfalls that lay in their way, we might mention the burden of historical legacy that lends a negative charge to elections in Egypt and Tunisia; the absence of an electoral tradition and of institutional infrastructure in Libya; the security challenges; and, on top of that, the relentless pressure that the actors of transition were under due to the heavy weight of expectations and to revolutionary fervor. In a climate of uncertainty, the electoral systems, although nondemocratic in origin, were paradoxically obliged to lead the way toward democracy. We will consider the systems of Tunisia, Egypt, and Libya from this perspective, in order to assess how well they have enabled progress toward the goal of democracy.

Given the electoral experiences of the three countries, achieving the goal of democracy will entail meeting a triple test: first, the challenge of organizing free, fair, and transparent elections (Part II); second, the test of choosing an appropriate voting system (Part III); and third, with the groundwork thus laid, the test of putting that newly won democracy into practice (Part IV).

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.

III.  Expressing Democracy: The Test of Choosing a Voting System

Amid the climate of uncertainty that characterized the pre-election period in the countries of the Arab Spring, it was necessary to negotiate a formula in which all the actors of the transition could find their place—one that favored a consensus solution, that represented the various interest groups, and that embodied the break with the past. These requirements go a long way to explain the rejection of a majority electoral system (Section A). In order to achieve sufficient representativeness, the electoral legislators in all three countries opted for proportional representation systems, although the weighting allocated to the votes varied (Section B).

A.  A Resounding Rejection of the Strict Majority Option

Majority voting allows the winning candidate or list in a constituency to take all the seats available. Uninominal or plurinominal, with one or two rounds, majority voting comes down to the same thing: The winner takes it all. It was this that the political powers in all three countries rejected. As well as being tarred by the way it had been used in the past, a majority system is also unpredictable. With fraudulent practices having been eliminated, there was a risk that the freely expressed will of the electorate might return a majority that ought not to be over-represented; the social contract that was being renewed through the establishment of a constitution could not countenance that. Haunted by the specter of Islamism, but also by the fear of returning to the symbols of the old regimes, the electoral debates in all three countries rejected the option of majority voting, which was the system that had applied in Tunisia and in Egypt before the wave of revolution had swept over them.

(p. 437) 1.  Tunisia

In Tunisia, ISROR, the architect of transition, was a new authority that included twelve political parties, nineteen trade unions, civil society, or professional associations, and personalities from across the political spectrum (moderate Islamist, socialist, nationalist, Baʿthist, Trotskyist, and Maoist), as well as representatives of the regions and of the families of martyrs of the Revolution. Greatly criticized, it had not really translated the balance of political power after the Revolution.67 ISROR’s legitimacy was called into question too, given that it had not come from the ballot box. And yet it worked. Despite its purely consultative role, the dynamic of the body shows that it functioned like a parliamentary assembly. It was the main deliberative forum of transition, where the new political rules of the game were negotiated. The electoral law particularly stirred up debate, due to the nature of representation and the means of decision making within ISROR, which favored consensus.68 This is what paved the way to the quest for compromise: The intermingling of diverse political movements, represented equally within ISROR in a distortion of their true weight on the political chessboard, was not without influence in the definitive choice of a system capable of representing the various political actors, and thus of avoiding the hegemony of any one political group in the future assembly.

In truth, the starting point was to avoid the resounding failures of list-based majority voting, as a result of the hegemonic past of the party in power, in order to avoid a repetition of history.

However, the nature of the constitutional mandate was well suited to uninominal majority voting, which explains why this option was set out in one of the two drafts presented by the committee of experts, which proposed two-round, uninominal majority voting. This draft69 was favored by eminent Tunisian academics who saw in it a break from the bitter experience of list-based majority voting. However, the advantages presented were not sufficient to convince the majority of ISROR members, notably among the representatives of political parties.70 A two-round uninominal voting system can result in contests between individuals, rather than competing ideas and programs. The parties and candidates standing may effectively have been encouraged to base their election campaigns on tribal and regional ideas, which might have favored local notables, and the return of the symbols of the old regime.71 Another complaint leveled against uninominal majority voting is that it does not allow the application of a gender-based approach and the representation of women, something to which many members of ISROR attached importance.72 In the end, this draft was quickly eliminated, largely because it would have penalized the political parties.

In reality, the official line within ISROR was to talk about the quest for a diverse assembly that represented all parties and ethnic sensitivities, whilst allowing the political parties (p. 438) to be represented in the future assembly. The challenge was a difficult one, but meant rejecting majority voting in favor of proportional representation.

2.  Egypt

In Egypt, the deal was different. SCAF had sealed the transition period and had to work with the various actors already in place, which goes some way in explaining its decision to revive an electoral law that the opposition had long vilified, by making some amendments to it. The law in question was Act No. 38 of 1972 relating to proportional representation, which already embodied a vacillating electoral policy. It had in fact undergone a torrent of amendments. Uninominal proportional representation in 1972, a party-list voting system with proportional representation in 1983, a mixed voting system in 1987, and back to the uninominal system in 1990—it would be difficult to explain all this to-ing and fro-ing between uninominal and party list proportional representation without relating it to a policy of deliberate disassociation with “the partisan fate of the electoral competition in the conquest and exercise of political power”.73

The elections in Egypt were thus affected by this instability in the rules of the game, which changed from one election to the next. After the blow delivered to the Mubārak regime by the Revolution of February 25, 2011, this electoral jockeying no longer made sense: It was time to clean up the legal framework. Yet SCAF chose instead to tinker with the legal framework once again, by opting for a mixed system, creating yet again instability in the rules of the game.

In fact, over the course of four months various formulas for the mix were outlined: majority voting for two-thirds of the People’s Assembly on May 30, 2011, equal cohabitation with proportional representation on July 20, 2011, before deciding on September 25, 2011, to concede one-third to independent candidates. This provoked violent reactions from various political groups, who feared the return of the caciques of the old regime. How can these vacillations by SCAF be explained, after it had brought about such a strong mobilization on the Taḥrīr Square and the organization of demonstrations in which Islamists and revolutionaries took part?

In fact, the results of the elections were determinative in making SCAF’s control over the transition process lasting. These “concerns […] seem to have fluctuated during this time between a ceiling—using the electoral law to prevent the emergence of an independent political power capable of creating a power counterbalance to the military—and a floor—ensuring at all costs the organization of free elections in order to fulfill the promise that formed the basis of its legitimacy, within Egyptian society and in the international community”.74 In abandoning the strong majoritarian dose, the military opted, under pressure from the various political actors, for the least contested solution. Although the Islamists were not strongly in favor of uninominal majority voting, which did not benefit identity voting, it was above all the non-Islamists who criticized uninominal majority voting.75

Yet the resistance to uninominal majority voting is surprising given that it is a system more beneficial to smaller parties, because it is thought to allow them to stand for election in smaller constituencies. Yet paradoxically the liberal coalition strongly rejected this system, not only because it was associated with the cronyism of old and would have allowed the return of the caciques from the old regime but also because a strong majority dose was judged to be too favorable to the Muslim Brotherhood. After all, it was uninominal majority voting that had allowed them to win 20% of seats in 2005. Well-structured, and taking (p. 439) advantage of the social anchorage that the Muslim Brotherhood enjoyed as a result of its long-standing social, sanitary, and religious works,76 the Islamist political movement which had always been the exception in the murky picture of the Egyptian party system was by all accounts expected to be the favorite in this electoral consultation77.

3.  Libya

Unlike the designers of the new electoral systems in Egypt and Tunisia, the Libyan NTC did not have the option of putting right the perverse effects of a previous voting system: Everything had to be built from scratch. Developing a voting system without an electoral reference point left the National Transitional Council facing countless difficulties: In a fundamentalist, tribal country with leanings toward the East, and with multiple political parties with no practical experience, it was a Herculean task.

