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THE EGYPTIAN STATE OF EMERGENCY IN THE CONTEXT OF HUMAN RIGHTS STANDARDS

RALF SALAM* ABSTRACT This article is about the state of emergency in Egypt. The article will examine the Egyptian constitutional articles, with special focus on those articles that guarantee the human rights. The protection and promotion of human rights in Egypt has become difficult, as the state of emergency gives the executive, particularly the President, the Military and the police, extra-ordinary powers, allowing them to arrest and detain individuals without being bound by the code of criminal procedures, and that, among several other factors that have led to human rights violations in Egypt is the lack of a complete and sustainable, official state structure where there is:    

transparency; effective extension of state control (through courts, police stations, and local governments) in all governorates; cooperation and coordination between ministries; and Socioeconomic development.

This is to say that, in my opinion, the state of emergency may be part of the reason why human rights violations occur in Egypt, but it lies within a much broader framework of factors that contribute to the same problem. Keywords: States of emergency-International Law-Human rights-History-Politics

I.

INTRODUCTION

Despite the Egyptian legal system being based on civil traditions, one may note that the Egyptian Emergency provisions have been copied from English Martial Law. The historical reason for this is that at the start of the First World War 1 Egypt was under British occupation 2 and the British armed forces‟ *Author, Legal Consultant. Former Secretary General of the European African Human Rights Organization. MA International Law, University of Malta. PhD Candidate International relations EMU. ralfsalam.com, ralfsalam.eahro.org. 1 In 1914.


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commander in Egypt declared Martial Law, which was enforced in all Egyptian territories, including Sudan, until the end of 1922.3 In 1939, following the outbreak of World War II, King Farouk 4 declared Martial Law and appointed Prime Minister Ali Maher to act as the Military governor.5 In May 1945, after the end of World War II, Martial Law was lifted, but, in May 1948, it was re-imposed because of the war in Israel (Palestine, at that time 6 ). In April 1950, Mustafa el Nahas Pasha suspended Martial Law, yet it remained imposed, in part, for one year subject to renewal.7 In practice it remained only in the border areas with Israel.8 On the 26th January 1952, Martial Law was declared for the fourth time by King Farouk and Prime Minister Mustafa el Nahas Pasha was appointed as the Military governor.9 A military coup against King Farouk took place in June1952 and then, in 1954, Gamal Abdul Nasser seized power from President Mohamed Nageb. Nasser immediately started to prepare for the replacement of Martial Law with another exceptional law, called Emergency Law No. 533 /54.This, in its turn, was replaced by another exceptional law, this time called Law No. 162/1958, which gave the President the powers vested in the military governor under the previous law. 10 Later it was amended and called Emergency Law 162/196, which remained in force until May 1980, 11 when it was suspended by President Anwar Sadat. 12 The suspension of the state of emergency lasted until the day of his assassination on October 6th 1981. Following the assassination of Sadat, the state of emergency was re-imposed, lasting until November 2012, 13 when it was lifted by the newly elected President, Mohamed Morsy. On 3rd June 2013, the state of emergency was restored by the military commanders after the Army overthrew Morsy. At that time, state of emergency was not declared officially but de facto, since all of its characteristics, and administrative and legal procedures were kept in place. From the above brief history of the Egyptian emergency legislation it can be noted that the Egyptian authority has applied the provisions of state of emergency,

2

Egypt was occupied by Great Britain from 1882 to 1952; Sudan was a part of Egypt and obtained its Independence from Egypt in 1956. 3 ibid. 4 King Farouk ruled Egypt between 28 April 1936 and 26 July 1952. 5 ibid. 6 The State of Israel. 7 Harold Hindle James, Personal Report on Riots in Cairo, 26 Jan 1952, Transcribed and Annotated by John Barnard, May 2009, http://www.johnbarnard.me.uk/docs/HHJ_Docs/HHJ-181%20Cairo%20Riots%201952%20Transcript.pdf.last visited 12.05.2012. 8 ibid. 9 ibid. 10 Egyptian Emergency Law 162 of 1958. 11 Nasserâ€&#x;s Death, on September 28, 1970, 12 October 6th 1981. 13 Egyptian Emergency Law 162 of 1958.

