Reports
Cairo: February 2003

 Introduction      Part one       Part two     Part three        Part four

The Effect of the Emergency Law on the Human Rights Situation

 In Egypt: 1992-2002

 History

 These laws appeared for the first time in 1914 during World War I, during which time Egypt was part of the Ottoman Empire.[1]  During this period, legislation was the responsibility of the Waly (one high-ranking authority as opposed to a group of popular representatives), and this situation prevailed until the establishment of the Council of Ministers (Majlis Al-Nozaar) in August 1878.  In 1878, a Sultan’s Decree was issued outlining ministerial responsibilities. It was decreed that in order for legislation to legally enter into force, the relevant or specialized minister would authorize it.

Following the British occupation, the Council of Ministers and the Khedive, in addition to the Consultation of Laws Council and the Legislative Assembly were designated as the four legislative bodies. The Legislative Assembly was established with the sole responsibility of legislating.  It met only once however prior to the outbreak of World War I in 1914.  On 19 April 1923 the Constitution was issued, which gave legislative authority to the Representative Council and the Shoyoukhs Council (religious leaders), in cooperation with the King. 

In the Constitution of 1923, Article 45 stated that whilst the King had authority to issue martial laws, such laws were required to be immediately presented to the parliament, which would decide on their continuing application or abolition.[2]   In the situation where martial laws were issued whilst Parliament was not sitting, the Constitution provided for the convening of an emergency session to immediately discuss the new laws at hand.  Article 155 of the same constitution prescribed that the suspension of constitutional arrangements could only occur in circumstances of war.

Similarly, the new Martial Law (No 15 of 1923) provided the following conditions on the use of martial law:

v     The right to issue martial law was based on establishing threats to security and public order, including an external enemy or because of internal strife;

v     The situation of securing the Egyptian army and guaranteeing supply to the armies’ movements and army work outside the kingdom of Egypt. In Law No 73 of 1948, the right of issuing martial laws was provided for in the case of a defensive war.  Article 3 of Law 73 included many arrangements that the government was permitted to make during the time of martial law, some of which placed restrictions public freedoms and the rights of the individual.  

It is important to realize from the above-mentioned articles, that the system of martial laws in Egypt established in the 1923 constitution limited martial law to times of military necessity. This may be contrasted with the breadth of the current emergency law (see discussion below) which utilizes exceptional law for political rather than military objectives.  Additionally, prior to the 1952 revolution, the martial law did not authorize the use of administrative detention.

On 22 October 1930, the Constitution of 1930 was issued. The 1930 Constitution retained the articles concerning martial laws, but included amendments to the detriment of parliamentary institutions in Egypt.  The constitution eroded the separation of powers and gave the courts power to suspend or prevent publications being issued.

The Constitution 1930 was abolished by royal Decree (No 67 of 1934) and the 1923 Constitution was re-instituted by another decree in 1935.  On 15 December 1952 following the July Revolution, the Constitution of 1923 was abolished and a temporary Constitution was established on 15 February 1953.

Article 8 of the 1953 Constitution provided that: “The leader in the Council of the Leaders of the Revolution takes over the sovereign authority duties especially the arrangements that he sees are necessary for protecting the revolution and the system for achieving its goals”.  

The Current Emergency Law

The Constitution of 1958 empowered the President to announce a state of emergency.  At this time, the current Emergency Law (No 162 of 1958) was introduced.  The Emergency Law provided that a state of emergency could be declared whenever public security or public order were endangered, whether by the threat or actuality of war, internal disturbances or by natural disasters. Whilst the previous Martial Law (No 15 of 1923) limited the declaration of emergency to two circumstances (invasion or internal disturbances), the new Emergency law widened the scope for cases for which a state of emergency could be declared.

The current Emergency Law grants the authorities extensive exceptional jurisdictions.  Upon a declaration of a state of emergency, Article 3 provides that the President may take “appropriate measures to maintain security and public order” through imposing restrictions on individuals’ freedom to meet, travel and reside in particular places. Further, the Emergency Law provides for wide powers of arrest, detention and search, regardless of the protective provisions in the Criminal Procedures Code.[3] In this way, the Emergency Law violates a number of constitutional guarantees such as personal freedom (Article 41), the sanctity of the house (Article 42), freedom on residence and travel (Article 50) and the freedom of association and gathering (Article 54).  Additionally, such restrictions violate the International Covenant on Civil and Political Rights (ICCPR) to which Egypt is a party. For example, the right to personal freedom (Article 29), freedoms of residence and transportation (Article 12) the sanctity of privacy (Article 17) and the right to peaceful assembly (Article 21).

The Emergency Law also places severe restrictions on the freedom of expression.  Article 2 empowers the military ruler (or his representative) to censor, seize confiscate and suspend the publication of letters, newspapers, magazines and all other means of expression. Furthermore, it permits the invasion of the private life of citizens; this includes their letters and telephone calls; this clearly violates the right to privacy contained in the Constitution (Article 45) and the freedom of opinion and expression (Article 48). The same power also breaches Articles 17 and 19 of the ICCPR.

Another concern is the role played by the Emergency Law in denying fair standards to citizens in relation to arrest and trial.  The Emergency Law gives the Executive branch broad power to arrest and detain suspects considered a “danger to security and public order” and those who fail to comply with emergency law rules.[4] Further, the Emergency Law has authorized the creation of exceptional courts to hear matters arising under emergency laws.  Additionally, military courts have been established by military decree. Exceptional courts do not provide the same protections to individuals as would ordinary courts.  For example, the accused has no right of appeal; the prosecutor has greater powers than in ordinary circumstances and the Executive power plays an important role in ratifying judgments, in the composition of the courts and in the distribution of jurisdiction.[5]

The exceptional courts consist of the Summary State Security Court (Emergency) and the High State Security Court (Emergency)[6]. In relation to the Summary court, the President is empowered to order that such a court be formed of a judge and two military officers. He may also decide that the court be formed entirely of military officers.  In the High security court, the President may order that it be formed of three counselors and two military officers.[7]  Such interference by the Executive arm of government in the judiciary, infringes constitutional and international guarantees regarding the separation of powers (see Articles 165-173 Constitution and Article 14 of the ICCPR).

Emergency Law (Article 9) also provides the President with the authority to delegate cases covered by general laws to the exceptional state security courts. This denies individuals their right to fair trial standards including the right to a hearing before an independent and impartial judge (see Article 68 of the Constitution and Article 14 ICCPR). [8]

Additionally, the administrative courts do not have the power to invalidate or review laws related to the state of emergency. The removal of such judicial review erodes the rule of law and an important check on the accountability of the executive arm of government.

Moreover, what is equally concerning, is the gradual blending of emergency-type provisions into the ordinary legislative framework over the past 20 years.  For example, the People’s Assembly has made amendments to a number of laws such as the Law No 95 of 1980, which placed restrictions on political opposition groups, and the 1992 law on combating terrorism which removed certain protections for the accused from the Criminal Procedures Code.

Despite the strong local and international pressure to end the state of emergency in Egypt, the law remains intact. As pointed out by the UN Committee Against Torture, the Emergency Law represents a major obstacle in implementing international human rights principles in Egypt.