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2.02.2011

Should He Stay or Should He Go: Negotiation as the Price of Constitutional Legality in an Egyptian Transition

In Egypt today, there are demands for the immediate resignation of President Hosni Mubarak. Those who make this demand seem to assume that his immediate resignation will facilitate the collapse of the regime that he heads—the political regime dominated by Mubarak’s National Democratic Party (the NDP). From a political perspective this might be true, though I cannot say for sure. Intriguingly, however, from a purely legal perspective, Mubarak’s immediate departure might have uintended consequences. Ironically, if Mubarak stepped down immediately it would become much harder to have a meaningful campaign period and hold an election in which the most popular leaders could take part and take the presidency—or at least harder to do so in a manner that is consistent with the formal requirements of the Constitution.

There is an ingenious device that one finds in the Egyptian constitution—one analogous to some of the "poison pills" that corporations occasionally adopt to prevent hostile takeover. If a President resigns or is otherwise removed, power will be transferred to high officials appointed to their office by the President. Not surprisingly the people in those offices today are members of the NDP elite. Furthermore, snap elections for a new president must be held under terms that overwhelmingly favor the election of a new President from the NDP. More maliciously still, the amendment provisions of the constitution are drafted in such a way that the Constitution cannot be amended in time to prevent the snap elections or alter the terms under which they are run. In short, even if the demonstrators had the power to force the current government unwillingly from office (something that they probably do not) they would not have the legal authority thereafter to run a fair election for a new President. To arrange for a formally “legal” transfer of executive power away from the NDP, one will have to negotiate with NDP leaders about the terms under which they cede power.

This raises some deeper questions. Among them: should anyone feel any reluctance about ignoring and violating the terms of this constitution? In this post let me just describe the problem and in a later post ruminate about some of the questions that it raises.

The “Poison Pill” in Egypt’s Constitution.

The Egyptian Constitution envisions three possible circumstances under which power might shift from a sitting president to another figure: (A) The President finishes his term, (B) The President is temporarily incapacitated or (C) or The President is permanently removed from office. In each of these cases, the constitution as it exists today provides that the election will be held according to a scheme that is rigged in subtle ways in favor of the current ruling party, the National Democratic Party (NDP). If people want not just a change of President but a change to someone who is not associated with the NDP (as demanded by the Egyptian protesters), the constitution will have to be amended so as to change the terms under which candidates for the presidency are selected and elections for President will be run. One might expect that it would be easier to achieve such an amendment if one forced the current president to resign. But one would be wrong. As a matter of constitutional design, the sudden departure of a President seems to set inexorably in motion a election that will be run under un-amended provisions of the current constitution. Let me explain:

The Egyptian constitution provides that, at the end of a presidential term, a presidential election shall be held either to re-elect the current President or to elect a new one. The Constitution limits, however, the people who can run in this election. Article 76 of the Constitution is a long provision that seems at first glance to allow candidates from multiple parties to run but which has been meticulously crafted to ensure that, in Egypt’s current situation, only candidates supported by the ruling National Democratic Party and could win. The parties with whom the most famous opposition figures (secular or Islamic) are most associated will not be legally permitted to field a candidate. This would need to be amended to allow for truly open elections. But an amendment to the Constitution requires the recommendation of the president or 1/3 of the delegates to the lower house of the legislature, the People’s Assembly. Since the regime has rigged elections to make sure that members of People’s Assembly are overwhelmingly members of the NDP, the People’s Assembly is unlikely to recommend anything the president would not. In short, if one wants free elections one needs to negotiate with the President and strike some bargain that would lead him to call for the amendment of Article 76.

If the president is for any reason, deemed “temporarily” unable to fulfill his duties, the situation remains much the same. Article 82 of the Constitution provides that the powers of the presidency will devolve to the recently Vice President, if there is one and the Prime Minister, if there is not. In this case, it would devolve to the recently appointed vice president of the regime, the head of the intelligence service Omar Suleiman. Article 82 bars the vice president, during the time he is filling in for a temporarily disabled president, from dissolving the People’s Assembly or requesting an amendment to the constitution. However, the Assembly could, on its own propose an amendment. And it is largely beholden to the leaders of the NDP. For the establishment of a truly open election down the line, Gen. Suleiman and his allies in the NDP would “allow” the captive legislature to call for an amendment of the constitution in a way that would lead to truly open elections and, thereafter, a shift of power forever away from the NDP. But they too would surely demand some concessions before they did so.

Things change if President Mubarak were forced to resign permanently. Ironically, however, they do not make it any easier, and perhaps, make it harder to bring a non-NDP person into the Presidency . If the president were to suffer permanent disability or sent a formal letter of resignation to the People’s Assembly the vice president does not become the president. Article 84 instead says that the Presidency is to be assumed by the speaker of the People’s Assembly acts as President for 60 days or, if he is unavailable, the Chief Justice of the Supreme Constitutional Court. During these 60 days, the Speaker or the Chief Justice, as the case might be, are forbidden to dissolve the People’s assembly and neither is permitted to request an amendment to the Constitution. During these 60 days elections for the presidency must be organized and held. It is this provision for quick elections that is so nasty.

Unless the Constitution is amended, the elections held within 60 days will have to be held under the terms of Article 76—the provisions that favor NDP candidates. As it turns out, however, it takes more than 60 days however, to amend the Constitution to ensure that the elections are held in a fair and open manner. Article 189, provides that either the President of the Republic or a one third plurality of the People's Assembly, may request the amendment of the Constitution. If a majority votes for the proposed amendment there must be a two month delay and then another vote. If a 2/3 supermajority approves, then there must be a popular referendum. In short, elections must be held within 60 days of a President’s departure or resignation and an amendment requires more than two months to go into force. So, paradoxically, Mubarak’s permanent departure might make it very difficult legally to hold a constitutionally valid election for a new president that would be fair and free and viewed as legitimate.