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almost continually, for more than 60 years.14 In order to determine the nature of the Egyptian state of emergency it is important to investigate the extent to which it is consistent with the rule of law, politics, and human rights standards.

II.

THE COMPETENT AUTHORITY TO DECLARE STATE OF EMERGENCY ACCORDING TO THE EGYPTIAN POLITICAL AND LEGAL SYSTEMS

Article I of Egyptian Law No 162/1958 regulates state of emergency. The Article stated that „a State of Emergency may be declared whenever the security or the public order of the country is at risk, whether it is of a war … a strike, epidemic, or of the occurrence of internal disturbances or General Disasters‟.15 In this respect, the Article is compatible with the Egyptian Constitution which, in Article 154, sets out the procedures regulating the declaration of state of emergency.16 According to the Egyptian legal system, the Constitution is the supreme law and it is only permissible to derogate from some of its provisions during the declaration of state of emergency.17 According to Article 156 of the Constitution, the power to impose state of emergency is vested in the President. 18 The text states; The President is to declare state of emergency in the manner prescribed by the law and the Parliament is to approve the declaration within 7 days. The declaration of a state of emergency should be for a limited period that may not exceed 3 months, and may not be extended unless with the approval of two thirds of the Parliament.19 In general, and according to the above article, state of emergency should follow certain procedures. Thus; 14

Egypt is not the only country to impose state of emergency, Israel imposed State of Emergency since its founding in 1948. Syria has also lived in the shadow of emergency since 1963, Algeria since 1992 and Turkey from 1971 up until 2002. 15 Act No 162/1958 art 1. 16 Egyptian Constitution art 154, Egyptian Official Gazette (18 January 2014). 17 Egyptian Constitution (1923) art 155; See also the Egyptian Constitution (1930) art 144. 18 ibid. 19 The Egyptian Constitution. Article 154.

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i. ii. iii.

The President of the Republic proclaims it.20 It should be reviewed by the Parliament to express its opinion on approval or rejection.21 The requests are for a limited period and may not be extended unless with the consent of Parliament.22

One can note that Article 154 of the constitution borrowed the wording of Article 148 of the 1972 Constitution, except for the time limit for referring the declaration for parliamentary approval. Article 148 of the 1972 Constitution stated; [T]he declarations should be presented to the Parliament within 15 days following the announcement of the declaration by the President.23 In the articles of both the 2014 and 1972 constitutions, the declaration of state of emergency had to be for a limited duration which could not be prolonged without parliamentary approval.24 However, the political relationship between the Egyptian President and the Parliament, though the President could indeed practice influence over the Parliament, as many members were simply loyal to the regime, meant that it was easy for him to obtain parliamentary approval. It should be borne in mind that the Egyptian Constitution does not oblige the President to specify the reasons for declaring a state of emergency.25 The legislature allowed for a broad interpretation of the text of the Constitution with regard to the declaration of an emergency, which could be described as „characterized by generality‟. Hence; i. ii. iii.

The legislature did not indicate what is meant by war. Is it a war in which Egypt is a party, or any other war which threatens the security and order of Egypt? With regards to disasters and epidemics, the legislature did not restrict the declaration of a state of emergency to those places where such disasters and epidemics had occurred. There is a lack of clarity in some expressions, such as in the use of the term “risk situations” to justify the legitimacy of a declaration, which leaves such expressions open to a wide range of interpretations.

Moreover, the current Egyptian Constitution26 does not include a provision similar to Article 155 of the 1923 Constitution which prohibited derogation from 20

ibid. ibid. 22 ibid. 23 The 1972 Constitution, Article 148. 24 Egyptian Constitution, Egyptian Official Gazette (26 March 2007). 25 Act No 162/1958 art 1. 26 Egyptian Constitution, Egyptian Official Gazette (18 January 2014) 21

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some of the Articles of the Constitution during the declaration of state of emergency (called Martial Law in the 1923 Constitution). It is significant no such prohibition of derogations is written into the current provisions, especially those relating to the emergency period.27

III.