That being said, the NTC had to contend with an impressive plethora of voting systems and an infinite number of possible combinations, but with one big advantage, namely, the very recent experience of its immediate neighbors, Tunisia and Egypt, where the Islamists had triumphed at the ballot boxes. Initially, the NTC had expected to adopt uninominal majority voting, which was judged to be the pragmatic choice in a tribal society that, after decades in which any form of intermediary body was prohibited, had no political institutions nor any real civil society.78 Except that adopting majority voting alone would have worried the political groups that were starting to take shape. They weighed in with all their might in the debates of the National Transitional Council, a heterogeneous college comprised of dissidents from the old regime, tribal representatives, and representatives of civil society and of course the Islamists,79 who, in spite of having been persecuted under the al-Qadhdhāfī regime they did not enjoy the socio-political anchorage characteristic of the Muslim Brotherhood in Egypt, were an important component of the political offer in post-revolutionary Libya. These members had to come to an agreement in order to develop the new electoral law, the main function of which was to avoid producing a hegemonic majority. The weight of historical baggage and the peculiarities of the post-revolutionary political power balance led the electoral legislatures in all three countries to reject the straightforward majority option in favor of systems that would ensure greater representativeness. This prompted them to turn to a proportional solution, in various forms.

B.  The Goal of Proportionality, Variously Expressed

Arend Lijphart considered proportional representation to be the system best suited to new democracies, which are by definition fragile. The advantages of this method include respect for representation, protection of the interests of minorities, and encouragement of voter participation.80 It is moreover not surprising that it was this method that was preferred by (p. 440) the electoral legislatures in the three countries, albeit in different ways. Entirely proportional in Tunisia, the system was mixed in Libya and Egypt, but with the stated goal of proportionality.

1.  Tunisia

In Tunisia, the watchword of the electoral debates was representation—of various political sensitivities, of women, and of the regions. After rejecting two-round uninominal majority voting, ISROR voted, in Art. 32 of Legislative Decree No. 35, op. cit., quasi-unanimously for party-list proportional representation using the largest remainder method.81 In opting for limited proportional representation,82 which presupposes a plurality of constituencies, the problem of the remaining votes and seats, which is unavoidable in proportional systems, was resolved using the largest remainder method, which is beneficial to small political parties. The method was intended to be representative. First, with regard to women, the lists had to be gender equal and moreover, under threat of rejection, were required to list male and female candidates in alternate order.83 Second, with regard to the regions—although large constituencies were retained—corresponding to the governorates, there was positive discrimination in favor of governorates that had a low population density or were economically marginalized, with these being allocated additional seats in order to reduce the distortion of representation that would have been created by an equal distribution of seats.84 This pursuit of representativeness prompted ISROR to ratify a voting system that, despite the bold measures that went alongside it, ran the risk of voter abstention due to the complexity of the party lists, of which, when the legislative decree was adopted, there were a great many.

In fact, this system is just a revised version of one of the two drafts submitted by the committee of experts to ISROR, which instead of the greatest remainder system had proposed the highest average method,85 as that is the most proportional way of redistributing the remainders. Another change was in the composition of the lists, as the draft had proposed short, gender-equal lists of just two or four names, which would have been closer to the uninominal majority voting system and would simultaneously have enabled women’s representation and simplified the choice open to the electorate. So, given that the constituent body was mandated to invest and control a government, why were these changes, that have only served to amplify the risks inherent with proportional representation (namely, the multiplication of parties within the assembly and therefore the risk of governmental instability), made to the draft?

(p. 441) This last method of seat redistribution was presented as being the only method capable of combining justice and efficacy, representativeness of the small political parties, and a comfortable presence by the big parties. What lay behind this change was the hopes of the parties of the left and center-left represented within ISROR of being able to obtain a large enough number of seats to act as a counterweight to the al-Nahḍah Party,86 which at the time was “leading in the polls”.87 The al-Nahḍah Party, although it would have preferred the highest average method,88 was obliged to concede due to the balance of power within ISROR, and also in order to reassure public opinion, domestically and internationally.89 It also did not put up any resistance to parity,90 as a means of attesting to its unconditional adherence to the Tunisian social contract, based largely on the status of women.

2.  Egypt

In Egypt too, it was proportional representation using the greatest remainder method that was chosen—for two-thirds of seats. The other third, as we have already discussed, was reserved for uninominal two-round majority voting. A compromise solution that made it possible to satisfy the various political actors, Islamist and non-Islamist, who all preferred proportional representation, and a large section of the electorate who preferred there to be a direct relationship with the elected representatives91—not, it has to be said, without risk of cronyism. The mix turned out to be beneficial for the political parties, due in part to the strong proportional representation component of two-thirds of seats, but also to the bonus afforded to them by the compromise, which allowed party candidates to stand in the one-third of seats reserved for uninominal majority voting. It was to that end that Act No. 38 on the People’s Assembly was amended.

As well as reverting to a mixed voting system, the amendments to the Act also maintained the quota for workers’ and farmers’ representation at 50% of members of the People’s Assembly,92 with a different arrangement for the quota of women: 46 constituencies were assigned to list-based proportional voting to contest 322 seats (two-thirds of the 49 elected seats).93 Every list must include at least one woman, and half of the candidates must be workers or farmers.94 A threshold of 0.5% of votes cast was required in order to be able to aspire to parliamentary representation.95 The remaining one-third of seats, amounting (p. 442) to 166 seats, was filled by two-round uninominal majority voting, in 83 constituencies,96 whilst respecting the 50% rule for workers and farmers.

SCAF seemed to want to adapt the voting system to a new political reality characterized by a complex mesh of parties, by giving the parties that were standing a free hand to form coalitions and develop strategies, by putting forward independent candidates for uninominal voting and lists for the proportional representation seats. Although purportedly beneficial to the most structured political groups, in this case the Islamists and what was left of National Democratic Party, the system chosen presented opportunities for smaller political groupings forged in the excitement of the revolution, by means of the greatest remainder method. Moreover, the electoral divisions affirm this intention, in retaining fairly small constituencies that did not penalize the smaller political parties.97 It was in this way that compromise was reached between SCAF and the various electoral powers.

The representativeness of political sensitivities was not all that was at stake in the choice of voting system; other categories needed to be represented too. Thus, the non-Islamists defended proportional representation because it would have enabled the representation of women and minorities.98 Paradoxically, it was another kind of representativeness that was given priority, namely, that of the workers and farmers. Moreover, the system that was chosen unfortunately reduced the potential for proportional representation to represent women and minorities. In abandoning the women’s quota that had been reintroduced into the Egyptian system in 2007 and making do with the minimal requirement of having at least one woman on each list, the system that was chosen was incapable of ensuring a gender-balanced approach and was in all events far inferior to the Tunisian and Libyan models, which required lists to have gender parity, and for men and women to be listed in alternating order. As for the tendency for proportional representation to favor the representation of minorities, in this instance the Copts—that depended on parties feeling inclined to put them in a strong position on their lists. Since their sphere of influence is limited to Cairo and Alexandria, the Copts had little chance of winning seats elsewhere.99

Tangled up in a difficult transition process, SCAF opted to adapt a legislative provision charged with negative connotations. True, the provision was purged of the prominent elements of electoral manipulation, by re-establishing judicial control, but in terms of the voting system, the amendments did preserve some vestiges of the past, namely, the representation of workers and farmers, condemned as artificial, as well as ten appointed members of the People’s Assembly. As for the mixed system, this was a high-risk option, adopted by SCAF under the sword of Damocles of a ruling of unconstitutionality by the Supreme Constitutional Court, which had already dissolved the People’s Assembly twice, and, as we shall see, would indeed dissolve the People’s Assembly again in 2012.100

(p. 443) 3.  Libya

A mixed model was adopted in Libya too, under Art. 5 of the Libyan Electoral Act, but using a different formula: single-round majority voting for 120 seats and party-list proportional representation using the greatest remainder method to distribute the other 80 seats. For the proportional representation seats, Art. 15 requires that the lists must, under threat of being ruled void, respect the rule of vertical and horizontal alternation of candidates by gender.101 This was a revolutionary measure by the NTC, having abandoned a draft quota for women set at 10% of seats. In relation to the elections, electoral divisions on a geographical and demographic basis were adopted under Art. 4 of the Electoral Act.102 To remedy demographic disparities between the regions, 100 seats were allocated to Tripolitania (West), the most populous region, 60 to Cyrenaica (East), and 40 to Fazzān (South). This division was condemned by federalists in the east who perceived a flagrant inequality that brought back bad memories of the old regime’s centralist policy. In an attempt to appease the anger in this rebel region of Libya, which hinted at independence and had threatened to boycott the elections, the National Transitional Council announced—two days before the elections, on July 5, 2012—an amendment to Art. 30 of the Constitutional Declaration. From then on, the members of the constituent commission that was to appoint the members of Congress would be elected, and the 60 seats envisaged for that commission would be distributed equally between the three regions.103

In the end, the Libyan solution turned out to be a limited proportional system, bringing together proportional representation with the greatest remainder method for 80 seats, and majority voting using a single nontransferable vote. This system, classed as being a proportional system designed to represent minorities, is considered to be a majority vote with proportional effects.104 It has to be said, however, that the system can appear complicated.

