The following is a guest post by George Sadek, Senior Legal Information Analyst at the Law Library of Congress.
On January 25, all across Egypt, hundreds of thousands of Egyptians took to the streets to demand the resignation of President Hosni Mubarak. Mubarak responded to these demands by firing his cabinet and appointing a new one. In addition, he announced in a speech to the Egyptian nation that he will not run again in the upcoming presidential elections scheduled to take place in September. In his speech, Mubarak promised to amend Articles 76 and 77 of the Constitution concerning requirements for the presidential candidacy and terms. However, the protesters rejected the President’s decision to stay until the summer and asked him to step down immediately.
Mubarak refused the protesters’ demands. He stated that his immediate resignation will create a constitutional dilemma that will not accomplish the objectives of the protesters. According to the Egyptian Constitution, if the President steps down, his Vice President will not automatically succeed him. Instead, according to Article 84 of the Constitution, the Speaker of the People’s Assembly will temporarily assume the presidency and presidential elections must be held within 60 days. There also are other succession possibilities included in the succession provisions of the Constitution. The acting head of state during this period would be precluded from running in the next election. Moreover, should this occur, Article 82 of the Constitution precludes the acting president from attempting to modify the existing terms of the Constitution.
The Egyptian Parliament does not have the authority to approve or reject any proposed amendments to the current Constitution. This is because, on December 4, 2010, the Supreme Administrative Court (SAC), the highest administrative judicial body in Egypt, invalidated the two rounds of polling in the previous parliamentary elections. It upheld 1,000 decisions issued by multiple circuits of the Administrative Judicial Court (AGC, lower court), which had ordered that the announcement of the election results be halted.
The execution of the SAC’s ruling invalidated the results of the election in 92 constituencies, affecting 184 seats out of a total of 508. In this case, a quorum of the Parliament cannot be established because of the SAC’s action.
A committee has now been established to oversee constitutional changes. There are a number of measures that could be adopted in order to circumvent the legal and constitutional dilemma. According to Article 139 of the Egyptian Constitution, President Mubarak can delegate his authority and responsibilities to his Vice President, Mr. Omar Suleiman, and leave the political scene in Egypt. One possible scenario is that this move could be preceded by the suspension of the current Constitution, the dissolution of the Parliament, and the formation of a constituent assembly. The purpose of creating this assembly would be to draft a new Constitution during a transitional period. During this time period, a possible scenario would be that Mr. Suleiman can temporarily serve as president of Egypt until the new Constitution is written and the new parliamentary and presidential elections take place.
What if the President does not approve the delegation of his powers to the Vice President? In this case, the President may dissolve the Parliament and call for new parliamentary elections. According to Article 189 of the Constitution, after parliamentary elections, the President may submit constitutional amendments, concerning Articles 76, 77, and any other provisions, to the new Parliament for discussion and approval. After 60 days, the Parliament must either approve or reject the proposed amendments. If the Parliament approves the amendments, the Egyptian people must vote on these amendments in a referendum.
It remains to be seen what will happen going forward.