EXECUTIVES POWERS WITHIN THE EGYPTIAN STATE OF EMERGENCY

The provisions of state of emergency grant the Egyptian executive a wide range of political and legal powers. 28 It vested the power to declare a state of emergency and to take the appropriate measures to maintain security and public order in the President.29 Among these measures are powers; i.

ii.

iii. iv. v. vi.

To restrict freedom of association, to restrict traffic in certain areas and times, to arrest suspects dangerous to security and public order, and to detain persons and inspect places without being bound by the provisions of the Code of Criminal Procedure.30 To monitor communications, to control telephones, newspapers, pamphlets, publications, and all means of expression or advertising prior to publication, to seize, confiscate and close printing places, and to censor newspapers, publications, and media confined to matters related to public safety or national security.31 To determine the opening and closing times and dates of public places, and to close shops completely or partially, and to take possession of any movable or real estate properties.32 To evacuate and isolate areas, and to control the transportation system between different regions.33 To withdraw licenses to use arms, ammunition, explosive materials, or fireworks of different types and to command, control and close weapons and ammunitions stores.34 To assign any person on behalf of the President to perform the said above measures.35

The above mentioned measures represent restriction to the freedom of assembly and freedom of movement, it authorize the executives to arrest any persons under the pretext of suspicion of danger to the public security and to detain and search persons and places without complying with the normal rules of

27

Memorandum 5631/317(State Security Emergency Damanhour). 2005. The Egyptian Emergency Law no 162/1958 amended by Law no 37/1972: Article 3 29 The Egyptian Emergency Law No. 162 of 1958 amended by Law No. 37 of 1972. 30 ibid. 31 ibid. article 3. 32 ibid. 33 ibid. 34 ibid. 35 ibid. 28

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Criminal Procedure.36 Such measures represent a flagrant violation of the rights and guarantees enshrined in Articles 54, 62 and 73 of the Egyptian Constitution dedicated to personal freedom37, freedom of residence and mobility38 and freedom of assembly respectively. Likewise, it represents a violation of the rights enshrined the ICCPR, including Article 9 on personal freedom, and Articles 12 and 21 on the freedom of movement and the right of peaceful assembly respectively.39 In 2009, the Egyptian authorities introduced an amendment to Article 179 of the 1972 Constitution.40 This Article gives the President the authority to refer „any crime of terror to any judicial body of the President‟s choice‟ including military courts.41 The article was proposed to be added to the Egyptian constitution, but it was to be separate from the articles related to the declaration of state of emergency, so that the President would have the power of referring citizens to military courts without the need to declare state of emergency.42 This amendment aroused concerns about its impact on the rights and freedoms of citizens.43

IV.

HUMAN RIGHTS STANDARDS WITHIN THE EGYPTIAN LEGAL SYSTEM

The Egyptian legal system has several human rights guarantees, with some exceptions when it comes to implementing those standards. The high level of the human rights statutes in the Egyptian system are due to the level of professionalism that the Egyptian legislators possessed, since most of the legislators had acquired their qualifications from France and had, therefore, copied most of the French statutes into the Egyptian legislation. The guarantee in the Egyptian legal system of the right to freedom from any liberty restrictions has been confirmed in many articles of the Egyptian Constitution. 44 This provides an adequate safeguard to citizens. It represents personal freedom and the citizen‟s right to security and dignity.45 Some of the rights guaranteed under Egyptian constitution could be summarized as follows; 36

The Egyptian Emergency Law No. 162 of 1958 amended by Law No. 37 of 1972. Art 5, 6. Egyptian Constitution art 54, Egyptian Official Gazette (18 January 2014). 38 ibid art 62. 39 ICCPR Articles 9,12 and 21. 40 Egyptian Parliament, 'Egyptian Parliament Proposal of the Amendment to Art 179 of the 1972 Constitution, Parliamentary Sitting Note 12th of May' (Egyptian Parliament 2009). 41 ibid. 42 Statement By M Awa, to „Alyoom Elsabe‟ Newspaper (22 September 2011).1. 43 ibid. 44 Egyptian Constitution, Egyptian Official Gazette (18 January 2014) arts 34, 40, 51-55, 57-60, 62-65, 67, 70, 73-76, 95-99. 45 ibid. 37

