Friday, 4 February 2011

Constitutional chaos in Egypt

In a rather narrow technical sense, Egyptian President Hosni Mubarak and his first vice president, Omar Suleiman, are right when they say that Mubarak's sudden departure will lead to chaos -- constitutional chaos. But it's chaos of the regime's own making and the protest movement has no obligation whatsoever to help them out of the hole they have dug for themselves. The problem is that if Mubarak transfers his powers to Suleiman, elections must be held according to the existing constitution. Article 82 says he could not propose any constitutional amendments, he could not dissolve the existing cabinet (which Mubarak appointed on Saturday) and he could not dissolve parliament. Such a scenario is completely unacceptable to the protest movement and to most politically aware Egyptians. What they want is a government of national unity, the dissolution of parliament and a new constitution removing the restrictions on presidential candidates. Mubarak and Suleiman are telling the United States and the Egyptian parties willing to negotiate with them that this is why Mubarak needs to stay around for many months for the necessary changes to go through. They deserve to be ignored. It is their own arrogance, irresponsibility and greed for power that has brought about the impasse. As the regime's power slips away, all the institutions of the state are gradually losing whatever legitimacy they ever had. The president is illegitimate because the last presidential elections were rigged, the constitution is of dubious validity because it was approved in a similarly dubious referendum and the existing parliament resulted from one of the worst election fiascos in recent years -- because of massive fraud, only one opposition party won a seat in the assembly. One possible 'solution' would be to appeal to article 139 of the constitution, which gives the president the right to define the jurisdiction of his vice presidents. In other words Mubarak would issue a presidential decree that Suleiman does in fact have the authority to dissolve parliament and propose constitutional amendments. But on common sense grounds, it is an absurdity that the president could use such vague language to circumvent a ban specified in detail in another part of the constitution. Problems like this arise when you draft a constitution unilaterally without broad consultation, especially if the whole purpose of the exercise is to perpetuate your own power rather than to enshrine a neutral vision of how the state should function. But at this stage in the confrontation between the regime and the protest movement, it's the power of the streets that matters. If Suleiman can't satisfy the protest movement constitutionally, they should demand explicitly a constitutional assembly and start again from scratch.           

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