Though the Egyptian government met with some opposition leaders over the weekend, the divide between them remains large. This is especially true when we look at how they want to deal with Egypt’s constitution. Mubarak wants to reform the current constitution. As he said in his Feb. 2 speech (in which he announced his decision not to run for reelection):
I am now careful to conclude my work for Egypt by presenting Egypt to the next government in a constitutional way…
In view of my authority, I call on the parliament, the people’s assembly and the shura consultative council to amend articles 77 and 76 of the constitution to pave the way for elections and to specify periods for presidential terms.
ElBaradei, on the other hand, wants to scrap the constitution altogether. As he stated over the weekend:
We need to abolish the present constitution… We need to dissolve the current parliament. These are all elements of the dictatorship regime, and we should not be — I don’t think we will go to democracy through the dictatorial constitution.
So let’s take a look at the constitution. Mubarak has stated he wants to amend Articles 76 and 77, which both relate to the election of the president. Article 76 states that the president is supposed to be elected by the People’s Assembly and then referred to the public for a plebiscite:
Article 76
The People’s Assembly shall nominate the President of the Republic. The nomination shall be referred to the people for a plebiscite. The nomination to the post of President of the Republic shall be made in the People’s Assembly upon the proposal of at least one third of its members. The candidate who wins two-thirds of the votes of the Assembly members shall be referred to the people for a plebiscite. If none of the candidates obtains the said majority the nomination process shall be repeated two days after the first vote. The candidate winning the votes with an absolute majority of the Assembly members shall be referred to the citizens for a plebiscite. The candidate shall be considered President of the Republic when he obtains an absolute majority of the votes cast in the plebiscite. If the candidate does not obtain this majority, the Assembly shall nominate another candidate and the same procedure shall be followed.
Though Mubarak wasn’t specific about how it would be amended, I imagine he has in mind a system of more direct elections. Article 77 is currently problematic because it allows for unlimited terms:
Article 77
The term of the Presidency is six Gregorian years starting from the date of the announcement of the result of the plebiscite. The president of the Republic may be re-elected for other successive terms.
Mubarak has specified he would like the article to contain term limits. And here’s Article 189, which outlines the process for amending the constitution:
Article 189
The President of the Republic as well as the People’s Assembly may request the amendment of one or more of the articles of the Constitution. The articles to be amended and the reasons justifying such amendments shall be mentioned in the request for amendment . If the request emanates from the People’s Assembly, it should be signed by at least one third of the Assembly members . In all cases, the Assembly shall discuss the amendment in principle, and the decision in this respect shall be taken by the majority of its members. If the request is rejected, the amendment of the same particular articles may not be requested again before the expiration of one year from the date of such rejection. If the People’s Assembly approves an amendment, in principle, the articles requested to be amended shall be discussed two months after the date of the said approval. If the amendment is approved by two thirds of the members of the Assembly, it shall be referred to the people for a plebiscite. If it is approved by the people it shall be considered in force from the date of the announcement of the result of the plebiscite.
So Mubarak wants the People’s Assembly to vote on constitutional amendments that will then be referred to the public for a plebiscite. ElBaradei wants Mubarak gone, the national assembly dissolved, and the constitution abolished. To see how the first two things could play out in a constitutional way, we need to look at Articles 82 and 84:
Article 82
If on account of any temporary obstacle the President of the Republic is unable to carry out his functions, he shall delegate his powers to a vice-president…
Article 84
In case of the vacancy of the Presidential Office or the permanent disability of the President of the Republic, the President of the People’s Assembly shall temporarily assume the Presidency; and, if at that time, the People’s Assembly is dissolved, the President of the Supreme Constitutional Court shall take over the Presidency, however, on condition that neither one shall nominate himself for the Presidency. The People’s Assembly shall then proclaim the vacancy of the office of President. The President of the Republic shall be chosen within a maximum period of sixty days from the day of the vacancy of the Presidential Office.
According to the constitution, if Mubarak steps down temporarily, the vice president assumes his powers. If he steps down permanently, the President of the People’s Assembly assumes the role. Article 136 lays out the process for abolishing the parliament:
Article 136
The President of the Republic shall not dissolve the People’s Assembly unless it is necessary and after a referendum of the People. In such a case, the President of the Republic shall issue a decision terminating the sessions of the Assembly and conducting a referendum within thirty days. If the total majority of the voters approve the dissolution of the Assembly, the President of the Republic shall issue the decision of dissolution. The decision dissolving the Assembly shall comprise an invitation to the electors to conduct new elections for the People’s Assembly within a period not exceeding sixty days from the date of the declaration of the referendum results. The new Assembly shall convene during a period of ten days following the completion of elections.
Mubarak could step down, his successor could abolish parliament, but, according to the constitution, new elections would have to happen within 60 days. So the question is… Does Mubarak (or his successor) abolish the parliament first, then the people elect a new parliament that amends the constitution? Or does the current parliament amend the constitution and then the president abolishes the parliament? I can’t see these things playing out in a way that is both constitutional and acceptable to the opposition. Mubarak may step down in some way. But the more thornier issue will be the abolition of Egypt’s constitution. This will be the thing that determines whether or not this protest movement turns out, in fact, to be a revolution.