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A. Inspection of Houses The Egyptian legislation has established some important rules to guarantee that; houses and their inhabitants must be respected, and that; houses must not be entered or inspected except by a judicial warrant.46 Unless there is a dangerous or urgent alert, such houses are to be inspected only with a search warrant issued by the court, indicating the name of the house, the reason, and the time.47 Furthermore, the inspection must be for specific purposes permitted by law, hence, the suspected crime must be punishable by law, or the presence of the accused in the house must be expected, or sufficient evidence for the charges must be available, or someone must have indicated that evidence related to the crime may be found in the house.48 Pre-determined searching of a group of houses is considered legally null and void and the authority is only to inspect houses, investigate, and „control securities, weapons that were used in the commission of the offence, and any useful evidence in revealing the truthâ€&#x;.49 Moreover, the legislation requires that the accused is present in person, during a home inspection; otherwise the presence of two adult witnesses, who may be relatives or neighbours of the accused, is necessary. 50 As an exception, Egyptian legislation allows investigators to disregard this condition in the event of an investigation of certain offences detrimental to the security of the State.51 The Egyptian legislation also authorizes the search and arrest of individuals in the case of the commission of felonies or misdemeanours, or the commission of, or attempt to commit, criminal offences punishable by imprisonment for a period exceeding three months.52 In such cases, and if there is sufficient evidence, the accused should be referred to a competent court and, if the accused was not present at the search address, then the prosecutor may issue a warrant to bring him to trial in front of the court.53 Meanwhile, if the investigations indicate a certain person to be involved in a crime, 54 the public prosecutor is to issue an arrest warrant only for that particular person.55 The investigator must be in possession of the arrest warrant, giving the „name of the accused, his occupation, place of

46

Egyptian Constitution art 58, Egyptian Official Gazette (18 January 2014). ibid. 48 Egyptian Code of Criminal Procedures art 91. 49 ibid. 50 ibid arts 51, 91. 51 Egyptian Parliament, 'Law No 37 Of 1972' (Egyptian Official Gazette 1972). Amending some provisions relating to the guarantee of freedoms of citizens in art 5 para 2. 52 Egyptian Code of Criminal Procedure art 46 para 2, arts 30, 34. 53 ibid art 35, para1. 54 Egyptian Constitution arts 54, 55, Egyptian Official Gazette (18 January 2014). 55 ibid. 47

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residence, the charge brought against him,56 the date of the issue of the warrant, the signature of the judge and the official seal on the warrant of arrest‟ and signed by a public authority officer, to indicate that force may be used to bring him before the judge should he refuse, voluntarily, to attend the court sitting.57 One could note that the above legislation gives the public prosecutor the power to issue search and arrest warrants, but places limits on that authority. The search should be only for the accused and not for anyone other than the accused, in order to protect the public from any abuses by the authority. „Moreover, the legislation stresses that only if it becomes clear from strong evidence relating him [the accused] to the crime‟, the public prosecutor, in order to search and arrest the suspected person, should obtain permission from a magistrate following inspection of the case documents.58 The legislation authorizes a special exemption from the need to obtain such permission if the prosecutor is investigating a crime listed under the categories of crimes harmful to security of the State, or which involves the embezzlement of public money under the Penal Code.59 B. Monitoring and Recording of Communications and Conversations With regard to the monitoring and recording of communications and conversations, the Egyptian legislation states that; „private lives are to be respected, including mail, messages, electronic mail, phone conversations and other means of communication, their secrecy is guaranteed and cannot be read or controlled except by a judicial order and according to law.‟60 The Code of Criminal Procedures stipulates that the conversations and personal phone calls of private people are their affairs and should be allowed without fear of being passed to a third party and must be safe from curiosity.61 Undoubtedly, a sense of personal security in conversations and personal telephone calls is an important guarantee for the exercise of private life through these means.62 This privacy will be at risk of violation from state authorities, if these have the opportunity and the means to monitor and record such conversations.63 Moreover, Egyptian legislation states that; 56

Egyptian Code of Criminal Procedure art 127; See also ; Ayman Abd El Hady Mohamed Hekal and MariePaule Lucas de Leyssac, La Prescription De L'action Publique En Droit Français , Droit É gyptien Et Droit Musulman ([sn] 2001).210 57 ibid. 58 Egyptian Code of Criminal Procedure art 206. 59 ibid art 206 bis. 60 Egyptian Parliament, 'Law No 37 Of 1972' (Egyptian Official Gazette 1972). 61 Egyptian Code of Criminal Procedure art 95. 62 Fathi Sorour, The Mediator in the Code of Criminal Procedure (House of the Arab Renaissance 1996). 581. 63 ibid.

