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Rule of Law in Egypt

Original contribution by

Hatem Elliesie, lawyer and doctoral student and Academic Coordinator of the Horn of Africa Projects at Freie Universitaet Berlin, Germany, Vice-Chairman of the Board of the Arabic and Islamic Law Association and member of the Executive Committee of the African Law Association. .

Panel

Wiki-Markup
The year 2005 marked a turning point for the promotion of the rule of law and democracy 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). This might have been the result of U.S. pressure on the government's course for the 2005 presidential (Stilt 2006: 335; Lange 2005b: 2-4, Perthes 2005; Durac 2009: 80) _and_ parliament elections (Lange 2005c,d,e), and there might have been a relation to the prospect of political transition considering a possible succession by the President's son Gamāl Mubārak. Still, even if only cosmetically, the regime had changed its course (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).


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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 (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 need the government's assent upon adopting regulations on law enforcement (al-lawā'ih al-lāzima li-tanfīd al-qānūn, Article 144 of the Constitution) and police control (lawā'ih adabt, Article 145 of the Constitution), and on 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, 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 the danger to 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.).

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