Looking at the (Suspended) Egyptian Constitution
So, what are the constitutional provisions for presidential resignations in Egypt?
At one point it this ongoing process, I thought that the reason Mubarak finally got around (after 31 years) to appointing a Vice President was to create a path for succession. However, in consulting the (now suspended, it would seem) Egyptian Constitution, I understand that a) the line of succession was actually to the Speaker of the People’s Assembly (lower chamber of parliament) and then to the President of the Supreme Constitutional Court (see Article 84 below). The Vice President only takes control if the President temporarily cannot fulfill his duties.
Indeed, Mubarak’s attempt yesterday to stay in the office whilst delegating powers to Suleiman makes sense in that context as what Mubarak was trying to do yesterday was basically to take a leave of absence without resigning (see Article 82 below).
If Mubarak wanted to follow constitutional procedure, he would have had to have submitted a letter of resignation to the People’s Assembly, with the Speaker becoming interim President. The Assembly would then have chosen a new President within 60 days (see Article 84 and 76 below).
I can find no constitutional provision allowing the military to take over executive powers.
It is quite clear that the relevant constitutional provisions have not been followed, which make the moves by the Egyptian military extraconstitutional (i.e., beyond the constitution—a nice way of saying “illegal”). This is why I would call what has happened “a coup.”
Here are the pertinent portions of the Chapter Five of the Egyptian Constitution:
In case the President of the Republic , due to any temporary obstacle, is unable to carry out his functions, he shall delegate his powers to a Vice-President.
In case of resignation, the President of the Republic shall address his letter of resignation to the People’s Assembly.
In case of the vacancy of the Presidential office or the permanent disability of the President of the Republic, the Speaker of the People’s Assembly shall temporarily assume the Presidency. In case the People’s Assembly is dissolved at such a time the President of the Supreme Constitutional Court shall take over the Presidency on condition that neither one shall nominate himself for the Presidency. The People’s Assembly shall then proclaim the vacancy of the office of President . The President of the Republic shall be chosen within a maximum period of sixty days form the date of the vacancy of the Presidential office.
Understand, too, that the process to elect the president under this document is not one that envisions multi-candidate elections:
The People’s Assembly shall nominate the President of the Republic . The nomination shall be referred to the people for a plebiscite. The nomination for the President of the Republic shall be made in the People’ Assembly upon the proposal of at least one third of its members. The candidate who obtains two thirds of the votes of the members of the People’s Assembly shall be referred to the people for a plebiscite . If he does not obtain the said majority the nomination process shall be repeated two days after the first vote. The candidate obtaining an absolute majority of the votes of the Assembly members shall be referred to the citizens for a plebiscite. The candidate shall be considered President of the Republic when he obtains an absolute majority of votes cast in the plebiscite. If the candidate does not obtain this majority, the Assembly shall propose the nomination of another candidate and the same procedure shall follow concerning his candidature and election.