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Any unauthorized tapping, control of, or access to, communications and correspondence, or the recording of conversations are breaches of law punishable by imprisonment for not more than three months.64 The legislation gives the prosecution the right to intercept these communications only after obtaining permission from a magistrate.65 This permission is limited to a period not to exceed thirty days, although the permission may be renewed for further periods by following the same procedures as are necessary to obtain the original permission. 66 In exceptional cases the prosecutor is to be given such permission, in the event of investigation into one of the felonies set forth in the sections of the criminal code as being offences detrimental to the security of the State from inside or outside the country. 67 In late 2002, during discussion at the Telecommunications Regulatory conference, the Egyptian government prepared to introduce an Act to regulate telecommunications. 68 This Act was intended to restrict the protection of the confidentiality of communications and correspondence in the articles of the Egyptian Constitution. The Act was to allow the national security services to monitor telecommunications and networks. 69 The Egyptian government claimed that the Act was necessary in order to achieve the requirements of national security.70 During the discussion of the Act in the Egyptian Parliament, the civil societies presented some amendments to the government proposal and suggested that the text should include the words, "Observance of the private lives of citizens is to be protected by the law". The inclusion of these words in the Act has restricted the final wording of the government proposal.71 C. Restriction of Freedom The Egyptian Constitution states that the rights of detainees should not be neglected or compromised in any way.72 The Constitution guarantees certain rights for persons whose rights of freedom have been restricted, as follows; 64

Egyptian Code of Criminal Procedure art 95. ibid. 66 ibid. 67 ibid. art 206 bis. 68 Telecommunications Regulatory Act 10/ 2003 (Egyptian Official Gazette 2003). 2-7. 69 Egyptian Initiative for Personal Rights, 'In the Discussions on the Draft Telecommunications Law' (2002). 70 ibid. 71 Telecommunications Regulatory Act 10/ 2003' (Egyptian Official Gazette 2003) 2-7; See also Egyptian Initiative for Personal Rights, 'In the Discussions on the Draft Telecommunications Law' (2002). 65

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„Every citizen who is arrested or detained or whose freedom is restricted in any way shall be treated in order to preserve his dignity, and shall not be harmed physically or morally, and may not be detained or imprisoned in places not defined by the Prisons Acts, and shall be detained in suitable, good and healthy places.73 A confession that is proved to have been made by a person under pressure or under threats shall be considered null and not reliable.74 The Egyptian Constitution also states that; Every attack on the rights and freedoms guaranteed in the Constitution is to be considered a crime.75 It also confirms that; „any kind of torture is a crime that is not estopped by limitation‟. This Article confirms that the constitutional legislation has provided an even stronger guarantee, making an attack on personal dignity a crime which is not affected by limitations, including time limits.76 The constitution does not permit the arrest, search or detention of individuals, except in cases of inflagrante delicto. The Court of Cassation has confirmed many dicta that; „justice does not encroach on the freedoms and rights of citizens‟.77 Personal freedom is a natural right which shall not be derogated, except in the case of in flagrante delicto, no one may be arrested, searched, detained or his freedom restricted in any way, nor may he be prevented from freedom of movement except by a necessitated order issued for an investigation, and the order is to be issued only by a competent judge or a Public Prosecutor, in accordance with the provisions of law.78 The text is clear; there may not be an arrest or search or seizure of a person, except when three conditions all exists; i.