Art. 6 of the Electoral Act stipulates that for the 120 seats allocated to majority voting, the candidate that has won the majority of votes shall be declared to have won in the uninominal constituencies. Although in some constituencies there are several seats to be filled, it will be a single nontransferable vote that will be used to separate the candidates. Under this system, each elector has a single vote regardless of how many seats there are to fill in a constituency. The winning candidates are elected on a pro-rata basis in relation to the number of these seats.105 The system is undeniably complex, but it is simple for voters, who need only vote for one candidate. The complexity of the system did not put candidates off from standing, nor the electorate from turning out to vote: Turnout was recorded at (p. 444) 62%, to choose between 2,501 independent candidates and 1,206 candidates standing in the list-based ballots.106

Between satisfaction and surprise, combing over the elections did reveal some flaws: wastage of votes, particularly under the Tunisian electoral system that encouraged the multiplication of lists107 and inequality between voters in the counting of the votes but also in the electoral weighting108 under the Libyan and Egyptian systems. But that observation aside, there is one question that needs answering: Are the three systems truly representative, as those that created them seem to claim?

A quick glance over the results of the parliamentary elections is enough to see that the electoral systems did meet the challenge, but to varying degrees. If we look at the first winners in each country, we can see that in Tunisia, proportional representation using the greatest remainder method allowed the Islamist movement al-Nahḍah to take home 41.02% of seats for 37.02% of votes, the Congress for the Republic 13.36% of seats for 8.69% of the votes, and the Democratic Forum for Labor and Liberties 9.22% of seats for 7.03% of votes. In Egypt, across the whole election (uninominal and plurinominal), the Freedom and Justice Party took 47.02% of seats for 37.5% of votes, the al-Nūr Party 24.6% of seats for 27.8% of votes, and the New Wafd Party 7.6% of seats for 9.2% of votes. In Libya, for the 80 seats filled by proportional representation, the National Forces Alliance was able to take 49% of the seats for 68% of the votes and the Justice and Construction Party, 21.3% of seats for 12% of votes.109

Truth be told, the disproportionality that can be seen between the number of votes and the number of seats is due, among other things, to the greatest remainder method adopted in all three countries. But was that battle not led by the small parties, like in Tunisia? Moreover, the “mathematical paradoxes”110 that characterize the greatest remainder method allowed some small parties, like Congress for the Republic (CPR), to win seats and join the government coalition. The whims of the greatest remainder method therefore shaped the Tunisian political regime during the transition period, having allowed CPR to become the second political force of the country with 352,825 votes. As well, only 7,000 votes allowed the Libyan coalition Wādī al-Ḥayāh to win two seats. Still in the context of Libya, there were other paradoxes and amplifications that could be seen: Due to the adoption of the single transferable vote for the 120 seats allocated for majority voting, it took 40,207 votes to win (p. 445) a seat in Benghāzī, whereas in the constituency of Ajdābiyā, a seat could be won with only 276 votes. This distortion was due to the high number of candidates and to poor turnout in that constituency.111

Reasonably fair and representative, what else would one want of a voting system? A “proportionalist” would want to see representation of a variety of political leanings, even at the expense of some distortion of opinion. But in any case, some degree of mismatch between the percentage of votes and the percentage of seats is inevitable, not just given the small dose of majority voting in Egypt and Libya but especially due to the rather “impure” proportional representation methods that were adopted: the division of constituencies and the method for redistributing the remainder.112 In the end, although proportional representation “is not such a true snapshot of opinion as its proponents claim”,113 it is certainly a truer representation than produced by majoritarian systems, which cause even bigger mismatches between the proportion of votes cast and the proportion of seats won.

So if the will of the electorate was accurately reflected, why the rhetoric of electoral surprise that characterized analysis of the results in all three countries? It was really the “divine surprise”.114 Whereas the electoral debate in the three countries had centered on the search for the magic formula that would make it possible to avoid an electoral landslide, and the potential for hegemony that went with that, this was paradoxically exactly what happened in Egypt, in favor of the Islamists. In Tunisia, the Islamist movement, with 41% of the seats in the NCA, was able to take the reins of the political game after the elections. In Libya, the “Libyan exception” that broke the rule needs to be put into context.115 Although out of the total of 80 seats allocated for voting by party list, the National Forces Alliance, the liberal coalition headed by Maḥmūd Jibrīl, was able to take 39 seats compared to only 17 for the Islamist Justice and Construction Party; it would seem that 80% of the (120) uninominal seats went to Islamist candidates among the conservative personalities and preachers of the mosques.116

In fact, by releasing fairly clear Islamist majorities in Tunisia and Egypt, and creating in Libya a confused landscape, with a rather liberal majority, the elections resulted in a strong bipolarization of political life: conservatives versus moderates. The resulting fission makes the last test that a fragile democracy must overcome even more complicated: the exercise of power.

(p. 446) IV.  Consolidating Democracy: The Ultimate Test of Exercising Power

Whereas in Egypt the results of the parliamentary elections were the prelude to a real institutional crisis that, despite a succession of electoral consultations, is still ongoing, and did not manage to appease tensions in the country, in Tunisia the results paved the way for an enormous quest for compromise. In Libya, the polarization of the GNC, grafted on top of other fault lines and adding to the prevailing security instability, produced a faltering power that had difficulties in asserting its authority. These characteristics were confirmed in the exercise of power during the transition period (Section A), but also apply to the exercise of constituent power (Section B).

A.  Majorities Put to the Test by the Exercise of Transitional Power

The functions of the elected assemblies varied in scope. The Egyptian parliament was primarily restricted to selecting the members of the Constituent Assembly,117 but the Tunisian and Libyan assemblies were elected to appoint and oversee a cabinet as well as draft the new constitution. With an omnipotent assembly, enjoying electoral legitimacy and superior to the government that came from it, the Tunisian NCA and the Libyan GNC embodied “the principle of government by assembly (namely) that the government and the parliament cannot, and consequently should not, be equal authorities, either in law nor in fact”.118 This is what explains why the instruments regulating the transitional authority do not include the power to dissolve the assembly normally afforded to the executive.

In addition to the constituent mandate, the electoral systems were designed to elect assemblies that were representative, so as to ensure the investiture of a governing elite that would, until the end of the transition period, embody electoral legitimacy, and ensure a stable transition toward democracy. The voting systems that were adopted, left open the option of a consensus deal, and were intended to pave the way not for competition and rivalry, but for collaboration, especially given the fragile context of transition.119 So the first few months in which authority was exercised by the majorities chosen at the ballot box were rather a mixed bag, with government crises in Tunisia, institutional paralysis in Libya, and an institutional quarrel in Egypt.

1.  Tunisia

In Tunisia, the camps organized themselves ready to govern as soon as the results of the elections were declared. In this respect, the need to weave government coalitions after elections by proportional representation is a “pons asinorum” of political regimes. But in Tunisia it is in the management of the coalition that the shoe pinches. The relative majority won by the al-Nahḍah Party, insufficient for it to be able to govern alone, prompted it to forge a coalition with the two parties that followed it. A tripartite coalition, or what the Tunisians liked to call the “Troïka”, emerged. Decried as an unnatural alliance (a social-democrat party, a party of the center-left, and an Islamist party), the coalition was also described as a fallacious alliance, in the light of the legal regime that had established it.

