The dramatic fifty-word statement on Feb.11 by Egyptian Vice President Omar Suleiman announcing that President Mubarak had decided to step down from the office of the President of the Republic and had charged the High Council of the Armed Forces with administering the affairs of the country has raised many questions about the whole procedure, its legality, and its relevance to the Egyptian Constitution.
In fact, the resignation statement does not comply to the formulations of the constitution and in fact is unconstitutional because of the following:
a. The letter of resignation: The Egyptian Constitution states very clearly (Article 83) that the President of the Republic shall address his letter of resignation to the People’s Assembly. He did not do so.
b. Temporary Disability of the President: The Constitution states (Art. 82) that in case the President, due to temporary obstacles, is unable to carry out his functions, he shall delegate his powers to a Vice-President, which he did not.
c. Permanent Disability of the President to Fulfill his Functions: In that case, the constitution (Art. 84) states that the Speaker of the People’s Assembly shall temporarily assume the Presidency and in case the People’s Assembly is dissolved, the Supreme Constitutional Court shall take over the Presidency on condition that neither one shall nominate himself for the Presidency. According to this scenario, the President of the Republic is supposed to be chosen within a maximum period of 60 days from the date of the vacancy of the Presidential Office, which again was not done.
Mubarak chose to delegate his powers to an unknown body which, although mentioned in the constitution, appeared for the first time on the Egyptian scene during the last days of the demonstrations when it was clear that the regime was unable to control the masses and restore law and order in the country. Part Seven of the constitution refers to “The Armed Forces and the National Defense Council.” Article 182 stipulates that “The National Defense Council” shall be established and presided over by the President of the Republic. “It shall undertake the examination of matters pertaining to the methods ensuring the safety and security of the country. The law shall establish its other competences.” Article 183 states that “the Law shall organize military judicature, prescribed within the limits of the principles prescribed by the constitution.”
In fact, Mubarak never presided over this body. From the very beginning, Defense Minister and Commander in Chief of the Egyptian Armed Forces, Field Marshall Mohammad Hussein Tantawi, 75, headed the council and was behind the policy adopted by the army in the management of the crisis. Moreover, nowhere in the constitution is it mentioned that this National Defense Council is supposed to replace the disabled/resigning president.
In the statement read by Omar Suleiman, Mubarak in fact relinquishes all his powers, bypasses the constitution, and charges this council to administer Egypt. This is a clear message that neither Mubarak nor the armed forces trust the system and believe that following the road map in the constitution, Egypt will reach a safe haven. Rather, there is a semblance of déjà vu with the situation created following the 1952 coup orchestrated by the Free Officers led by Gamal Abd el Nasser, when a council of young army officers ruled the state until Nasser was elected president of Egypt.
The concrete meaning of this move is that the actual system created in Egypt since 1952 has ceased to function or be of relevance. Power and authority now rest in the National Defense Council, which is the sole representative of Egypt’s legitimacy.
Nevertheless, it seems that the council is very cautious about showing that Egypt has fallen back on the times of a military regime. In its first announcements, the council reaffirmed Egypt’s commitments to all its international agreements and asked Egypt’s last civilian government, nominated in Mubarak’s the last days, to continue to govern until it is replaced by a new government, nominated by the council.
What are the Egyptian masses and opposition forces to understand from this unfamiliar situation? Basically we are entering a period of mutual assessment which could last some time. Free and democratic elections are not for tomorrow. The Council will have to decide whether to dissolve the two houses of the People’s Assembly, rewrite the constitution (or at least correct it in order to allow free candidacies), and allow for the activities of alternative political forces of the opposition.
It is obvious that at a certain point the euphoria of the masses as well as of the new and old political forces will subside and demands for more freedom will be voiced. It seems unlikely at this time that the military will completely ignore the political structures built by Mubarak such as the ruling NDP party (National Democratic Party). In fact, without the NDP, the regime would lose a very precious counter-balance to the power of the Muslim Brotherhood and other opposition forces. This could create a serious situation for the military, which could find it more difficult to administer the country. The military will have to build a new structure made up of elements of the NDP as well as elements of the opposition in order to manage the country, at least in its first period of transition.
Maintaining power while trying to establish a democratic type of government is going to be the real challenge for Tantawi and his colleagues. This was, in fact, Mubarak’s last salvo before abandoning ship.
Col. (ret.) Dr. Jacques Neriah, a special analyst for the Middle East at the Jerusalem Center for Public Affairs, was formerly Foreign Policy Advisor to Prime Minister Yitzhak Rabin and Deputy Head for Assessment of Israeli Military Intelligence.