Need to investigate.79

72

Egyptian Constitution art 55, Egyptian Official Gazette (18 January 2014). ibid. 74 ibid. 75 ibid, Article 52. 76 ibid. 77 The Egyptian Court of Cassation: App no 29,390 (1959) Sess 19 November1997; App no 179 (1960) Sess 19 February1991; App no 46,438 (1959) Sess 21 October 1990; Appeal no 11,226 (1959) Sess 11 March 1990. 78 Egyptian Constitution arts 54, 55, Egyptian Official Gazette (18 January 2014) 79 ibid. 73

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ii. iii.

Preservation of public security.80 The order of the judiciary.81

The above guarantee was, furthermore, confirmed by the Egyptian Code of Criminal Procedure, which states that; „the suspect may be arrested and his belongings may be searched, only to obtain evidence of the current crime; if the seriousness of the crime committed does not necessitate the search, the inspection may not take place‟.82 The search or arrest of the suspect should be done in a way that preserves the suspect‟s dignity and does not harm him physically or morally.83 In the event that the suspect is a female, she may not be searched unless by a female.84 By Article 30 of the Code of Criminal Procedure, the Egyptian legislation defined in flagrante delicto as; Where the perpetrator is caught in the act of committing the offence, or after the commission of the crime the perpetrator caught by the victim, or after the occurrence of the offence the perpetrator was followed and caught by a public figure, or was found after the occurrence of the offence with a weapon or other objects which indicate him as an actor or as an associate to the criminal act, and if there is sufficient proof confirming his association to the crime committed.85 The Egyptian legislation has provided the accused with some other guarantees, including; i.

ii.

The arrest period, to count from the moment of the arrest of the accused,86 during which his freedom of movement is restricted, may not exceed 24 hours … the accused must be presented in front of a magistrate before the end of this prosecution time limit.87 The investigator, after the interrogation of the accused and the response of the accused to the accusation brought against him, may order the imprisonment of the accused, or the restriction of his freedom of movement (house arrest, or prohibition from visiting specific locations), if the incident which is being investigated is a

80

ibid. ibid. 82 Egyptian Code of Criminal Procedure, art 50. 83 Egyptian Constitution art 55, The Egyptian Official Gazette (18 January 2014). 84 Egyptian Code of Criminal Procedure art 46 para2. 85 Article 30 of the Code of Criminal Procedure. 86 ibid, art 36. 87 ibid. 81

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iii.

felony, or a misdemeanour punishable by imprisonment for a term not less than one year, but only if the evidence obtained is sufficient. 88 Such restrictions may also be ordered in the case of a crime punishable by execution, or where there are fears that the accused will escape, or interfere with the investigation, either by influencing the victims or the witnesses, or tamper with the evidence, or there is a fair chance that the accused might make arrangements with the rest of the perpetrators to change the evidence or blur its features.89 Similarly, if the accused is considered to be dangerous and to present a serious security risk, or if he might provoke threats to public order which may result in the commission of more serious crimes, or if he has no known fixed address of residence in Egypt, and the crime is considered to be a felony, or a misdemeanour punishable by imprisonment, detention of the accused may be permitted.90

According to the Egyptian Code of Criminal Procedures,; Preventive custody may not exceed six months in the case of misdemeanour, eighteen months in the case of felony, and two years if the sentence prescribed by law for the crime is life imprisonment or the death penalty.91 The law regulates the right of the accused to appeal against the provisional detention, or to appeal against a decision to prolong it, and it also gives the prosecutors the right to appeal against release orders.92 Amongst other guarantees that the Egyptian penal code provides to the accused, detainee, arrested, or sentenced person, in cases where their freedom is being restricted are; i. ii.

iii.

Detained, arrested, or sentenced persons are to maintain their dignity and the integrity of their body. It is to be considered an offence if a person is arrested unjustly.93 The arrested or detained person should be informed of the reasons of his arrest or detention within 24 hours of his arrest, and the reasons should be sent to the competent public prosecutor who should question him within 24 hours from the time of his arrest and then order either his release or preventive custody.94 The arrested person should have the right to appeal the arrest.95

88

ibid. ibid. 90 ibid arts 134, 201. 91 ibid art 143. 92 ibid. 93 Egyptian Penal Code no 58/1937. 94 ibid art 36. Egyptian Code of Criminal Procedure art 139. 95 ibid. 89

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iv. v. vi.

vii. viii. ix.

x. xi.

xii.

xiii. xiv.