(p. 447) This is indeed the prototype of an “unequal alliance”,120 with the al-Nahḍah Party dominating and the other parties revolving around it. The heated debates that animated public opinion during the discussions on the bill that established provisional organization of the authorities who would determine the rules of the game during the transition period show, however, the battle the two allies fought in order to bring the scales back into balance. Last, the “little constitution”,121 established an unstable three-legged authority, and the bribes for power that had been let out, drop by drop, by the party with the relative majority were nothing but feeble concessions to its allies. The three-legged power is embodied by three presidencies, shared between the leaders of the three parties: President of the Republic from CPR, President of the National Constituent Assembly from the Forum, and as head of government, none other than the secretary general of the al-Nahḍah Party. The powers of the president of the National Constituent Assembly are limited to the exercise of certain constitutional prerogatives,122 the President of the Republic is reduced to an honorary role,123 and the head of government becomes the axis of the political system during the transition period,124 leaving open the specter of the concentration of powers thought gone. True, the law does provide for mechanisms of government control by the National Constituent Assembly, the repository of constituent power and the sole holder of the legislative function and the function of control over the government that it established, which it has the power to sack by means of an absolute majority. However, the majority has arranged matters so that it is able to pull the strings, by requiring the President of the Republic, under Art. 15, to task the candidate of the party that has won the highest number of seats in the National Constituent Assembly with forming the government.

In sealing a union between parties of very different allegiances, the coalition fell victim to several crises, revealing the fragility of the compromise and the flaws in its coordination. The Gordian knot of the crisis was the attempt by the party with the relative majority to get its hands on the machinery of the state (departments, public enterprises …). This hegemony, having been condemned by the opposition, eventually made the other parties of the coalition unhappy, who threatened more than once to break it up. During the months of January and February 2013 a profound political crisis swept the country, and the (p. 448) compromise of a ministerial reshuffle to break up the majority party’s grip on power over the state seemed impossible. The three parties entered into interminable talks,125 before convening a new coalition government, once again presided over by the al-Nahḍah Party, but with neutralization of the ministries of sovereignty (defense, interior, foreign affairs, and justice).

It must be said that the coalition could have averted both the crisis that it went through and the virulence of the opposition, which was accused of practicing a policy of obstruction. The coalition remains nonetheless fragile and the hegemony of the Islamist party is still blown out of proportion. The parties of CPR and the Forum, allied to the party with the relative majority, are subject to internal crises and disputes, constantly accused of betraying the secular thinking they claim to support by having entered into an absurd coalition. Yet in the eyes of its defenders, this kind of conservative/moderate coalition is unavoidable and is the only way of responding to the post-revolutionary political offer and creating a barrier against authoritarian drift.

2.  Libya

Rather than a governmental crisis, what Libya went through after the establishment of the General National Congress was a true institutional crisis, typical of multiparty parliamentary regimes. The problem was that according to the institutional design outlined in the Constitutional Declaration and the interior regulations developed by the General National Congress, the government was supposed to come out of the General National Congress. The resulting organization of powers in fact created a confusion of powers, borrowing from assembly regimes the superiority of Congress, which, according to Art. 1 of the internal regulations, embodied “the supreme power in Libya, tasked with exercising the prerogatives of supreme sovereignty, including legislative power, control, and the elaboration of the general policy of the state and is the only representative of the Libya people”. Congress is therefore the driving force, whose dominance is also visible in its power of control over the executive, the members of which it appoints and repeals by absolute majority of the members.126 Moreover, the executive is single-headed, having only the head of government above it. There is no counterbalance to the GNC’s powers by way of a power of dissolution. That makes it “a parliamentary regime minus the dissolution” that has been established, in a model not unlike the one in Tunisia.

The internal dynamic within Congress, which includes a well-organized Islamic movement127 under the leadership of the Justice and Construction Party, means that every decision is subject to the law of compromise, unavoidable in proportionalist regimes, which is how the Libyan regime can, with reservations, be characterized. The first challenge of appointing a head of government after the elections proved monumental. It reveals that the head of the liberal coalition, despite being majoritarian, was unable to become elected by the GNC in order to form the first government. We should also clarify that the reason this was so difficult is not just tensions with the Islamists but also the need for it to be composed (p. 449) of the various interest groups in Libya and to appease the centrifugal tendencies of certain regions. These considerations were omnipresent in the negotiations and explain the difficulty in forming the first government. In fact, the independent technocrat Abū Shāqūr, who was elected head of government on September 12, with the support of the Justice and Construction Party, ended up being ousted after an unexpected rapprochement between the National Forces Alliance and the Islamist Party. This unexpected rapprochement between two blocks determined to lead a government of national unity that represented all the regions and the various political leanings motivated the rejection of two government lists proposed by Abū Shāqūr.128 Ministerial portfolios consequently had to be distributed, not so much on the basis of political affiliation as was the case in Tunisia, but on the basis of regional considerations.

In other words, the conservative/moderate split produced by the ballot boxes in Libya was not enough to enlighten the dynamic of the exercise of power in Libya. This split was grafted on top of other fault lines, regionalist ones as it happens. The Libyan example demonstrates the difficulties inherent with governments of national unity under proportionalist systems. Moreover, some months after the establishment of the new government headed by ʿAlī Zaydān, the Justice and Construction Party, having obtained only 5 of 33 ministerial portfolios, condemned the hegemony of the liberal movement in the government, and brandishing a map for retreat.129

3.  Egypt

In the test of the exercise of power, the majorities in Tunisia as well as in Libya, for different reasons, seem to have been forced to seek a compromise. In Egypt, a completely different scenario has come about, casting the Egyptian political system into an institutional quagmire after the election of the People’s Assembly. The Egyptian paradox is that the challenge to power is increasing exponentially with every successive electoral consultation.130

It is true that it was the Islamist/liberal rift that created the tidal wave that destroyed the elected People’s Assembly. The People’s Assembly was embroiled in a battle between the Muslim Brotherhood and SCAF. In the course of their open conflict, exacerbated by the presidential elections, it was the People’s Assembly that was dissolved, hugely muddying the political waters. That is where we found ourselves in December 2012, with a referendum on the text of a constitution developed by a flawed constituent, among other things because its members had been elected by a People’s Assembly that the Supreme Constitutional Court had ruled unconstitutional. Indeed, the Supreme Constitutional Court found itself at the center of the institutional conflict131 that pitted the Islamists against SCAF, when it was their alliance that would have made it possible to map out the transition with the referendum of March 11, 2011, and the adoption of the voting system. Yet the strong majority won by the Islamists led them to put forward a candidate to the presidential elections, repudiating the original agreement set out in the Constitutional Declaration of March 30, 2011. (p. 450) Shady deals between the Islamists and SCAF, reported by several other analyses,132 go some way toward explaining SCAF’s U-turn the day before the second round of the presidential elections. In any event, its position in the open dispute with the Islamists was supported by the ruling handed down by the Supreme Constitutional Court on June 14, 2012, which rendered a third of the People’s Assembly invalid.133

In fact, following referral by the Council of State, the Supreme Constitutional Court was faced with a prejudicial question as to the constitutionality of the electoral law, that allowed political parties to compete in the elections by list for up to the maximum of two-thirds of the seats of the People’s Assembly, and also to put forward candidates for the uninominal voting, for the remaining one-third of seats, where they could compete through individual candidates. In affirming this to be discriminatory against independents, who could not compete in the uninominal elections and did not enjoy the same financial and moral support as was provided to party candidates, the Supreme Constitutional Court not only declared the provisions of the electoral law to be unconstitutional in this regard but also declared invalid the composition of the entire People’s Assembly, since it had been elected on the basis of a law that was unconstitutional. The court took the view that the organization of the party lists for the two-thirds would have been different if the electoral law had not allowed members of the parties to put forward candidates for the one-third of seats allocated for uninominal voting. Since the flaw of unconstitutionality affected the electoral law as a whole, the court ruled for the complete dissolution of the People’s Assembly and without the need for a specific measure, as the ruling of unconstitutionality had the force of res judicata and was binding on the state authorities.

