Seitenhistorie

...

The year 2005 marked a turning point for the promotion of the rule of law and democracydemocratization 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). ThisThe mightinfluence haveof beenthe theUnited resultStates of U.S. pressure on the government's course forAmerica over the course of the 2005 presidential (Stilt 2006: 335; Lange 2005b: 2-4, Perthes 2005; Durac 2009: 80) _and_ parliamentparliamentary elections (Lange 2005c,d,e), andcombined there might have been a relation to with 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, led the regime and taking into consideration a change, if only cosmetically (Abdelrahman 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 fairly and faithfully 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).

...

The selective delegation of policymaking to judicial institutions points a broader concern of authoritarian leaders - the maintenance of political legitimacy in lieu of credible mechanisms of public accountability. In many cases, authoritarian regimes switch to the rule of law as a legitimizing narrative only after the failure of their initial policy objectives or after popular support for the regime has faded. Egypt's second President, Gamāl 'Abd an-Nāsir (1954-1970), pinned his legitimacy on the revolutionary principles of national independence, the redistribution of wealth, economic development, and Arab nationalism. Judicial institutions were tolerated only to the extent that they facilitated the regime's achievement of these substantive goals. In contrast, the third President of Egypt, Muhammad Anwar as-Sādāt (1970-1981) explicitly pinned his regime's legitimacy to siyādat al-qānūn (rule of law) and used rule-of-law rhetoric various times throughout his eleven years of presidency (Moustafa 2008: 146; Brown 1997: 122), to distance his regime from the substantive failure of the Gamāl 'Abd an-Nāsir regime and authoritarian state in crisis, and to build a new legitimating legitimate narrative that was , distinct from the populist foundations of the state (Lombardi 2008: 234-273, Moustafa 2007: 6, 39).

Rule of law in the Egyptian context is, however, more than just a lip-service. The term siyādat al-qānūn has been incorporated into the Constitution: One is able to locate it in two prominent positions of the Constitution, namely in the Preamble and in Article 64 ("siyādat al-qānūn 'asās al-hukum fī ad-dawla", i.e. the State is subject to the rule of law). The latter marks, due Due to its prominent position in the normative part of the Constitution, the latter marks, a legally binding basis, whereas the preamble itself does not share the this legally binding character. However, since the Preamble is considered to be a compilation of motives rather than concrete rights or obligations, it nevertheless offers guidance for the interpretation of the text of Egypt's current Constitution. Having That said this, one should bear in mind that the rule-of-law concept implies and seeks the prevention of arbitrary exercise of the executive power - still a controversial issue in Egypt, even though the country has recently went through two successive reforms of "modernization" in 2005 (Lange 2005a: 2-8) and 2007 (al-Gayār 'Islām Kamāl 2006; Al Malky 2006; Al-Ahram 2007; Al-Mashat 2009: 31-34). One of the main criticism directed at the 1971 Constitution (and its amendments in 1980) by its opponents is its extreme centralization of powers with the President of the Republic. In his request for constitutional amendments dated 26 December 2006 (Al-Ahrām 2007: 1, 2 et seqq.) the President of the Republic maintained that the amendments would consolidate the balance of powers between the branches of the government through a redistribution of the competencies within the executive authority, and increasing the powers of the parliament. He added that the independence of the judiciary would also be enhanced. (Abd al-Hafī 2005).

...

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 have to get the assent of the government 's assent upon adopting regulations on law the enforcement of laws (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 as to the exercise by the President of the Republic of his 's 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 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.).

...

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).

...