The arrested person should have the right to be represented by a defence lawyer.96 The accused shall not be detained in prison unless an order is issued by the Attorney General together with a statement of implementation of judicial decisions.97 The detention of any person in prison is prohibited, except by an order signed by the competent authority. Prison wardens are not to keep prisoners in prison after the expiration of the period specified in the judicial order.98 The accused should not to be imprisoned except in the prison designated for that purpose.99 The prosecutor and representatives of the First Hall Court and the Appeal Court are to inspect prisons and to ensure that no persons are being detained illegally.100 The prosecutor and representatives of the First Hall Court and the Appeal Court should familiarize themselves with the registers of the prisons, and the arrest and detention orders, communicate with prisoners, and hear their complaints.101 The directors and the staff of prisons are to provide proper assistance to the prosecutor and to the representatives of the First Hall Court and the Appeal Court to facilitate access to the required information.102 The detained person has the right to complain, either verbally or in writing, to the warden of the prison, and to demand arbitration by the Attorney General; the prison warden must process these requests and pass them to the responsible judicial authority and record them in the prison register.103 A person detained illegally, or in a place not intended for official imprisonment, shall notify one of the members of the public prosecutor; once the public prosecutor has received the complaint, he becomes obligated to immediately release the detainee and conduct an investigation.104 A person, who arrests or detains others without authority is to be charged in front of a criminal court.105 Every public officer who refuses to implement a judicial decision shall be punished by imprisonment, since the text of the second paragraph of Articles 123 and 281 of the Egyptian penal code states that there „shall be punished by imprisonment, any public official who does not execute a judgment orderâ€&#x;. 106 The Articles also authorize the judge to reduce the punishment to a fine.107

96

ibid. ibid art M/478. 98 Article 41/2 of the Emergency Law. 99 The Egyptian Code of Criminal Procedures art 141. 100 ibid art 42. 101 ibid. 102 ibid. 103 Egyptian Detention Regulations art 43/1. 104 ibid art 43/2. 105 ibid. 106 Egyptian Penal Code articles 281, and art 123. 107 ibid art 280. 97

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xv.

A person arrested or detained is to be given „the right to contact any person of his choice as regulated by law‟.108

V.

THE RIGHTS OF DETAINEES UNDER EGYPTIAN EMERGENCY LEGISLATION

The Emergency Law ensures that the detainee has the following rights; i.

The Detainee to be notified in writing of the reasons for his arrest or detention.109 ii. The Detainee to have the right to inform a person or counsel of his arrest.110 iii. The Detainee to have the right to appeal against the decision of detention after 30 days from the date of his arrest.111 iv. The Detainee to have the right to submit a petition to the Supreme State Security Court, without a fee.112 v. The State Security Court is to decide the appeal and make a substantiated decision within 15 days of the detainee‟s appeal submission.113 vi. The Minister of the Interior has the right to challenge the court's decision within 15 days from the date of issue of a warrant for the release of the Detainee.114 vii. The Detainee to have the right to demand that the appeal is referred to another military or State Security Court within 15 days.115 viii. The Detainee to have the right to submit a new complaint whenever 30 days have passed from the date of the rejection of his previous complaint.116 In legal practice, according to the above Articles, the detainee may remain in detention for several months without being sent to trial. Although the emergency legislation provides for the accused to be informed of the reasons for his arrest or detention, the legislation does not state when the information has to be given, which could lead to the accused remaining in custody for months, or even years, without knowing the reason for his arrest. Further, many of the above provisions are not applied in practice by the military and State Security Courts, since the detainee may not have access to his lawyer or any other person. Sometimes court documents will show that a detainee has been released, but he continues to be detained until a new arrest warrant has been issued, after which he may be

108

Egyptian Constitution art 54, The Egyptian Official Gazette (18 January 2014) Egyptian Emergency Law 162/1958. Article 3 bis. 110 ibid. 111 ibid. 112 ibid. 113 ibid. 114 ibid. 115 ibid. 116 ibid. 109

