Mon, 07/02/2011 - 15:27
An Egyptian anti-government demonstrator at Cairo's Tahrir square, February 7, 2011 on the 14th day of protests calling for the ouster of President Hosni Mubarak. " title="Week of steadfastness" class="imagecache imagecache-highslide_zoom" width="536" height="402">As Egyptian protesters continue to insist that President Hosni Mubarak resign, legal experts say his remaining in power might be crucial to introduce urgent pro-democratic constitutional amendments.
“If he resigns, the situation will be dangerous because we will have a constitutional vacuum, which means that we will have no chance to amend the Constitution,” says Ibrahim Darwish, professor of constitutional law at Cairo University.
Under the Constitution, if the president resigns, he should be replaced by the head of the People’s Assembly or the justice of the Supreme Constitutional Court. Neither is entitled to amend the Constitution. The president’s substitute must also call for early presidential elections within 60 days, explains Darwish.
“In this case, the elections will be held in light of Article 76, which is a real catastrophe,” adds Darwish. “This article makes it impossible for anyone but Mubarak and his son to run for president.”
In 2005, Mubarak amended Article 76 to introduce multi-party presidential elections and put an end to a decades-old presidential referendum. Yet the changes imposed tremendous restrictions that the opposition saw as an an attempt to thwart the candidacy of any presidential hopeful who does not come from within Mubarak’s ruling National Democratic Party.
The current article stipulates that an independent presidential nominee must garner the support of at least 250 elected members of the parliament’s lower and upper houses as well as municipal councils. Reaching such a number is next to impossible for a non-NDP candidate, since the ruling party continues to boast a sweeping majority in all legislative bodies.
As for political parties, they are entitled to field candidates as long as they have been founded at least five consecutive years before the starting date of candidature and have been operating uninterruptedly for this period. Eligible parties must have obtained at least at least three percent of the elected members of the parliament’s two chambers in the last election, or an equivalent percentage of such total in one of the two assemblies. None of the existing parties meet these conditions.
As an exception to this provision, Article 76 goes on to say that political parties who have obtained at least one seat in parliament will have the right to field a candidate until 2017. The next presidential elections are set to be held this fall.
Last week, Mubarak announced that he would not run for a sixth term and promised to relax candidacy restrictions without elaborating on details. If Mubarak resigns before easing these limitations, many potential presidents might be excluded from the race, experts contend.
Yet youth-led opposition groups that sparked the uprising refuse to relinquish their demand that Mubarak step down. For 14 days, young cadres have been mobilizing hundreds of thousands of Egyptians behind two main slogans” “Mubarak! Depart!” and “The people want to out the president.”
“The president’s resignation is our primary demand,” says Zyad al-Alemay, a youth leader. “The president can order the amendments and then resign. Or delegate his powers to someone else. This should not take more than 15 minutes.“
To satisfy revolutionaries and at the same time avoid constitutional bumps, the newly-formed "committee of wise men," which includes a number of independent writers, lawyers and businessmen, has recently suggested that Mubarak remain a nominal leader but delegate all his authorities to his vice, Omar Suleiman, intelligence chief. Despite unprecedented local and international pressure, the army has been reluctant to push Mubarak out, on the grounds that he should be allowed to complete his term.
“The committee is trying to find a way out that would satisfy all parties. This solution would respect the demands of the protesters and preserve the dignity of the president,” says Nasser Amin, director of the Arab Center for the Independence of the Judiciary and Legal Prosecution and a member of the “Wise Men” committee.
In such a case, Suleiman can introduce constitutional amendments, says Amin.
Yet, Darwish dismisses Amin’s suggestions as unconstitutional, referring to Article 82, which stipulates that the vice president has no right to propose constitutional amendments, dissolve the parliament or sack the cabinet.
The only way out is to have the president delegate only his “executive” authorities to his deputy and to pressure the existing People’s Assembly to pass the amendments, says Darwish.
Under the Constitution, the president is not the only agent who can reform the Constitution. At least one third of the People’s Assembly can propose constitutional amendments.
Nevertheless, all constitutional maneuvers suggested by constitutional experts still fall short of convincing some radical opposition voices that argue that the president should step down immediately and a new Constitution be put in place.
According to Mohamed Farahat, professor of jurisprudence at Zagazig University, the abrogation of the old Constitution is contingent upon the strength of the revolutionaries.
“If protesters are strong enough to dictate their will, the abrogation of the old Constitution and the declaration of a new one can be a good option,” says Farahat. “But if protesters are not strong enough and all they can do is bargain with their regime, they will have to accept amendments introduced by the president to the existing Constitution.”
The negotiation process between the opposition and the military--represented by Suleiman--has already started. Representatives of different opposition groups, including the official Wafd and Tagammu parties and the banned Muslim Brotherhood, engaged Sunday in the first session of talks with Suleiman. Discussions revolved around the reforms required without delving into the question of Mubarak’s future.
Such talks were not endorsed by youth-led groups. As Suleiman was meeting with formal opposition groups, young activists held a press conference contending that they would not take part in any negotiations with Suleiman before Mubarak leaves office.
Given the fragmentation of their position, the opposition will most likely settle for constitutional concessions made by the regime rather than abrogate the existing Constitution, according to Farahat. “So far, we are still talking about a protest movement with no leadership. It expresses its rejection of what already exists but does not offer an alternative for what will come in place of that,” says Farahat.
For Darwish, abolishing the existing Constitution would be a dramatic scenario. It could pave the way for full-fledged military rule and abort democratic transition.
“If you touch the Constitution, Egypt will fall apart,” says Darwish. “The army will find a pretext to monopolize power and abrogate the Constitution altogether."
“If this happens, we will go back to July 1952,” he warns.
A few months after the 1952 coup d’etat, the military abrogated the 1923 constitution, promising to establish a more democratic order. Yet these promises were never delivered. All powers became concentrated in the hands of the military junta.
If the same scenario is repeated, “the whole state will collapse, we will have transfer of power, no democracy and we will be ruled by the Emergency Law,“ says Darwish.
For historian Sherif Younis, fears of the army monopolizing power along the lines of the 1952 coup d’etat seem unjustified, however.
“The 1952 scenario was very exceptional. The coup d’etat was not led by the army but by a political faction within the army known as the Free Officers. These officers hijacked the state as well as the military,” explains Younis, history professor at Helwan University.
In today’s situation, according to Younis, the military has been summoned by the conflicting parties to act as an arbitrator and maintain stability. If the army is to assume a greater political role, it will have to negotiate with the forces behind the democratic uprising.
“The army needs to ally itself with a civil entity that would represent this revolutionary legitimacy,” says Younis.
Reform leader Mohamed ElBaradei has also called for the army to secure the democratic transition along with civilian forces, arguing that the new Constitution should derive its legitimacy from the ongoing uprising.
Following bloody clashes between riot police and protesters, Mubarak called on the military to intervene and preserve public order on 28 January. Since then, senior military representatives have come to the fore to negotiate reform demands with the opposition.
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