Egypt’s 2025/26 parliamentary election has been the longest and most chaotic in its history. In November, the president acknowledged widespread fraud and urged the elections authority to “take the right decision,” even if it meant annulling the first phase entirely. Suddenly, all actors who had initially claimed everything was fine – including political parties, the police, and the judiciary – were echoing the president. As a result, over 70 percent of districts were overturned, and a blame game erupted within the judiciary, with some accusing others of “narcissism.” Some have seized the chaos to push for anti-constitutional measures and attacks on “the very notion of popular participation” itself, rather than accountability for the regime and election authorities.

Amid this firestorm, a far more consequential judicial move has gone largely unnoticed: the permanent disqualification of candidates based on prior exclusion from military service. I explain how this judicial reinterpretation bypasses clear legal rules and reflects a broader pattern in hybrid regimes, where courts and administrative bodies quietly enforce political loyalty under the guise of neutral procedures.

The disqualification of excluded candidates

In October 2025, Haytham Al-Hariri, a prominent opposition figure, was barred from running for the House of Representatives by the National Elections Authority (NEA) for failing to fulfill his military service obligation.

Egypt’s Elections Law requires candidates to “conclude military service or [receive] exemption” to be eligible for office. In practice, non-serving covers a wide range of situations, from illegal evasion or desertion to lawful categories, such as exemptions based on medical reasons, being an only child, or ministerial exception. For clarity, I refer to the latter category as “exclusion.”

Exclusion is a discretionary measure granted to the defense minister to excuse someone from military service for reasons related to “public order or national security” rather than specific criteria. Often, the military excludes enlistees whose families – or they themselves – are politically active, particularly those with Islamist or socialist backgrounds. For Al-Hariri, it is plausible that he was excluded from service in his 20s because of the political activities of his late father, an emblematic socialist and labor figure.

Drafted off the ballot

Courts cast military service as a “blood tax” and a “sacred duty,” the failure of which may justify barring a male candidate from the “honor of representing the nation.” They distinguish between the restricted right to candidacy and the general, absolute right to vote. To date, courts have addressed two categories of cases.

In the first category, courts have held that draft evasion forfeits an essential qualification for office and constitutes a disqualifying ground, even where an individual’s honor has later been restored. On this point, the courts are legally correct: draft evasion is explicitly disqualifying, and both legislative history and the Supreme Constitutional Court jurisprudence support this view. Whether lifelong electoral consequences are appropriate for what is, at most, a misdemeanor remains debatable, but the legal conclusion stands. Draft evasion is neither “service” nor “exemption.”

The second category concerns exclusion. During the 2025 Senate race, a leader of Al-Nour, a Salafist yet regime-friendly party, was barred from running. A court of first instance overturned the NEA’s decision, holding that exemption and exclusion are legally equivalent and that such bans undermine democratic representation by introducing disqualifications with no legal basis. The court emphasized that the candidate had “placed himself under the authority of the armed forces,” and that it was the military that exempted him from service. That ruling was swiftly reversed by the Supreme Administrative Court (SAC), which rejected the equivalence. In Al-Hariri’s case, the government relied on Al-Nour precedent and recast the “service or exemption” requirement as a “loyalty test,” again refusing to recognize their functional equivalence and barring him from running.

Why now?

The case of Al-Hariri is a striking example of Kafkaesque injustice. He served in Parliament from 2016 to 2020 and was a registered candidate for re-election in 2020, while another similarly disqualified figure, the deputy head of Al-Nour, had run in the last three elections. Yet both were suddenly barred for “failure” to perform military service, a rule never enforced before—strongly suggesting ad hominem targeting and an NEA overreach, a pattern seen before.

There is also an institutional dimension to the story: years earlier, the National Elections Authority had considered barring excluded candidates, a position championed by Judge Aboud but rejected at the time; after he became president of the Supreme Administrative Court, that judge confirmed the rule in Al-Hariri’s case, effectively elevating it to a judicial principle. Yet it remains unclear why the NEA reversed course, leaving a cynical but incomplete picture of the forces behind this decision.

Beyond errors

Al-Hariri’s case sets a dangerous precedent, imposing lifetime consequences for political participation. The ruling is flawed on multiple levels: it violates constitutional standards on candidacy restrictions, misunderstands military exclusion and individual culpability, and conflates two fundamentally different logics of military service and of representation.

Violating constitutional standards

Constitutionally, the decision is hard to justify. The Supreme Constitutional Court has long held that candidacy conditions must be established by law, be objective, reasonably justified, and consistent with the right itself (SCC 174/27 July 2007). Here, the Elections Law does not explicitly disqualify men excluded from military service, and the ministerial decree is merely an administrative measure, not valid legislation. Moreover, the exclusion decree (which underwrites the disqualification decision) fails to meet the standards of objectivity (it’s discretionary, ad hoc, and unpredictable), justifiability (it does not give a reason and is subject to no judicial review—giving rise to due process concerns if translated to electoral disqualification), and is inconsistent with the nature of representation in a democracy.