The invalidation of the elections of the People’s Assembly by the Supreme Constitutional Court was not without precedent. In fact, the court was merely upholding its own jurisprudence, having in 1987134 and again in 1990135 struck down the Electoral Act as unconstitutional on the same grounds of inequality of opportunity between party and independent candidates. The court was therefore merely reinforcing its earlier jurisprudence and confirming the “juridification”136 of the electoral debate that it had initiated with its 1987 decision. That being so, its decision aggravated the climate of suspicion between the Muslim Brotherhood and the judicial body, accused of collusion with SCAF—suspicions that were stirred up again by another decision by the Supreme Constitutional Court declaring the law on political ostracism unconstitutional, making it possible to validate the candidacy of Aḥmad Shafīq.137

By dissolving the People’s Assembly, the Supreme Constitutional Court had crossed the Rubicon, jeopardizing its own authority. The decision was indeed followed by a stream of forceful protests by the newly elected president, Muḥammad Mursī. On July 8, 2012, he initially annulled the decree adopted by SCAF annulling the People’s Assembly. The General Assembly of the Supreme Constitutional Court therefore convened as a matter of urgency and decided to stop the execution of the presidential decision, on the grounds that (p. 451) it constituted a material obstacle to implementation of the court’s ruling on the invalidity of the entire People’s Assembly, a decision confirmed on July 17, 2012, by the Council of State that heard appeals against the presidential decree.138 Of course, in the end President Mursī did comply by declaring that the Assembly would indeed be dissolved out of respect for the Rule of Law. Yet the People’s Assembly survived, de facto, after its dissolution, as it had contributed to the appointment of the members of the Constituent.

In the end, although the various actors in Tunisia and Libya did manage, after a fashion, to achieve compromise, this seems impossible in Egypt, where there are very strong tensions between the majority and the opposition, by means of a proxy. Displays of strength by one side and the other have continued regardless, with the chief consequence of disrupting the institutional game, and very often the instrumentalization of, even disregard for, the law.

B.  Majorities Face the Test of the Exercise of Constituent Power

“The constitution is not about the majority”, could be read on placards held aloft by Egyptian protestors during one of the periods of dissent in Egypt. The phrase is so simple and sums up so well the misgivings that are felt with equal force in Tunisia. It is the Gordian knot of the constituent process, which has been generally permeated by the results of the elections. True, the speed of the process was not the same in all three countries. At the time of writing, the Egyptian Constitution is already promulgated, the Tunisian Constitution is in the third draft stage,139 and the Libyan Constitution is still far off on the horizon. But a constitutional debate has been launched, allowing us to consider what the majorities produced by the ballot boxes have, in the grip of the hubris of power, made of the process of elaborating constitutions (Sub-section 1) and their substance (Sub-section 2).

1.  The Elaboration of Constitutions: A Process “Peppered” with Uncertainties

In Tunisia, which was blessed with the least turbulent transition process, the majority set out to reproduce the balance of political power in the composition of the permanent legislative and constituent commissions tasked with redrafting the constitution.140 Of the 22 members of each commission, 9 belonged to the al-Nahḍah Party, which had the relative majority. Given the composition of the commissions and of the mode of decision making,141 we understand that the majority party was able to weigh in heavily in the preparation of the draft constitution, although resistance by the opposition and the mobilization of civil society did prompt them to give way on several issues.

The question about the method of taking decisions is most frequently asked about the method of adopting the constitution. In this respect, the majority initially proposed that the constitution be adopted by absolute majority, article by article, and by a two-thirds majority for the draft constitution as a whole—a proposal strongly criticized by an opposition that perceived this to be an attempt by the majority party to dominate the constituent process. The heated debate on this issue, during the negotiations on the bill on the provisional organization of powers, resulted in a compromise that consisted of recourse to a referendum, but only as a third hypothesis: The project had first to be adopted, article by article, by an absolute majority of members of the National Constituent Assembly; the (p. 452) text adopted in this way then had to be adopted as a whole, by a two-thirds majority; if that did not happen, a second reading of the draft was required within a month, in order that it might be adopted by the same majority. If the draft still did not pass, it would be put to popular referendum for adoption by the majority of the electorate.142

In Libya, the method of appointing the constituent committee was determined in an atmosphere that was a long way from consensus. Art. 30 of the Constitutional Declaration, which set out the road map for transition and the political nature of the transitional authority, was revised several times in line with political contingencies. Having initially provided in paragraph 6 for a Constituent Committee to be chosen by the General National Congress to prepare a draft constitution that it must approve, before being put to a referendum, this article was first revised on March 13, 2012, by the National Transitional Council to strip Congress of its constituent prerogative,143 with Art. 30 (6) henceforth providing for the appointment by the General National Congress, from outside its membership, of a Constituent Committee composed of 60 members following the model of the Committee of 60 that had been created to draw up the 1951 Constitution.144 On the eve of the elections of July 7, 2012, the Transitional Council had to revise Art. 30 once again, in order to appease complaints by the Federalists of Barqah, who had brought the oil terminals to a standstill and were threatening to disrupt the electoral process if their main demand was not met, namely, equal representation of the three regions of the country.

The newly elected Congress went back to look at the question again, and after having tasked a special committee with leading a national dialogue on the method of appointing the Constituent Committee, it then interrupted that consultation process and decided on February 6, 2013, by a majority of 87 of the 97 members present, to ratify direct election, thus endorsing Constitutional Act No. 3 adopted by the National Transitional Council and retaining for itself the right to accept or reject the draft developed by the Constituent Committee.145 The constitutional difficulties and controversies continued with an appeal against that act before the Constitutional Chamber of the Libyan Supreme Court. The court declared itself competent to control constitutional laws and judged that the revision had been adopted by a majority of two-thirds of those present in violation of Art. 36 of the Constitutional Declaration that required a majority of two-thirds of members.146

In declaring the decision by Congress invalid, the court thwarted the National Transitional Council’s announcement of the indirect election of the 60 members of the Constituent Committee. This enterprise would without a doubt have been strewn with obstacles and would have exacerbated the wind of discontent blowing from the south and the east. The Federalists had always expressed their fears that indirect selection by Congress would disadvantage the regions of Fazzān and Barqah, and enshrine once again the hegemony of Tripoli,147 which (as already mentioned) kept for itself 100 out of the 200 seats in Congress.

(p. 453) It therefore seems strange that the 1951 Federal Constitution should be at the heart of an impassioned debate between those who favored it as the starting point for a legal framework and those who rejected it. The first camp is represented by the alliance of liberal forces that were victorious in the elections, the second by the Supreme Council of Revolutionaries, who claimed in the name of revolutionary legitimacy a right to influence in political life and the perennialization of the state of revolution.148 The crisis over the method of appointment has emphasized the fault lines that fracture Congress. As well as a degree of bipolarization between the Islamists and the Liberals, regional, tribal, and military interest groups weighed in heavily on the political chess board, as already revealed by the negotiations about the composition of the government. The balancing act seemed difficult and choosing a method of appointment for the Constituent Committee proved intractable; eventually Congress gave in and endorsed direct election.149

In Egypt, the only trace that remains of the dissolved People’s Assembly is the Constituent Assembly that had developed the draft constitution that was put to a referendum. The long ups and downs that punctuated its short history speak volumes about the lack of consensus. Under Art. 60 of the Constitutional Declaration of March 30, 2011, the 100 members of the Constituent had to be chosen by the elected members of the two chambers of parliament. The silence of the Constitutional Declaration on the criteria for selection opened up a dispute between the military and the Muslim Brotherhood, jostling to control its composition, resulting in a web of court appeals, legal documents and political compromises that was difficult to untangle. In their session of March 17, 2012, the two assemblies decided to choose half the members of the Constituent from within parliament,150 clearly subverting the wording of the Declaration and opening the way for the hegemony of the Islamist parties, who had a clear majority within the Parliamentary Assembly and the Senate. This maneuver was decried by the liberal parties and the parties of the left who had not taken part in the vote. A claim was filed before the Council of State by a coalition of lawyers and liberal political parties asserting that the composition of the Constituent was unconstitutional. In a decision handed down on April 10, 2012, Cairo’s Administrative Judicial Court of the Council of State decided to suspend the Constituent, as the Constitutional Declaration had mandated parliament to elect the members of the Constituent, not to choose them from within its own members.151

