Seitenhistorie

...

The year 2005 marked a turning point for the promotion of the rule of law and democratizationdemocracy promotion in Egypt (Wolff 2009: 110/111). Against the backdrop of unrelenting breaches of the rule of law while under pressure from the US government, President Muhammad Husnī Mubārak announced his attention to hold the first multiparty elections in 2005, a landmark decision in 24 years of his presidency (International Crisis Group 2005). The influence of the United States of America over the course of the 2005 presidential (Stilt 2006: 335; Lange 2005b: 2-4, Perthes 2005; Durac 2009: 80) _and_ parliament elections (Lange 2005c,d,e) combined with the prospect of political transition considering a possible succession by the President's son Gamāl Mubārak, led the regime to change, if only cosmetically, its discourse (Abdelfahman 2007: 296). During the election, however, newspapers around the world widely reported on the "judges' revolt" (Naïm 2006; Mekki / Bastawisi 2006; Abdel Azim 2006). The judiciary, supported by civil society, confronted the executive by denouncing the fraudulent results of the constitutional referendum, as well as the presidential and legislative elections. The "judges' revolt" was a test case for external promoters of the rule of law in Egypt: Some judges voiced a desire to supervise the entire electoral process and took the opportunity of the presidential campaign to request full independence from the (prepotent) executive within the overall national structures. For the presidential elections, a new electoral commission composed of magistrates (50 per cent) and other public figures close to the government, was established to supervise the ballot. Although part of the judiciary agreed to such an institutional novelty, some judges pointed to the fact that their "integrity  \[was\] being used to lend credibility to process over which they have only a limited control" (Brown / Nasr 2005: 4). In Egypt's post independence overall discourse on the rule of law, the developments around the 2005 elections constituted another episode in the long-running conflict between the executive and the judiciary (Wolff 2009: 101, 105; Abū Bakr 2007: 2). The Egyptian system, with its French inspired hierarchical courts, positivist orientation, and reliance on state-codified law has enforced executive will fairly faithfully for over a century. With the legislative authority clearly (if at times unofficially) under executive domination, it would be surprising if matters have been otherwise (Brown 1997: 118).

...

II. Constitutional Separation of Powers

Wiki-MarkupSome of the 2007 amendments aimed at creating a better allocation of powers within the executive authority, "by expanding the competencies of the Council of Ministers and the extent to which it participates with the President in the exercise of the executive authority" (_Letter addressed to Parliament by H.E. President_ _Muhammad Husnī Mubārak_ _requesting amendments to the Constitution of Egypt, Cairo, 26 December 2006_ \[[http://constitution.sis.gov.eg/ar/html/stat02.htm|http://constitution.sis.gov.eg/ar/html/stat02.htm]\]; hereinafter _Risālat ar-Ra'īs Mubārak_, 26 December 2006).

Thus, a paragraph was added to Article 138 stipulating that the President of the Republic shall exercise some of his competencies, as allocated by the constitution (Cf. Art. 137 of the Constitution), after the approval of the government, and others after taking its opinion. As from now, the Head of State, will have to get the assent of the government upon adopting regulations for the enforcement of laws (al-lawā'ih al-lāzima li-tanfīd al-qānūn) (Article 144 of the Constitution), police control regulations (lawā'ih adabt) (Article 145 of the Constitution), decisions necessary for the creation and organization of public services and interests (qarārāt al-lāzima li'inshā' wa-tanzīm al-marāfiq wa-l-maslāh al-'āma) (Article 146 of the Constitution), as well as for promulgating the peculiar presidential decrees (qarārāt) with statutory legislative force (quwwat al-qānūn) (Cf. Article 147 of the Constitution). The government will simply be consulted when the President adopts qarārāt quwwat al-qānūn by delegation from the Majlis ash-Sha'b (People's Assembly) (Article 108 of the Constitution), before declaring a state of emergency, or before ratifying important treaties (Article 148 of the Constitution and Article 151 para. 2 of the Constitution). Article 74 was also amended "to provide further safeguards" (Risālat ar-Ra'īs Mubārak, 26 December 2006) around the exercise by the President of the Republic of his exceptional powers in case of danger threatening national unity or state security, or if an obstacle prevents the state institutions from fulfilling their constitutional roles. The exceptional powers of the Head of State should, however, not be mixed up with the declaration of a state of emergency, provided by Article 148 of the Constitution: The amended Article 74 requires that the danger be serious and imminent. Moreover, the President must consult the Council of Ministers before adopting any emergency measures. The amended Article 141, on the other hand, obliges the President of the Republic to consult the President of the Council of Ministers upon nominating or dismissing members of his government, while the head of government will simply give an opinion (Bernard-Maugiron 2008: 401 et seq.).

...