Blog of the International Journal of Constitutional Law

The Price of Legality in an Egyptian Transition, Part II–some other voices weigh in

As I noted in my last post, under the current constitutional scheme in Egypt, elites in the ruling National Democratic Party can hold hostage the “legality” of any quick regime change.

To recap: Under the current constitution, as soon as the president is forced out, elections must be held within 2 months and must be held in a manner that favors the election of someone associated with the NDP. According to the terms of the constitution, the Constitution cannot be amended within 2 months. The only way to remove the NDP apparatus is through a cumbersome and carefully orchestrated process: One must keep the President on, formally, as the head of state (although, if he is deemed “temporarily” disabled, actual power can be wielded by his vice president.) The President or his stand-in must then be convinced to agree to Constitutional and legal changes that would permit a free and fair election. In my earlier post I may actually have understated the care with which the transition must occur. One thing I did not stress, but should have, is that the amendments would ideally (and perhaps as a practical matter might have to be approved) by a new legislature. For this to occur, the President must be convinced to dissolve the legislature which will bring about the election of a new legislature within 60 days. The President himself must do this, not the stand-in, so if one anticipates President Mubarak resigning effective power under the legal fiction that he is “temporarily disabled” the parliament must be dissolved before the beginning of the “temporary disability.” Would the the President and/or his stand-in be willing to go through this elaborate process of divesting themselves from power. If so, one can be sure that they will demand concessions before they do that—possibly concessions that provide immunities or continuing influence for current regime elites.

So, should anyone feel any obligation to ensure that a transition in Egypt is formally legal? Some seem to think not. My wife tells me that she saw on the BBC website this week, a picture of an Egyptian protestor holding a sign that says in English: ‘The Constitution Must Go.’ One understands the sentiment. Surely, there is something distasteful about planning a transition according to some self-serving rules that the sclerotic elite you are trying to remove wrote during a period when they had you under their thumb. That is particularly true if, as here, the provisions may allow members of that elite to negotiate ongoing immunities and/or continuing influence. Nevertheless, if one takes a step back there may be reasons that counsel against a hasty decision to force regime change through formally illegal channels.

Thus, Harvard Professor Tarek Massoud today published an op-ed in the New York Times that proposed a method that would preserve legality–in a manner analogous to the one I proposed in my post.

Similarly, yesterday, a group of leading Egyptian Democracy activists issued a statement in al-Shuruq calling for a transition that seems also to be trying to propose a path to transition that would ensure that transition occurs in a “legal” mode. For the paper’s Arabic website, click here. . For a translation posted by the Carnegie Corporation click here.

Reading, the activists proposal is illuminating, if only to illustrate how complex the process of transitioning in a legal mode would have to be: As it turns out, the activists’ proposal may not actually satisfy all the requirements to make it fully legal. A short while ago Tarek Massoud pointed out in an e-mail to some people watching the situation that this proposal would still violate article 82 because it has the acting president dissolving parliament and changing the constitution. Nevertheless, it is quite possible that this is an oversight The “Poison Pill” that I describe in my earlier post was added in 2007, but some newspapers and websites still have the pre-2007 Constitution on their websites. Given the number of things going on and the complexity of the provisions at issue, it is possible that people missed this. Furthermore, as Nathan Brown pointed out in a later e-mail, the activists overlooked the flaw in their plan as a mode of legally transitioning away from NDP rule. Furthermore, as Prof. Brown also noted, it needs only a minor change to work. (Mubarak would have to dissolve the parliament prior to handing the reins “temporarily” to his Vice President and at which point new Parliamentary elections would be held with 60 days under an existing law that (when it comes to parliamentary elections) could actually be held fairly.)

Assuming that the statement of the activists, like that of Prof. Masoud reflects a desire to find a formally legal manner of transferring power, one cannot help but be struck by their implicit embrace of a principle of legality–notwithstanding the inconvenience that embracing this principle might cause and, notwithstanding the fact that embracing the principle might force one to grant the members of the outgoing regime some concessions that one would not have to grant them if one simply removed them extra-legally.

In my next post, I want to discuss some of the reasons why a committed proponent of the regime in Egypt might today accept the proposition that a legal transition is preferable to an extra-legal one–even though legality might delay Mubarak’s departure or might require some distasteful concessions. Obviously the preference is not unqualified. I will not speculate about how many Egyptians actually accept this proposition or how-much-delay/how-many-concessions they are willing to endure. This is something that will become clear over time. I do want to make clear, however, that some do accept this principle, and it is worth thinking about why this might be.


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