The crisis thus apparently averted, a new composition for the Constituent had to be agreed upon. An agreement was reached between the representatives of the political parties, notably the Islamists, and SCAF, on a composition more representative of the various sensitivities.152 It was also agreed that decisions within the Constituent would be adopted by a majority of 67% of its members, probably to prevent the hegemony of the Islamists. The general terms of this agreement were set down in a bill adopted by the People’s Assembly (p. 454) on June 12, 2012, and its members were indeed elected at a joint meeting of the People’s Assembly and the Senate on June 13, 2012. Except that SCAF did not promulgate the law in accordance with Art. 56 (5) of the Constitutional Declaration of March 30, 2011,153 preferring to publish an addendum to the Constitutional Declaration establishing the right to form a new Constituent if the current body is prevented from completing its work. In the escalation of the battle with SCAF, President Mursī promulgated Act No. 79 on the selection criteria for members of the Constituent,154 adopted by a People’s Assembly that had just been declared to be unconstitutional! A jurisdictional battle ensued and an appeal was lodged with the Council of State against the decision on the composition of the Constituent Assembly adopted by the People’s Assembly and the Senate on the grounds that it violated the ruling by the Council of State handed down April 10, 2012, prohibiting parliamentarians from belonging to the Constituent, whereas the second Constituent included members of the Senate and of the dissolved People’s Assembly. The Administrative Judiciary Court of the Council of State was obliged in its judgment of October 23, 2012, to defer its ruling and refer the constitutional question to the Supreme Constitutional Court.155

The withdrawal of representatives of the opposition and of the church from November 13, 2012, refusing to endorse a draft Islamist constitution, in effect amounted to a new appeal against the Constituent. The president therefore had to adopt a new Constitutional Declaration on November 21, 2012, in which he, among other things, immunized the Senate and the Constituent Assembly against any jurisdictional claim attempting to dissolve them. That Declaration strengthening the prerogatives of the president, which also put all presidential decrees beyond all judicial recourse,156 opened a new round of very violent disputes. In the whirl of bloody confrontations between supporters and opponents of President Mursī, the opposition called for the referendum process to be interrupted. To appease the toxic atmosphere, President Mursī was obliged to annul the Declaration of November 2012, whilst maintaining its effects,157 and the constitution was put to a referendum.

With a poor turnout (32.9%), the draft constitution put to a referendum on December 15 and 22, 2012, was approved by 63.8% of voters.158 The Egyptian referendum had not appeased the simmering conflicts in Egypt and the losing minority discredited the process.159 The legitimacy of the popular verdict was not enough to achieve compromise,160 which laid the foundations for subsequent conflicts in the country.

(p. 455) The main point of convergence between the three countries is the constant challenging of the legitimacy of the elected assemblies, despite the “original regularity”161 drawn from the election. The reasons are manifold: failure to respect the preexisting schedule in Tunisia, the vacillations of the General National Congress under pressure from the various actors of transition in Libya, and the insistence by the Islamists—who had been victorious in the legislative elections in Egypt—that the composition of the Constituent should reflect the composition of the parliament that had been elected by universal suffrage. Nonetheless, all this brings us back to the ontological question of democracy: Can one rely on the legality of instruments in order to do whatever one wants? That would be, as Pasquale Pasquino puts it, a “suicide pact of total alienation in favor of the majority”,162 who must not be allowed to “decide everything about everything”,163 especially when it comes to establishing a constitution.

2.  Constitutional Debates Characterized by Points of Tension

One tension point in the constitutional debate in Egypt and Tunisia, and less so in Libya, seemed to be the question of the constitution as a secular instrument, with Islamist parties being well placed to impose a constitution permeated by religiosity. In Tunisia, this was about the Sharīʿah as the source of law, about male/female equality, and freedom of expression versus respect for that which is sacred. The same tension points could be detected in the Egyptian constitutional debate, which resulted in an instrument elaborated by a Constituent that was boycotted by the liberals, and there are indications of a similar preoccupation in Libya, although the rhythm of the constituent process there is working at a different speed.

On the first point of tension, namely, the Sharīʿah as the source of the law, Tunisian public opinion was animated by a very passionate debate on this issue, on the basis of a draft constitution that clearly emanated from the party with the relative majority, al-Nahḍah, presented around March 2012, Art. 10 of which provided that the Sharīʿah would be one of the main sources of legislation and for the creation of a “High Sharīʿah Council” to verify the conformity of laws with Sharīʿah. A large protest held on March 20, 2012, voiced participants’ visceral rejection of the rampant Islamization of society, which eventually dissuaded the majority party, who announced the withdrawal of the Sharīʿah draft on March 25. In the end, Art. 1 of the former 1959 Constitution was preserved, being judged sufficient to affirm the presence of Islam in the constitution.164 That article provides that “Tunisia shall be a free, independent and sovereign state, its religion shall be Islam, its language Arabic and its regime a republic”.

Interpreted as being a formulation of identity with no normative value,165 Art. 1 constitutes a compromise that satisfies “all the contradictory demands and leaves the real sticking points unresolved, thanks to its ambiguous wording”.166 Although a decision on the (p. 456) religious anchoring of the Tunisian state has been suspended for more than 50 years, a rigid interpretation cannot now be excluded. Especially as, unlike the 1959 Constitution, which was only weakly religious in tone,167 the third draft makes reference to Islam not only in the preamble, talking of “constants of Islam” but also by prohibiting in Art. 136 any constitutional revision attacking “Islam as religion of the State”. The wording contains worrying ambiguities, and the redundant reference to the civic nature of the state168 does little to dispel this.169 And just what are the “constants of Islam”? The reference to “its values characterized by openness and tolerance”, although pointing toward a final reading that is contrary to a rigid interpretation of Islam, seems misplaced, given that these constants are not specified. Moreover, the writers of the third draft were at pains to confirm that the preamble is an integral part of the constitution and “has the same value as (its) other provisions” in terms of Art. 138, which could, gradually, reduce everything to these “constants of Islam”. Moreover, whereas the second draft of the preamble made reference only to the principles of human rights, the “universality of human rights” was in the end included in the third draft, but “in conformity with the cultural specificities of the Tunisian people [sic!]”. This formula sounds like an oxymoron. It is for the least ambivalent and threatens to block the improvement of women’s legal status in Tunisia. As it stands, cultural relativism could be invoked to oppose the reception of international instruments related to women’s rights.170

The Egyptian Constitution went much further than this in its religious anchoring of the state. Indeed, Art. 2 provides not only that “Islam shall be the religion of the State”,171 but adds, without equivocation that “the principles of Islamic Sharīʿah shall be the main source of legislation”, principles comprising according to Art. 219 “its global evidence, fundamentalist and jurisprudential basis, as well as the significant sources, in the legal schools of the people in the tradition of the prophet and of the community”. A reference that could lead to a rigid interpretation of Islam. The text also makes reference to Al-Azhar, the prestigious Islamic authority, which “proceeds to the propagation of the Islamic predication, theological sciences, the Arabic language in Egypt and in the world. The opinion of the authority of the great ʿulamāʾ (Islamic scholars) of the Al-Azhar University in Cairo shall be taken in matters relating to Islamic Sharīʿah” (Art. 4). A reading of Arts. 2 and 4 taken together makes this religious authority the ultimate source of the law, accelerating fast toward the institution of a theocratic state. Whilst on the one hand being long-winded in listing rights and freedoms, with the other, the constitution established a hierarchy of rights, by, under Art. 81, making the exercise of those rights subject to respect for the principles set out in the chapter “the State and Society”, which covered among other things the reference to Sharīʿah.

In Libya, the question of Sharīʿah seems to have been resolved immediately after Libya’s declaration of independence. Indeed, on October 23, 2011, Muṣṭafā ʿAbd al-Jalīl, then president of the NTC, declared that the Sharīʿah would be the source of the law. Furthermore, (p. 457) the issue seems to be a matter of consensus among the political powers represented in the GNC.

