By Heba Fahmy
CAIRO: The debate overshadowing the Egyptian uprising revolves around the constitution and the various scenarios it offers to transfer Egypt from the current state of limbo to a state of stability, democracy and reform.
Even constitutional experts disagree on the perfect scenario and how the constitution should best be interpreted and implemented.
The first scenario was presented by government officials who stated that only the president has the jurisdiction to request the amendment of the constitution based on article 189. They cited this as a strong reason preventing the President from stepping down along with the claim that there would be a power vacuum that would plunge the country into endless chaos.
“These statements are untrue and even unconstitutional,” lawyer and professor of constitutional law in Cairo University Raafat Fouda told Daily News Egypt. “The President and one third of the People’s Assembly (lower house) both have the jurisdiction to request the amendment of the constitution.” Only with both parties’ consent can proposed amendments move forward.
Fouda said that the government was using this as an excuse to disperse the revolution and keep President Hosni Mubarak in power.
However, deputy dean of the Faculty of Law at Cairo University, Anas Gaafar disagreed.
“It’s better for the President to stay until the end of his term especially that it’s not a long time so he can dissolve the People’s Assembly and implement reform in preparation for the upcoming presidential elections,” Gaafar told Daily News Egypt.
“This will lead to stability in the country which is more important than any other considerations,” he added.
According to Article 84 of the constitution, if there is a vacancy in the presidential office, presidential elections should be held within 60 days. Article 76 of the constitution imposes many restrictions making it impossible for independent candidates to run in presidential elections.
President Hosni Mubarak announced in his speech last week that he would request amendments to Articles 76 and 77, allowing independent candidates to run for president and placing limits on presidential terms.
According to Article 189 , constitutional amendments have to be approved by the People’s Assembly.
If the amendments proposed are rejected by the majority of the People’s Assembly, then amendments of the same articles cannot be proposed again until a year passes from the day of rejection.
Skeptics doubt that the illegitimate parliament that was elected amid widespread fraud would vote in favor of the amendments. Calls on the government to dissolve the parliament continue to go unanswered
President Mubarak merely vowed to implement all court orders legally challenging some members of parliament, after those verdicts were initially ignored.
The second scenario, proposed by the “Council of Wise Men” and other opposition groups, states that President Mubarak can delegate his authority to Vice President Omar Suleiman who can then amend the constitution, dissolve the parliament and prepare for free democratic elections in September.
The advocates of this scenario rely on Article 139 of the constitution in their argument, adding that the President could finish his term as an honorary President without any authority.
“The President can’t delegate all his responsibilities to the Vice President or anyone else according to the constitution,” Fouda said. “He can only delegate executive responsibilities which don’t include amending the constitution or dissolving the Parliament.”
“Article 82 states that the President can delegate responsibilities if he is incapacitated through illness, but this is a revolution,” Fouda added.
Article 82 states that the President is allowed to “delegate his powers to a vice president on account of any temporary obstacle the President of the Republic is unable to carry out his functions.” It adds that the delegated powers do not include requesting amendments to the constitution or dissolving the parliament.
But under Article 139, “the President of the Republic may appoint one or more Vice Presidents, define their jurisdiction and relieve them of their posts,”
“The President can assign the Vice President any jurisdictions he chooses, but the President has to be willing to do so which doesn’t apply in our case,” Gaafar said.
However Fouda disagreed, adding that, “it’s unconstitutional for the President to remain in his post as a figurehead without having any responsibilities or jurisdictions.
“That only happens in parliamentary systems [like England],” he added.
The third scenario provided by Article 152 — that hasn’t been widely circulated or discussed — is having a referendum on the constitutional amendments.
“I’m not a fan of this scenario,” Gaafar said. “The situation in Egypt now is very unstable and the rate of illiteracy and poverty in Egypt is very high.”
“And now in the middle of the revolution many people might boycott this referendum because it’ll be held by the regime,” he said. “Opposition groups might vote based on their interests and the results and repercussions of this referendum might be devastating.”
Deputy Head of the Cassation Court, Ahmed Mekky, who was appointed Tuesday as a member of the constitutional refrom panel convened by presidential decree, told Daily News Egypt, “The debate over the constitution isn’t an issue…the issue is implementing change and reform despite the methods.”
“Israel for example has no constitution and yet the whole world acknowledges it as a democracy,” Mekky added.
The fourth scenario proposed is that if the revolution succeeds in toppling the government, the constitution in turn is annulled and an interim national council representing the people leads the country into reform and democracy and forms a new constitution.
“This is the only scenario that’s acceptable under the current circumstances,” Fouda said, “This is what happened in Egypt’s 1952 revolution and other revolutions around the world including Romania and France.”
“In this case an interim government representing the people in Tahrir Square and different opposition groups will take over and form a new constitution,” he said.
“The only problem is that the revolution isn’t complete yet…the protestors haven’t toppled the regime,” he said.
“What’s stalling that is the army’s stance to remain neutral and not support the revolution, while the government seems adamant on holding on to power,” he added.
“This scenario remains a possibility as a result of the stubbornness on both sides [the protestors and the government],” Gaafar said. “I fear that a lot of protests will be triggered from Tahrir Square including workers and employees all around Egypt which would be very difficult to control.
“Personally I prefer the first and second scenario to preserve the stability of Egypt, the regime has already made many concessions and reforms,” Gaafar added.
Fouda disagreed saying “corruption is embedded inside this regime…what it couldn’t do in 30 years won’t be done in six months.”
