Egypt ‘outside the rules’

Through the days leading up to President Hosni Mubarak’s resignation, there was much hand-wringing over how to force the president to resign when only he, under the Egyptian Constitution, could preside over such crucial democracy-building steps as dissolving the parliament and reforming the political system.

Would the country have to go back to its much-discredited parliament to help organize elections and rewrite the anti-terrorism laws? What about the fact that the constitution requires new elections in 60 days if the president steps down — surely that’s too soon for a country with no mature opposition parties?

By the third week of the uprising, most of the protest leaders in Tahrir Square had arrived at an answer. This was no longer an uprising, they said. It was a revolution. Dump the constitution.


Although the new military high command that is now ruling Egypt did not specifically say it was annulling the constitution, it appeared to be conveniently ignoring it, and analysts said Egypt under the best circumstances faces a fraught process of appointing an interim administrative council or cabinet, drafting a new constitution or amending the old one, nurturing political parties and, finally, electing a new president and possibly a parliament too.

The crucial questions over the next few days, analysts said, is whether army commanders allow the political opposition to take an active role in the new nation-building, how quickly new elections can be held and whether the council will guide the development of a new government that is fundamentally civilian in character.

“We’re operating outside the rules right now, so to ask what the procedures are is kind of hard,” said Nathan Brown, professor of political science and international affairs at George Washington University. “Is this new [council] really committed to some kind of new leadership or not? If we don’t see signs that they are, then I think the opposition may have cause to worry, and wonder if they personalized [their complaints around Mubarak] too much.”

One of the country’s leading opposition figures, Nobel Peace Prize laureate Mohamed ElBaradei, said preparing the way for truly free and fair elections could take up to a year. But many here worry about leaving the army in charge for too long and say every attempt should be made to meet the 60-day deadline for new presidential elections as outlined in the constitution.

“We must give them limited time. The new elections must take no more than 60 days, four months maximum. We need the urgent case,” said Mohamed Fouad Gadalla, vice president of the Egyptian state council, a network of administrative courts. He spoke from near the podium in Tahrir Square, where he was helping protesters draft a new legal strategy.

Gadalla said only about 20 articles of the constitution need rewriting. They could be quickly drafted and submitted to a public referendum, with a cabinet of nonpartisan “technocrats” running the country in the interim, he said.

ElBaradei, however, told CNN he thought that the process could take as long as a year, and he favors a presidential council made up of one military representative and two civilians to rule in the interim.

“A period of a year,” he said. “I think that’s what we need at least to help get started, established. Get people to get engaged. Build an institution. We have to start from scratch.”

Ironically, Mubarak on the eve of his departure set into motion many of the changes demanded by protesters — promising to lift emergency law when the security situation settles and to amend key articles of the constitution that the opposition said favored his son as successor and made it impossible for opposition parties to gain significant seats in parliament.

“He could have done that 10 days ago, and it might have been accepted,” said an Egyptian involved in the reform talks that preceded the president’s resignation, who spoke on condition of anonymity. “If he wanted to respond to the demands of the kids on the 25th of January, he could have said, ‘OK, I’ll ask the parliament to change these provisions in the constitution and I will call for new parliament elections, and I will change the cabinet.’ These things were in his hands from the very beginning. And he ultimately did [nearly] all of them, actually.”

But by then it was too late. The protesters realized they didn’t necessarily have to work within the constitution — true regime change would mean throwing gasoline and lighting a match on the entire apparatus of past power structures.

“The people in the street were not interested in simply amending the constitution. They wanted something much broader, and they believe that in a revolutionary movement, you start from scratch,” said Michael Wahid Hanna, program officer for the Century Foundation who has been studying Egypt’s constitutional issues.

Hanna said that even without throwing the constitution out, some constitutional scholars believe, there is leeway within the document for a popular referendum on amendments needed to foster free elections and end the repressive culture of surveillance.

Some of the country’s most respected legal scholars, however, saw no such loopholes. Their view — which Mubarak appeared to share — was that meaningful constitutional reform would be impossible if Mubarak stepped down because the authority to dissolve parliament, cancel the cabinet and draft constitutional amendments could not be delegated to a surrogate, such as Vice President Omar Suleiman.

Mubarak’s full-on resignation without the army stepping in would have meant, it seems, that a new president would have had to be elected under the old constitution on terms once again highly favorable to the dominant National Democratic Party.

But Hanna doubts that Mubarak stayed on as long as he did for the good of the homeland. He could have initiated amendments to the constitution at any time, he said, but instead got no further than appointing a committee to study it.

“When they amended the constitution in 2007, they did it in 48 hours,” he said.

Now, with the army in charge, all bets are off. Brown said the fact that the army has already put the defense minister in charge shows little deference to the constitution, which states that the speaker of the parliament should take over when the president steps down.

There will be few complaints — Fathi Surur, who has been parliament speaker since 1990, is probably one of the last people most opposition leaders would want running the government.

And although it is possible the army could wind up consolidating a new government that looks exactly like the military-dominated government that has ruled Egypt since 1952, one of the key figures in the Tahrir protests, Wael Ghonim, told CNN he is confident that army leaders want a different outcome.

“These guys don’t want to be in power,” he said. “These guys want the country to come back.”