In the same spirit, the status of women is a second point of tension in the constitutional debate. This is true even in Tunisia, although it had led the way on the emancipation of women, thanks among other things to the Code on the Status of the Individual adopted by Bourguiba (Būrqība). The fear that those rights might be rescinded was aroused by Art. 28 in the first draft, which rendered women “an authentic partner, with man, in the construction of the country and through their complementary roles within the family”. This complimentary notion, putting women back into an inferior status, was virulently rejected by civil society, and was in the end abandoned172 and replaced with a more satisfactory wording, by the provision in Art. 11 of the third draft, that “woman and man shall be partners in the construction of society and the State”. Male/female equality is not perfect however. Although it is true that equality before the law is enshrined in Art. 6 and that the state guarantees, under Art. 41 (1), “the protection of women’s rights and the strengthening of the acquis”, Art. 41 (2) adds that “the State shall guarantee equality of opportunity between women and men to assume various responsibilities” and paragraph 3 added that “the State guarantees the elimination of all forms of violence against women”. With a sense that it has been deliberately left unfinished, the drafters do not mention the elimination of all forms of discrimination against women. It is only clear that the equality of men and women will be appreciated in terms of the “constants of Islam”, and the universal standards of human rights shaped by cultural relativism. And moreover, parity was not written into the third draft of the constitution, despite strong mobilization in support of this.

Male/female equality seems to have been further undermined in the Egyptian Constitution. Even though Art. 33 does provide that “citizens shall be equal before the law” and that they “have the same rights and the same general responsibilities, without distinction between them”. Nonetheless, this equality is often threatened, not only by Art. 2 that makes the Sharīʿah the main source of the law but also by Art. 10 (3), which tasks the state with “reconciliation of the responsibilities of a woman towards her family and her public activity”. Women are purely and simply under the guardianship of the state and the laws that will decide the manner in which she must manage her private life. In Libya, too, there is a risk that a lower status for women will be enshrined, given the Constitutional Declaration that, despite declaring equality before the law in Art. 6, associates this in Art. 5 with children, elderly people, and other vulnerable categories. Regardless of what becomes of this, the future status of women under the constitution remains uncertain, and given a recent judgment by the Constitutional Chamber of the Supreme Court lifting the restrictions on polygamy that had been introduced by al-Qadhdhāfī,173 one might legitimately fear a regression in women’s rights.

Last, let’s consider the third point of tension in the constitutional debates, namely, the place of “that which is sacred”. The criminalization of attacks on that which is sacred found its way into the first draft of the Tunisian Constitution in an article that provided “the State shall guarantee freedom of religious belief and practice and punish any attack against the sacred values of religion. In the end, the article was abandoned, but protection of the sacred retained a strong position in Art. 5 of the third draft, which provides that “the State shall protect religion; it shall be the guarantor of freedom of religion and the exercise of worship, protector of the sacred and guarantor of the neutrality of places of worship from party propaganda”. This leaves wide open the potential for curtailing freedom of expression. In Egypt, (p. 458) in addition to a rigid interpretation of Art. 11 that tasks the state with watching over “the mores, morality, public order, […] religious values”, Art. 44 prohibits “any denigration or defamation of any of the messengers and the prophets”.

The issues mentioned above are not the only points of tension in the constitutional debate. At the time of writing, Tunisia is still locked in negotiations between the majority party and the other political powers represented within its National Constituent Assembly as to the nature of the political regime. As for Libya, it is on the breach of engaging a vivid debate on the State form. In Egypt, the jury is still out, in spite of the promulgation of a constitution which seems unable to carry out the democratic transition. Completed in 2013, this comparative study of the electoral systems in Tunisia, Egypt, and Libya has been conducted in the context of bewildering—sometimes striking—political and legal developments. However, in Tunisia, the constituents have managed to consensually adopt a new constitution,174 and the shift of power in the parliamentary elections of October 26, 2014, has seen a democratic and peaceful transition of government in Tunisia from the formerly ruling, moderate Islamist al-Nahḍah Party to the secularist Nidāʾ Tūnis Party.175 As the transition of government and political authority from one party to another, can be seen as one of the most crucial tests and milestones in the establishment of viable democracies, the results have sealed Tunisians fortunate and successful leading role in the democratic process that started with the Arab spring. A mere month later, Tunisia conducted the first free presidential election ever since its independence in 1956. After the first round of elections yielded no definite majority for any one candidate, the second round showed that the candidate of the Nidāʾ Tūnis Party, Aa-Bājī Qāʾid al-Sabsī, had won a majority over the incumbent al-Munṣif al-Marzūqī.176 In a period just shy of three months, Tunisia thus faced a democratic and peaceful transition of power in both parliament and the office of the president. Unfortunately, the other countries researched in this article faced a more tumultuous and dramatic interruption of their democratic development.

Libya from the start faced huge security challenges and the need to consolidate its still embryonic institutions; the task was much more difficult, with political decisions often adopted in a Congress besieged by militia.177 While, after a months’ long struggle, a cabinet could be reached under Prime Minister ʿAlī Zaydān, public unrest and discontentment with his administration grew, ultimately leading to him being replaced by ʿAbdullāh al-Thānī. The election for the Council of Deputies on June 25, 2014—which was to replace the General National Congress as the new legislative authority—brought a disappointing outcome to Islamist candidates and instead saw nationalist and liberal candidates garner the majority of the seats. As the election was marred by violence and generally produced a low turnout, the losing political fractions declared the continuation of their mandates in the new General National Congress and thus ignored the election results and the authority of the newly established Council of Deputies. The representatives of the Council of Deputies viewed (p. 459) this as a coup d’etat and shifted their seat to the city of Ṭubruq, away from the outbreak of even more sectarian violence and street fighting which broke out in the streets of the capital of Tripoli.178 The subsequent event brought almost all the achievements of the previous months to naught. While the Islamist-led General National Congress managed to reassert its control over the capital and large parts of the region of Tripolitana, several cities of the area (including Darnah and Sirt) fell to the onslaught of jihādī groups, such as the Islamic State and Anṣār al-Sharīʿah. An additional uprising by Touareg groups in the Southwest, removed also the region of Fazzān largely from central authority. The internationally recognized government around the Council of Deputies with its seat in Ṭubruq, thus exercised effective control over little more than the Eastern part with violent uprising and sectarianism prevalent in most areas of the country. The foreseeable future of Libya’s democratic process can therefore only be called discouraging.

In Egypt, the situation had become increasingly volatile following the draft Constitution of 2012, which was seen by many as giving too much power to the presidency. Finally, a mere year after the election of President Mursī on the June 30, 2013, people took to the streets in unprecedented numbers to express their discontentment with the economic and political development of the country and with what they perceived as a clandestine Islamization of both political and public life in Egypt. As the death toll and the number of protesters rose over the following day, the Egyptian Army gave the president a 48-hour ultimatum to restore order.179 As on July 3, the widespread protests showed no sign of abating, the head of the armed forces, ʿAbd al-Fattāḥ al-Sīsī, declared the deposition of President Mursī and the suspension of the constitution. The interim-government, under the former Chief Justice of the Supreme Constitutional Court, ʿAdlī Maḥmūd Manṣūr, was charged with drafting a new constitution, which was approved by a majority of 98.1% in a referendum on January 14 and 15, 2014, which was also raised concerns about the low turnout of just 38.6% and various irregularities.180 The head of the armed forces, General ʿAbd al-Fattāḥ al-Sīsī, subsequently declared his decision to lay down his military command and run as a candidate for the presidential elections. In spite of the landslide victory he managed to garner, the low turnout of 46% and the call for boycott of the elections by various political and social groups proved yet another disconcerting factor in Egypt’s recent development.181

In spite of the similarities the countries have shown in the beginning of their struggle for a democratic state under the rule of the law and the similar obstacles they faced along the way, the outcome of the process could hardly be more different. With Libya being torn apart by sectarian violence, jihādī and tribal uprisings, and two separate national governments which show no signs of will to compromise; with Egypt on the one hand stabilized from month-long protests and public unrest and rid of a government which was seen as a threat to its secular society, but on the other hand at least on the road of an authoritarian, army-backed, presidential regime, not entirely unlike the Mubārak era; and finally Tunisia, which proved its position as a role model for democratization and peaceful transition in the Arab world by not only integrating Islamist groups in its political makeup, but also managing a peaceful, democratic transition of power in two subsequent elections.(p. 460)


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.

7  See P. Pasquino, “Le principe de majorité: nature et limites” la vie des idées, http://www.laviedesidees.fr/IMG/pdf/20101214_principe_de_majorite_.pdf, accessed May 4, 2015.

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.

12  A. Reynolds and B. Reilly, Electoral System Design: The International IDEA Handbook (2002) 7, http://www.idea.int/publications/esd/upload/ESD_French_full_book.pdf, accessed May 4, 2015, available in English in a revised version at http://www.idea.int/publications/esd/index.cfm, accessed May 4, 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).

