Hossam Bahgat and Soha Abdelaty, the executive director and deputy director of the Egyptian Initiative for Personal Rights, write:
Egypt’s constitution stipulates that if the president resigns or his office becomes permanently “vacant,” he must be replaced by the speaker of parliament or, in the absence of parliament, the chief justice of the Supreme Constitutional Court. In the event of the president’s temporary inability to exercise his prerogatives, the vice president is to take over as the interim head of state. In both cases a new president must be elected within 60 days. Significantly, the constitution prohibits the interim president from introducing constitutional amendments, dissolving parliament or dismissing the cabinet.
If today Mubarak were no longer available to fulfill his role as president, the interim president would be one of two candidates. If he chooses to leave the country, say for “medical reasons,” the interim president would be Omar Suleiman, the former intelligence chief who was recently made vice president. Egyptians, particularly those of us calling for an end to Mubarak’s three-decade rule, see Suleiman as Mubarak II, especially after the lengthy interview he gave to state television Feb. 3 in which he accused the demonstrators in Tahrir Square of implementing foreign agendas. He did not even bother to veil his threats of retaliation against protesters.
On the other hand, if Mubarak is pushed to resign immediately we would have an even worse interim president: Fathi Surur, who has been speaker of the People’s Assembly since 1990. Surur has long employed his legal expertise to maintain and add to the arsenal of abusive laws that Mubarak’s regime has used against the Egyptian people. Since neither Suleiman nor Surur would be able to amend the constitution during the interim tenure, the next presidential election would be conducted under the notoriously restrictive election rules Mubarak introduced in 2007. That would effectively guarantee that no credible candidate would be able to run against the interim president.
So before Mubarak resigns he must sign a presidential decree delegating all of his authorities to his vice president until their current terms end in September. Mubarak issued similar decrees, transferring his powers to the prime minister, when he was hospitalized in 2004 and 2009. In addition, Mubarak must issue decrees lifting the “state of emergency” that has allowed him to suppress Egyptians’ civil liberties since 1981 and ordering the release or trial of those held in administrative detention without charge – estimated to be in the thousands.
Also before Mubarak resigns, an independent commission of respected judges, constitutional law experts, civil society representatives and all political movements should draft language to amend the constitution to ensure that presidential elections are open to all credible candidates; that Egyptians abroad are allowed – for the first time – to vote; that any elected president is allowed to serve only two terms; and that the elections are supervised by judicial and civil monitors. Most of this will be a matter of undoing the damage Mubarak inflicted with his constitutional changes in 2007.
Issandr El Amrani comments:
To be honest, while the path they highlight is clear and worth considering, I believe extra-constitutional means deserve to be considered to: suspend the current constitution and have a transition council, for instance.
Another path that would remain within the constitution is to use Article 139 to appoint more vice-presidents, each empowered to deal with various aspects of the situation: one to take the lead on constitutional reform, one to investigate the events of the past week, one to restore and reform the Ministry of Interior, etc. It would be a defacto Council of Wise Men (and hopefully at least one woman!)