One cannot help but admire the perverse craftsmanship of this scheme. If one wants to satisfy the demands of this constitution AND at the same time satisfy Egyptian protesters demands for a quick transititon to a true multi-party democracy, then one should probably try to keep Mubarak in office (even if through a legal fiction he is considered to be “temporarily” disabled and power rests with a caretaker like Suleiman.) This forestalls the need for an election within 60 days and allows people to negotiate changes to the constitution and law so that open elections can be held. This would involve reforms to Egypt’s laws and administrative regulations, which need to be revised (or perhaps officially placed under a policy nonenforcement) so as to open space for political discussion. Constitutional amendments also need to be negotiated quickly so as to permit a truly open slate of candidates for President. These would need to be approved quickly by a majority of the People’s assembly which would pave the way for a subsequent supermajority vote two months later followed in short succession by a national referendum for a new president.

The Questions This Raises

This situation is intriguing. And it raises a question that one often deals with when trying to dismantle an authoritarian regime without violating the constraints of legality. Is it actually worth contorting oneself to ensure formal legality? Assuming that the protesters acquire the means to compel Mubarak to step down, this is a question they will have to ask themselves. And, I suspect, it is not just with respect to this position. Surely there are other parts of the Constitution that people might be tempted to ignore or violate in the interests of changing power, calling for a new constitutional convention and, in other ways, establishing quickly a more democratic and liberal Egypt.

--Clark Lombardi

5 comments:

  1. Fascinating post. I am intrigued by the role of the Iranian revolution and the Iraq invasion lurking in the background as negative models to avoid. Perhaps the protestors might seek to maintain constitutional continuity as a way of avoid the vacuum that led to chaos in Iraq and ultimately led to Khomeini taking power in Iran. On the other hand, if constitutional continuity leads to the continuation of the military-authoritarian regime, many might be willing to role the dice to tolerate significant breaks in legality. We are in one of the rare moments where the idea that the people are ultimate sovereign turns out to be more than a legal fiction. Should a credible transition path be laid out, I suspect the people would go for it, even if it violates the letter of the constitution to do so, and so the independent value of following the law will go by the wayside.

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  2. If I remember correctly, Tom Ginsburg's new book (with Zachary Elkins & James Melton) on the endurance of national constitutions suggests that most transitions from authoritarianism to democracies do not result in a new constitution. They cite the example of Chile, and suggest this might be more the norm than the exception. I'd also cite Indonesia in 1998. If somebody has the book nearby, it'd be interesting to check those figures. If true, it might suggest either reformers can't simply replace the constitution or fear doing so would lead to a power vacuum.

    In the Philippine and South Africa cases, reformers issued a provisional constitution while working on a complete constitution. This at least forestalled a power vacuum and gave drafters time to negotiate and settle on terms, and might be a model for other countries in transition.

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  3. Jeffrey Lenowitz (jal2154@columbia.edu)February 2, 2011 at 5:44 PM

    Excellent remarks. My question is whether the constitution has any independent legitimacy or authority for the people apart from that held by Mubarak and the current regime. This seems like one of those cases in which an autocrat and his party formally mold a constitution to their liking to such an extent that it transparently becomes their creation. For instance, the poison pill described above came about during the 2007 amendments, which the NDP pushed through Parliament and had approved in yet another suspicious referendum. If the opposition identifies the constitution with Mubarak and his regime, I would imagine that following constitutional procedures would be of little importance, especially due to the other sources of legitimation that the creators of a new constitution might draw from.

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  4. Thank you to the previous commenters. I have a second part to the post that I have been hesitant to post. It goes into the question of whether there are reasons to respect this constitution. One reason is that the 1971 Constitution DOES in fact have some legitimacy among the people. There are, of course, a number of provisions in the Constitution that are reviled in Egypt and will surely, eventually have to go. Nevertheless, the Egyptian Constitution is not all bad. Indeed, it is schizophrenic in that it has some provisions that are very rule of law friendly. While the government has opted to use the bad rather than the good the Constitution with some changes could be quite workable.

    Probably because the Constitution is Janus faced rather than purely malevolent, a culture respecting at least the thin rule of law has emerged. The government has generally used the powers that the constitution grants it to abuse rights. People have used the courts to overturn actions that cannot be justified under the Constitution, the courts have been responsive to them and the government has in almost all cases obeyed the courts; it has sometimes felt it has to amend the constitution or changed laws to prevent another smackdown. Indeed, the 2007 amendments were are as specific as they are because it knew it would be expected to obey them and wanted to be very clear to the Courts about how it expected elections to run. That is, ironically, a sign of respect for the letter of the law if not its spirit.

    My post (maybe I don't need to post it at all now) suggests that though a culture of thin legality is only a starting point for a robust rule of law. It is, however, a starting point. A reasonable liberal might be wary of arguing that law can be dispensed with on utilitarian grounds. They might believe that time is on their side and if a culture of legality was preserved, then, in the not to distant future, it will be more liberal laws that are being respected.

    On the other hand,if the government under pressure ceases to respect the culture of legality and the spell is broken then our reasonable liberal might become less concerned about departing from legality her or himself.

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  5. Jeffrey Lenowitz (jal2154@columbia.edu)February 4, 2011 at 9:46 AM

    Once again, another excellent and intriguing post. Today's piece in the NY Times expresses something similar.

    http://www.nytimes.com/2011/02/04/opinion/04masoud.html

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