Egipto gynybos ministro 2013 m. liepos 3 d. veiksmų konstituciniai pagrindai: lyginamoji analizė

Kristina Kenstavičienė
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Abstract

Actions by Egyptian Defense Minister on July 3rd, 2013 raised a question on what sort of means secure democratic military control and whether a democratic state can limit and control the use of force in a democratic manner. For this reason, in comparison with constitutional provisions of other states that embody different forms of government, this article analyses the constitutional status of a state leader as a head of military forces that was infixed in the Constitution of the Arab Republic of Egypt of December 26th, 2012, and also what constitutional fundamentals existed for Egyptian Defense Minister to perform actions on July 3rd, 2013, or to prevent these actions from materializing. The process that at the moment is in action in Egypt is an important test for democracy, which up until now the state has been having trouble to pass. When looking at the state government system provisioned by the Constitution of the Arab Republic of Egypt of December 26th, 2012, it becomes clear that the Constitution lacks more visible balance of power, which in turn creates the lack of democracy. Various military councils and military forces are equal to other three state powers (legislative, executive and judicial), but in a democratic country, military institutions of the state cannot be ascribed to state government institutions and furthermore have a priority over them. On the contrary, military state institutions must be liable to civil state institutions and must be controlled by them, and their decisions must be based on decisions by civil state institutions. Actions by Egyptian Defense Minister on July 3rd, 2013 were performed in breach of constitutional provisions that were set by the nation to live in accordance with, and this Constitution was validated in a referendum. According to the Constitution, Defense Minister is not the Protector of the Constitution; furthermore, no right is provisioned for him to terminate the validity of the Constitution. The Egyptian Constitution does not provide the Defense Minister with a right to dismiss the President of the Republic from the office and to appoint a constitutional jurisdiction judge to a temporary President office. What is more, it was possible to solve a political crisis apparent in a country and to avoid breaches of the Constitution by implementing other constitutional means (noconfidence, impeachment or election institutions).
2013年7月3日埃及国防部长的行动提出了一个问题,即什么样的手段可以确保民主的军事控制,以及一个民主国家是否可以以民主的方式限制和控制武力的使用。因此,本文将对比其他国家体现不同政府形式的宪法规定,分析2012年12月26日阿拉伯埃及共和国宪法中规定的国家领导人作为军队首脑的宪法地位,以及埃及国防部长在2013年7月3日采取行动或阻止这些行动发生的宪法基础。埃及目前正在进行的进程是对民主的重要考验,到目前为止,这个国家一直难以通过这一考验。当审视2012年12月26日阿拉伯埃及共和国宪法所规定的州政府制度时,很明显,宪法缺乏更明显的权力平衡,这反过来又造成了民主的缺乏。各种军事委员会和军事力量与其他三种国家权力(立法、行政和司法)平等,但在民主国家,国家的军事机构不能归属于州政府机构,而且比它们具有优先地位。相反,军事国家机构必须对民事国家机构负责,必须受其控制,其决策必须以民事国家机构的决策为基础。2013年7月3日,埃及国防部长的行为违反了国家制定的宪法规定,这部宪法在全民公决中得到了证实。根据宪法,国防部长不是宪法的保护者;此外,没有规定他有权终止《宪法》的效力。埃及《宪法》没有规定国防部长有权罢免共和国总统,也没有规定国防部长有权任命一名宪法管辖法官到临时总统办公室任职。更重要的是,通过实施其他宪法手段(不信任、弹劾或选举制度),可以解决一个国家明显的政治危机,避免违反宪法。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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