Mubarak’s resignation underlines new uncertainties

Analysis: System created in 1952 has ceased to function or be of relevance; power, authority now rest with National Defense Council.

By JACQUES NERIAH
February 14, 2011 04:27
Deposed Egyptian president Hosni Mubarak

Deposed Egyptian President Hosni Mubarak 311 AP. (photo credit: AP)

The dramatic 50-word statement on February 11 by Egyptian Vice President Omar Suleiman, announcing that President Hosni 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.

The resignation statement does not comply with the formulations of the constitution and in fact is unconstitutional because of the following:

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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 president of Supreme Constitutional Court shall take over the presidential duties; in neither case can the temporary office-holder be nominated for the presidency in the subsequent election. According to this scenario, the president of the republic is supposed to be elected within 60 days of the vacancy of the office, which again is not being done.

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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, Field Marshal Mohamed Hussein Tantawi, 75, defense minister and commander in chief of the Egyptian Armed Forces, headed the council and was behind the policies 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 with administering Egypt. This is a clear message that neither Mubarak nor the armed forces trust the system and believe that in 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 Abdel Nasser, when a council of young army officers ruled the state until Nasser was elected president.

The concrete meaning of this move is that the 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 to the times of a military regime. In its first announcements, the council reaffirmed Egypt’s commitments to all its international agreements and asked its last civilian government, nominated in Mubarak’s last days, to continue to govern until it is replaced by a new one, 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 parliament, rewrite the constitution (or at least correct it to remove restrictions on who can be a candidate for the legislature), 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 that the military will completely ignore the political structures built by Mubarak, such as the ruling 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 initial 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.

The writer, a special analyst for the Middle East at The Jerusalem Center for Public Affairs, was formerly foreign policy adviser to prime minister Yitzhak Rabin, and deputy head for assessment of IDF Military Intelligence.

Reprinted with permission of The Jerusalem Center for Public Affairs.


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