The talk from Cairo today has been about the modalities of moving Hosni Mubarak aside. This ignores (for the moment) the fact that he clearly has no intention of going anywhere, though the underlying assumption is that the military can push him out if and when they really want to. Washington, worrisomely, seems over the last 24 hours to have shifted its attitude a bit. Though the Obama administration never explicitly called for Mubarak to resign the Egyptian presidency it certainly came close to doing so at several points this week. Now the message from Washington and other Western capitals seems to be that change needs to start now – but it’s OK if Mubarak stays around to oversee it.
The reasons behind this lie in the Egyptian constitution, and it is worth taking a little time here to look at exactly what that document says. This link will allow you to download an English-language translation of Egypt’s constitution. The website in question is run by the Electoral Knowledge Network, but the pdf document it links to is the Egyptian government’s official translation of the Arabic original.
As more than a few commentators have noted in recent weeks, Egypt’s succession procedures are very different from what people in the United States are accustomed to (see especially this analysis by Nathan Brown at Foreign Policy). The most important factor is this: if the president resigns or dies, newly appointed vice president Omar Suleiman does not become president. Instead, the office passes temporarily to the speaker of parliament, a rather colorless government hack named Fathi Surour. Surour would be acting president for sixty days, at the end of which period an election would have to be held with the winner getting a full six-year term in the Presidential Palace. Surour, as Acting President, would not be eligible to be a candidate in this election.
This procedure mirrors the one that brought Mubarak to power in the first place. Back in 1981 Egyptian presidents were elected by parliament rather than by a popular vote. When Sadat was assassinated the then-speaker of parliament became Acting President until the parliament could pick a new leader. That Mubarak, Sadat’s vice president and a hero of the 1973 Arab-Israeli War, would be that choice was never seriously in doubt since the People’s Assembly (as the parliament is known) then, as now, was largely a rubber-stamp body.
Fast-forward to 2011, however, and this scenario sets up a lot of unpleasant possibilities. This is especially the case because, in 2005, Mubarak had the Assembly pass several amendments to the constitution. These amendments established direct presidential elections, but were also explicitly designed to ensure that no serious candidate could run against Mubarak or his anointed successor (i.e. his son Gamal) in any future presidential election. See the constitution’s insanely-detailed Article 76 for the details. A companion amendment (Article 77) removed the term limits that had heretofore applied (at least theoretically) to the Egyptian presidency. Mubarak clearly is well aware that these two articles are particular sore points with his critics: when he went on TV last week to insist he would stay but, at the same time, to promise reform he singled out Articles 76 & 77 of the constitution as things that need changing.
So the problem with the constitution as it stands is this: if Mubarak resigns he triggers a rushed election for which the opposition is not prepared and in which only candidates approved by his cronies can run. Moreover, constitutional changes need to be enacted by the People’s Assembly, and it is difficult to imagine this group of government hacks, on their own initiative, making any moves to lessen what little power they have.
There are, however, ways around this problem. Everything I have just described is contingent on the president resigning. Article 82 of the constitution, however, allows the President to “delegate his powers to a vice president” if “on account of any temporary obstacle the President of the Republic is unable to carry out his functions.”
Note that phrase: “a vice president”, not “the vice president.” While Mubarak had, until last week, governed without any vice president at all the constitution allows him to appoint, believe it or not, as many VP’s as he may wish to have. If he then steps aside due to a “temporary obstacle” he can choose the VP to whom he delegates his powers.
A VP serving as Acting President does not have the authority to dissolve parliament, but this issue is easily dealt with by having Mubarak issue such a decree immediately before signing over his powers.
Thus, a plausible scenario emerges: one that allows Mubarak to exit with some dignity, preserves the army’s role in the transition (let’s be honest: Mubarak will only go if the military pushes him out, and that will only happen if the military is assured that its own place in society is secure) but, at the same time, opens a path for true democracy:
Step 1: Mubarak appoints another vice president – perhaps Mohammed Elbaraedi. Even better: he even appoints two new VPs (perhaps ElBaraedi and someone representing the business community).
Step 2: Mubarak dissolves parliament – an act that requires new elections after two months.
Step 3: Mubarak, invoking article 82, transfers his powers to one of the new vice presidents. The new acting president, Omar Suleiman and our notional third vice president become a temporary ruling council. They preside over new parliamentary elections.
Note that all three of these steps can be done simultaneously: just sign the three relevant documents in the correct order.
Step 4: The new parliament rewrites Article 76 to ensure that a free and fair election can take place in September. Meanwhile the three-person ‘Presidential Council’ outlined above runs the country through the summer and early fall.
My point here is that Mubarak’s grotesque, undemocratic constitution is being presented in a number of western accounts as an insurmountable obstacle to democratic reform. An argument is emerging in both Washington and Cairo that Mubarak or Omar Suleiman needs to remain in charge of the country for at least the next several months if reform is to take place within a legal framework (which, I think we can all agree, is probably better than the army formally taking over and starting from scratch). This is not true. The constitution as it stands is a dictator’s manifesto – but a way forward does exist; one that takes Egypt toward the democracy and does so by rule of law. If, of course, the President can first be made to see that his position is no longer tenable.