25  “Administration électorale et Monde arabe: Expériences comparées” (April 2011) UNDP 6, http://www.undp.org/content/dam/undp/library/Democratic%20Governance/ELECTORAL_ADMINISTRATION_ARAB_WORLD_EN.pdf, accessed May 4, 2015.

26  See Part III. Section A. 1, below.

27  Id. (n 22).

28  “Administration électorale et Monde arabe” (n 25); Gestion électorale, un aperçu du guide d’International IDEA (2008), http://www.idea.int/publications/emd/overview_fr.cfm, accessed March 23, 2016.

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.

38  See Art. 2 of the application circular of the Act on the exercise of political rights, Electoral High Commission, Decision No. 1 of 2011, http://www.elections2011.eg/images/Laws/lae7a.pdf, accessed May 4, 2015.

39  “Final Report of the Carter Center Mission to Witness the 2011–2012 Parliamentary Elections in Egypt,” Carter Center (2012), http://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/egypt-2011-2012-final-rpt.pdf28, accessed May 4, 2015.

40  See, for example, Decree-Law No.130 of 2011 on voting by Egyptians abroad, adopted by SCAF (November 19, 2011), http://www.elections2011.eg/images/Laws/out-of-country-voting.pdf, accessed May 4, 2015.

41  “Preliminary statement, Historic elections lay foundation for democratic development of Libya” (Tripoli, July 9, 2012) European Union Election Assessment Team, http://eeas.europa.eu/eueom/missions/2012/libya/reports_en.htm3, accessed May 4, 2015.

42  ISIE, “Rapport relatif au déroulement des élections de l’Assemblée Nationale Constituante” (February 2012) 40–50, http://www.isie.tn/Fr/le-rapport-de-lisie_11_158. Unofficial French translation of the original Arabic found here: http://aceproject.org/ero-en/regions/africa/TN/tunisie-rapport-relatif-au-deroulement-des, accessed May 4, 2015.

43  D. Petit, “Analyse du cadre juridique. Election du 23 octobre 2011 de l’Assemblée Nationale Constituante” Tunisian Republic, International Foundation for Electoral Systems (IFES) (February 2012), http://www.ifes.org/~/media/Files/Publications/Reports/2012/Legal_Framework_Assessment_French.pdf64, accessed May 4, 2015.

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.

50  Art. 1 of Act No. 2 of 2012 on the prohibition of partisan activity, available on the website of the National Transitional Council, http://www.ntc.gov.ly/index.php?option=com_k2&view=itemlist&layout=category&task=category&id=4&Itemid=17, accessed May 4, 2015 (in Arabic).

51  Act No. 29 of 2012 on the organization of political parties (May 2, 2012), available on the website of the National Transitional Council, http://www.ntc.gov.ly/index.php?option=com_k2&view=itemlist&layout=category&task=category&id=4&Itemid=17, accessed May 4, 2015 (in Arabic).

52  Arts. 17, 18, 19, 20, 23, 24, 25, 26.

53  “La Libye autorisera les partis religieux,” Flash Actu (May 2, 2012), available at http://www.lefigaro.fr/flash-actu/2012/05/02/97001-20120502FILWWW00573-la-libye-autorisera-les-partis-religieux.php, accessed May 4, 2015.

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.

59  Art. 25 of the International Covenant on Civil and Political Rights of December 16, 1966, http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx, accessed May 4, 2015.

60  “National Constituent Assembly Elections in Tunisia, October 23, 2011, Final Report,” The Carter Center, http://www.cartercenter.org/resources/pdfs/news/peace_publications/election_reports/tunisia-final-Oct 2011.pdf20, accessed May 4, 2015.

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.

65  Bill No.85/2012, November 29, 2012, http://www.anc.tn/site/main/AR/docs/projets/projets.jsp?n=85&a=2012, accessed May 4, 2015.

66  S. Bsikri, “Libya: Security Challenges and their Effects on the Political Operation,” Reports, Al Jazeera Centre for Studies (May 5, 2013), http://studies.aljazeera.net/reports/2013/05/20135592422219718.htm, accessed May 4, 2015 (in Arabic).

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).

71  Id. 98.

72  Id. 98–99, 107.

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.

74  B. Rougier (n 4) 88.

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).

79  A. A. Ahmida, “The Libyan National Transitional Council: Social Bases, Membership and Political Trends,” Reports, Al Jazeera Center for Studies (October 30, 2011), http://studies.aljazeera.net/ResourceGallery/media/Documents/2011/11/30/2011113072932155580Dr%20Ahmidas%20Libyan%20National%20Council.pdf, accessed May 4, 2015.

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.

89  E. Gobe (n 3).

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.

105  Id. 64.

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.

110  P. Martin (n 9) 73.

111  European Union election assessment team, “Final report, General National Congress Elections” (July 7, 2012), http://eeas.europa.eu/eueom/missions/2012/libya/reports_en.htm35, accessed May 4, 2015.

112  See M. Duverger, Les partis politiques (Armand Colin, Paris 1981) 491.

113  Id. 492.

114  Y. Ben Achour, “Religion, Révolution et constitution: le cas de la Tunisie,” Lecture recorded at the Center for Middle Eastern Studies, Harvard University, Boston (September 17, 2012), http://www.leaders.com.tn/uploads/FCK_files/file/Harvard%20%20Anglais%20derni%C3%A8re%20version.pdf, accessed May 4, 2015.

115  See, for example, the article by B. Barthe and H. Sallon, “Libye: les libéraux donnés gagnants des élections,” Le Monde (July 9, 2012).

116  In sum, the National Forces Alliance would have totted up 65 seats across the whole Assembly and the Justice and Reconstruction Party 35 seats, S. Bsikri, “The elections of the Libyan National Congress and the options of the winning political blocks” (in Arabic), Reports Al Jazeera Center for Studies (July 23, 2012), http://studies.aljazeera.net/ResourceGallery/media/Documents/2012/7/24/201272410518348734Libyan%20National%20elections.pdf2-3, accessed May 4, 2015.

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.

119  P. Martin (n 9) 136.

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.

128  “Formation du gouvernement libyen: Abū Shāqūr paye le prix d’un rapprochement entre libéraux et islamistes” (October 9, 2012), http://www.lexpressiondz.com/internationale/161727-abou-chagour-paye-le-prix-d-un-rapprochement-entre-liberaux-et-islamistes.html, accessed May 4, 2015.

129  Information available at http://www.m3n4.com/20/02/2013/worldnews/105596, 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.

143  “Libya’s transition without a Constitutional Map,” Position papers, Al Jazeera Centre for Studies (March 25, 2013), http://studies.aljazeera.net/en/positionpapers/2013/04/20134282438798512.htm, accessed May 4, 2015.

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.

147  (n 143).

148  Id.

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.

157  Constitutional Declaration of December 8, 2012, available at http://www.sis.gov.eg/Fr/Story.aspx?sid=40051, accessed May 4, 2015.

158  Results available at https://referendum2012.elections.eg/results/referendum-results, accessed May 4, 2015.

159  See L. Morel, “La pratique dans les démocraties libérales,” Le référendum, Pouvoirs, (April 1976) 38.

160  See “Egypt’s Plight: A political game without rules,” Position paper, Al Jazeera Centre for Studies (February 7, 2013), http://studies.aljazeera.net/en/positionpapers/2013/02/201327103350815755.htm, accessed May 4, 2015.

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.

163  Id. 10.

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.

171  An unofficial English translation of the constitution is available on the website of the State Information Service, http://www.sis.gov.eg/En/Templates/Articles/tmpArticles.aspx?CatID=2603#.VQFm3vmsWVO, accessed May 4, 2015.

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.

175  Results by the Independent High Authority of Elections are available at http://www.isie.tn/resultats/resultats-legislatives/, accessed May 4, 2015.

176  Results by the Independent High Authority of Elections are available at http://www.isie.tn/resultats/resultats-presidentielles/, accessed May 4, 2015.

177  S. Bsikri (n 66).

179  http://english.ahram.org.eg/News/75414.aspx, accessed August 28, 2015.