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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.).
Moreover, according to President Muhammad Husnī Mubārak, one of the objectives to be achieved through the constitutional reforms was "reorganizing the relationship between both the legislative and executive powers in order to achieve greater balance between them." (Risālat ar-Ra'īs Mubārak, 26 December 2006)
In this regard, e.g. the 2007 amendments have strengthened the powers of the second parliamentary assembly, the Majlis ash-Shūra (Consultative Council). Until then it was consulted for certain issues, but its opinion was non-binding. With the amendments of Articles 194 and 195 in 2007, the approval and not only the opinion, of the Consultative Council is now required in three cases: (1) requests of constitutional amendments, (2) draft laws complementary to the Constitution stipulated in about thirty articles (Articles 5, 6, 48, 62, 76, 85, 87, 88, 89, 91, 160, 163, 167, 168, 170, 171, 172, 173, 175, 176, 177, 178, 179, 183, 196, 197, 198, 206, 207, 208, 209, 210 and 211 of the Constitution), (3) and peace and alliance treaties, and all treaties conducive to a modification in the state territory or related sovereignty rights. A joint committee is formed to resolve any disagreement arising between the two parliamentary chambers on issues where the Consultative Council has the right of assent (Bernard-Maugiron 2008: 404).
New Article 194 of the Constitution has given a list of the "laws complementary to the Constitution" (al-qawānīn al-mukammila ad-dustūr), that have to be submitted to the Consultative Council. Before then, the Constitution had not given any definition or list of such laws, and the Supreme Constitutional Court had identified them on a case-by-case basis (The Supreme Constitutional Court had identified two criteria for law to be considered complementary to the Constitution, ; see al-Mahkama ad-Dustūriyya al-'Ulyā 1993: 290; Bernard-Maugiron 2003). For instance, in 2000, the Supreme Constitutional Court had decided that the new association law, adopted in application of Article 56 of the Constitution, had to be considered as complementary to the Constitution, and therefore that it should have been submitted to the Majlis ash-Shūra (Consultative Council) for its opinion in the first place. Since this had not been the case, the law was declared unconstitutional for procedural error (Al-Mahkama ad-Dustūriyya al-'Ulyā 2000: 582; Bernard-Maugiron 2008: 404).
The President of the Republic had also committed himself, during his electoral campaign in 2005, to strengthen the independence of the judiciary and, in his request of 26 December 2006, promised to enhance "the independence of the judiciary through the dissolution of the Majlis al-'Ulyā li-l-Hay'āt al-Qadā'iyya (Supreme Council of Judicial Bodies)". (Risālat ar-Ra'īs Mubārak, 26 December 2006).
Strengthening the judicial independence not simply de jure but also de facto, is, indeed, essential for an effective application of separation of powers. Separation of powers requires separation with coordination, as opposed to absolute separation. It is a principle that requires constant review (Omar Sherif 1999: 34). According to the amended Article 173, the former Supreme Council of Judicial Bodies, created in 1969 by Presidential Decree No. 82, should be replaced by a new Council, made of the presidents of all judicial bodies, and chaired by the President of the Republic. It shall protect the common interest of all judicial bodies.
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Moreover, like some recently created European constitutional courts, the Supreme Constitutional Court has consistently held that the constitution must be interpreted as an organic whole (Johansen 1997: 365). In this regard, the third President of the _al-Mahkama ad-Dustūriyya al-'Ulyā,_ Muhammad 'Aī Balīgh, stated that "the straight completion of the constitutional building will rise through this organic unity which characterizes the order of constitutional norms. This unity will realize the congruity of the texts of the constitution and it will remove the obscurity that may be mixed with it and the contradiction with which people may be think it to be afflicted. More, this court has this organic unity in mind whenever a case put before it is connected with an internal contradiction which the contestant pretends to see between the legal texts which he contests and the norms of the constitution. The investigation into the existence or non-existence of this contradiction is not achieved by simply returning to those constitutional texts only of which it is said that they contradict the legislative \[_qānūniyya_\] texts. Rather, one has to appeal \[_bi-l-ihtikām ilā ahkām ad-dustūr_ _jam'ihā_\] to all the constitutional norms so that the Court may make sure that the contested texts do not contradict each other." (_Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1984 hattā dīsambar sanat 1986, Dār al-Hannā li'l-Tabā'a, Cairo 1994, 4_) In the process of an organic interpretation, the Court has identified a handful of meta-principles that implicitly provide the unifying thread for all constitutional principles. Among these the Court has singled out four that are of particular importance, e.g. an overarching principle requiring Egypt to remain "democratic" (_see_ _e.g. Al-Ahkām allatī asdarathā al-Mahkama min Uktūbar 1981 hattā Dīsambar sanat 1983, Dār al-Hannā li-t-Tabā'a, Cairo, no date, 131/ 144; Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1984 hattā dīsambar sanat 1986, Dār al-Hannā li-t-Tabā'a, Cairo 1994, 360; Al-Ahkām allatī asdarathā al-Mahkama min yanāyir 1987 hattā'āhar yunyū sanat 1991, Matābi' Dār Akkhbār al-Yawm, Cairo, no date, 98 et seqq._) and to respect the separation of powers, and a commitment to ensure that Egyptian law respects the "rule of law" _(_{_}See, for example, (see e.g. Supreme Constitutional Court's Deputy Chief Justice's article (Omar Sherif 2002: 318-319))_. |
IV. State Security Courts
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Lifting the state of emergency, which would abolish the emergency court system, as well as ending the trial of civilians before al- mahākim al-'askariyya, would be a further important step upgrading the rule of law and in balancing the imbalanced separation of power concept in Egypt (Dunne 2006: 12). A clear separation between the judiciary and the executive has still not been achieved. Both the Minister of Defence - as mentioned above - and the Minister of Justice continue to exercise considerable authority over the judiciary (Omar Sherif 1999: 35, 38 et seq.). If the powers of the President have decreased following the amendments, he still keeps the most important ones, be it in the executive (See see Article 137, Article 148 and Article 150 of the Constitution), legislative (See Article 108, Article 109, Article 112, Article 113 of the Constitution) or even judicial fields where he is the one who nominates the general prosecutor, the presidents of the Court of Cassation and of the Supreme Constitutional Court, and is the head of the council of judicial bodies. Moreover, although the powers of the parliament have increased, it has to be seen whether the two assemblies dominated by the ruling party Hizb al-Watanī ad-Dīmuqrātī will put substantial modifications in the draft budget to table. Though they were introduced as strengthening the balance of powers (Risālat ar-Ra'īs Mubārak, 26 December 2006). the constitutional amendments have not procured major changes in the distribution of powers within the executive authority itself and between the executive and legislative ones. Nevertheless, the reform package could constitute the basis of continuative revisions in the future.
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