The reasons behind this lie in the Egyptian constitution, and it is worth taking a little time here to look at exactly what that document says. This link will allow you to download an English-language translation of Egypt’s constitution. The website in question is run by the Electoral Knowledge Network, but the pdf document it links to is the Egyptian government’s official translation of the Arabic original.
As more than a few commentators have noted in recent weeks, Egypt’s succession procedures are very different from what people in the United States are accustomed to (see especially this analysis by Nathan Brown at Foreign Policy). The most important factor is this: if the president resigns or dies, newly appointed vice president Omar Suleiman does not become president. Instead, the office passes temporarily to the speaker of parliament, a rather colorless government hack named Fathi Surour. Surour would be acting president for sixty days, at the end of which period an election would have to be held with the winner getting a full six-year term in the Presidential Palace. Surour, as Acting President, would not be eligible to be a candidate in this election.
This procedure mirrors the one that brought Mubarak to power in the first place. Back in 1981 Egyptian presidents were elected by parliament rather than by a popular vote. When Sadat was assassinated the then-speaker of parliament became Acting President until the parliament could pick a new leader. That Mubarak, Sadat’s vice president and a hero of the 1973 Arab-Israeli War, would be that choice was never seriously in doubt since the People’s Assembly (as the parliament is known) then, as now, was largely a rubber-stamp body.
Fast-forward to 2011, however, and this scenario sets up a lot of unpleasant possibilities. This is especially the case because, in 2005, Mubarak had the Assembly pass several amendments to the constitution. These amendments established direct presidential elections, but were also explicitly designed to ensure that no serious candidate could run against Mubarak or his anointed successor (i.e. his son Gamal) in any future presidential election. See the constitution’s insanely-detailed Article 76 for the details. A companion amendment (Article 77) removed the term limits that had heretofore applied (at least theoretically) to the Egyptian presidency. Mubarak clearly is well aware that these two articles are particular sore points with his critics: when he went on TV last week to insist he would stay but, at the same time, to promise reform he singled out Articles 76 & 77 of the constitution as things that need changing.
So the problem with the constitution as it stands is this: if Mubarak resigns he triggers a rushed election for which the opposition is not prepared and in which only candidates approved by his cronies can run. Moreover, constitutional changes need to be enacted by the People’s Assembly, and it is difficult to imagine this group of government hacks, on their own initiative, making any moves to lessen what little power they have.
There are, however, ways around this problem. Everything I have just described is contingent on the president resigning. Article 82 of the constitution, however, allows the President to “delegate his powers to a vice president” if “on account of any temporary obstacle the President of the Republic is unable to carry out his functions.”
Note that phrase: “a vice president”, not “the vice president.” While Mubarak had, until last week, governed without any vice president at all the constitution allows him to appoint, believe it or not, as many VP’s as he may wish to have. If he then steps aside due to a “temporary obstacle” he can choose the VP to whom he delegates his powers.
A VP serving as Acting President does not have the authority to dissolve parliament, but this issue is easily dealt with by having Mubarak issue such a decree immediately before signing over his powers.
Thus, a plausible scenario emerges: one that allows Mubarak to exit with some dignity, preserves the army’s role in the transition (let’s be honest: Mubarak will only go if the military pushes him out, and that will only happen if the military is assured that its own place in society is secure) but, at the same time, opens a path for true democracy:
Step 1: Mubarak appoints another vice president – perhaps Mohammed Elbaraedi. Even better: he even appoints two new VPs (perhaps ElBaraedi and someone representing the business community).
Step 2: Mubarak dissolves parliament – an act that requires new elections after two months.
Step 3: Mubarak, invoking article 82, transfers his powers to one of the new vice presidents. The new acting president, Omar Suleiman and our notional third vice president become a temporary ruling council. They preside over new parliamentary elections.
Note that all three of these steps can be done simultaneously: just sign the three relevant documents in the correct order.
Step 4: The new parliament rewrites Article 76 to ensure that a free and fair election can take place in September. Meanwhile the three-person ‘Presidential Council’ outlined above runs the country through the summer and early fall.
My point here is that Mubarak’s grotesque, undemocratic constitution is being presented in a number of western accounts as an insurmountable obstacle to democratic reform. An argument is emerging in both Washington and Cairo that Mubarak or Omar Suleiman needs to remain in charge of the country for at least the next several months if reform is to take place within a legal framework (which, I think we can all agree, is probably better than the army formally taking over and starting from scratch). This is not true. The constitution as it stands is a dictator’s manifesto – but a way forward does exist; one that takes Egypt toward the democracy and does so by rule of law. If, of course, the President can first be made to see that his position is no longer tenable.
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