Flawed understanding of exclusion

The Court asserts that exclusion follows from “voluntary action” an individual committed with foreseeable consequences. This premise applies at most to a narrow set of serious offenders named in military decrees (e.g., crimes against state security, habitual theft, arson, corruption of public morals, etc.) Yet even here, final convictions do not automatically lead to exclusion; military exclusion remains discretionary, and the Minister of Defense retains the power to exclude, even for crimes not enumerated. The Court’s chain of causation, that voluntary conduct inevitably produces exclusion, is therefore incorrect.

More fundamentally, most exclusion grounds involve no voluntary action whatsoever: Al-Hariri and thousands of othersare a good case. Military decrees allow for the exclusion of several who also have committed no crime, such as political detainees (arrested without judicial order), Egyptians abroad who acquired a second nationality, or naturalized citizens before conscription age. By treating all exclusion as voluntary and foreseeable, the Court manufactures a definition untethered from how exclusion actually operates. That, in addition to how the court’s definition wrongly assumes not only voluntariness but culpability – which is not accurate.

Conflating two opposing logics

The military has a wide margin of appreciation to exclude individuals from service through, or without, coding new crimes under “public order or national security” at any time (as it recently did with rape). Under the Court’s reasoning, if the military labeled loitering or proselytizing as such, those individuals would permanently lose their right to stand for office.

The military’s discretion is justified for recruitment purposes, and it has no bearing on rights – it’s an administrative decision that impacts a duty. Administrative discretion, however, cannot override the stability required for constitutional fundamental rights, which is the core idea behind the hierarchy of norms.

By making electoral disqualification a corollary of military exclusion, the court conflates two diametrically opposing logics: uniformity within the military cadre and representation in parliament, which is designed to accommodate dissent, disagreement, and even mischievous behavior.

The root problem

At the heart of the court’s flawed reasoning is its attempt to treat “served or exempted” as a rigid binary, despite an obvious legislative gap. Under this logic, a newly above-age naturalized Egyptian who has neither served nor been exempted, or anyone in an ambiguous new administrative category, could be barred arbitrarily. Rather than recognize this gap and refer the matter to the legislature, the court turned legislative silence into blanket disqualification based on an incomplete framework. A constitutionally sound approach would resolve uncertainty in favor of political participation, and return it to the legislature – indeed, Parliament itself recognized this gap when, months before its dissolution in 2013, the second chamber was already debating allowing those excluded from military service to run, except for serious crimes.

Had the court chosen to work within existing constitutional principles rather than paper over legislative incompleteness, a defensible framework was available. It would focus on two questions. First, submission (SAC, Appeal 1973/ 47 JY (2000)): did the individual place himself at the disposal of the conscription system? This mirrors the Supreme Administrative Court’s earlier finding that failure to serve due to time spent during political arrest is force majeure and cannot be treated as draft evasion. The inquiry must center on the individual’s formal engagement with the service system, not on administrative categorization. Second, functional equivalence: does the law treat those excluded equivalently to those formally exempted in all respects, including civil rights, employment, and travel? If the answer to both is yes, there is no rational basis to consider “exclusion” as “failure to serve.”

Attention courts!

Hybrid regimes, to their credit, are creative and far-sighted legal drafters. They do not ban candidates outright, too crude and unbecoming. Instead, they delegate the task to administrative and judicial institutions to do the dirty work. The Egyptian case is novel only in its use of military service as a disqualification technique, but the broader pattern is familiar from Turkey, Russia, Pakistan, and Iran, and in some ways now in the United States.

In court, Al-Hariri’s lawyers rightly warned that the NEA’s actions risked turning the election body into a de facto Iranian Guardian Council, filtering hopeful candidates on a whim and en masse. The court did not listen. It is now the law of the land that an entire class of citizens, including student activists, could be barred from office permanently – “visiting the iniquity of the fathers upon the children,” as Al-Hariri himself feared, with no legal, rational, or necessary basis (and wasn’t even lobbied by the military.)

As the broader chaotic elections in Egypt revealed, courts are often the first to take the blame while tasked with cleaning state-created mess. Courts should avoid this trap. As reason-giving institutions, their institutional capital depends on the merits of their decisions, maintaining distance from the state, and transparency.

Because courts in Egypt didn’t, the consequences were immediate. Al-Hariri’s party withdrew from the election entirely. Others questioned the constitutionality and procedural legitimacy of the decision (Judge Aboud issued Al-Hariri’s after his retirement) and are pursuing the long road. In doing so, the court didn’t do anyone, including itself, a favor: it restricted the rights of thousands, handed future commanders-in-chief a new lever to sideline rivals and their families, and gravely damaged its own legitimacy and the credibility of the electoral process altogether.

Without waiting for a presidential greenlight, courts must resist being instruments of administrative overreach.