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detained in a special place where humane treatment is not available and, instead, torture practices frequently occur.117 It may be noted that according to the provisions of the Emergency Law, the State Security Court should decide an appeal within fifteen days from the date of the petition, after examining the statements of the arrested or detained. 118 However, the appeal could be heard with or without the presence of the accused and, therefore, these procedures are not in accordance with the transparency rules of legal procedure, since the appeal could take place in the absence of the detainee and without hearing his statements or his defence.119 Moreover, if the State Security Court decides to release the appellant, this cannot take effect unless the President or his representatives do not object within fifteen days from the date of the issue of the release decision.120 This Article was amended by Article No. 164 of 1981 which reduced the detaineeâ€&#x;s rights. The amended Article stated; Every person who is arrested or detained may appeal his arrest if six months have passed from the date of his arrest or detention without him being released, and the complaint shall be submitted to the President of the Republic or to his authorized representative, and the arrested person, whether the complaint is accepted or rejected, has the right to file a new complaint whenever a new six months have elapsed from the date of filing his complaint.121 Another amendment which reduced the constitutional guarantees of the accused was made in the amendment of Article 3 bis of Act No. 50 of 1982, whereby the Minister of the Interior was given the right to object, within fifteen days, to a decision of release issued by the court.122 In legal practice this means that the accused might remain in custody for as long as the executive wants since, although he could file a new appeal every fifteen days, the Minister could object to his release every time and this could go on for years.123 The long period during which a state of emergency has existed in Egypt has resulted in a number of consequences to the right of citizens to litigate in front of a normal judge, since emergency provisions permit the trial of citizens in military courts, a practice which has been used widely. Acts No. 162 of 1958 and 105 of

117

UN Human Rights Committee, of the 5th Periodic Report of Spain' (UN Human Rights Committee 2007). The Egyptian Emergency Law, Article 3 bis amended by Law 37 of 1972. 119 ibid. 120 ibid. 121 Amendment of Law 164 of 1981. 122 See the amendment of Article 3 bis, Law No. 50 of 1982. 123 ibid. 118

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1980 authorized the establishment of special courts, including State Security Courts, by orders of the President of the Republic.124 Among the courts which have been established under the above-mentioned Acts are military courts and special courts, sometimes called “State Security Courts” or “State Emergency Courts”, which process cases of crimes falling under the emergency provisions.125 The right to create these courts, and to refer cases to them, is assigned to the Egyptian President and his representatives. Each of these courts comprises a district judge or two officers of the armed forces. 126 Meanwhile, the Supreme State Security Court is formed from three legal consultants and two military officers.127 According to the above mentioned Acts, the President is authorised to transfer to the State Security Courts all claims and appeals pending before any other judicial authority. 128 Also, the President has the power to abolish the State Security Courts by ordering the termination of the state of emergency. 129In the opinion of the author of this article, the power the Presidents possesses could be considered as a sort of elimination of constitutional provisions, since the exception legislation is placed above the rights provided by the Constitution. The principles governing jurisdiction are predetermined by law, in accordance with the objective abstract criteria established in the Egyptian Constitution 2014 (Articles 54, 55, 184, 185, 186, 187, 188 and 189130). Those articles provide the judiciary‟s terms of reference and the conditions and procedures for the appointment of the judiciary‟s members.131Meanwhile, it is to be noted that the emergency legislation does not specify in advance, a clear, fixed, list of the crimes which the State Security Courts are to handle.132 The Egyptian Emergency legislation leaves the specification of those crimes unclear, in order to give the courts more freedom to try any crimes, including crimes of a civil nature.133 Contrary to many of the safeguards mentioned in the Egyptian Constitution and in the Egyptian Code of Criminal Procedures, the Egyptian Emergency legislation authorises „the arrest of suspects for unlimited periods and inspection of persons and places without being bound by the provisions of the Code of 124

The Egyptian Emergency Law 162 of 1958. Egyptian Official Gazette (27 September1958). ibid. 126 ibid art 9. 127 ibid. 128 ibid art 3 bis. 129 ibid. 130 Egyptian Constitutional Committee, Egyptian Parliament, 'Egyptian Constitution, (Egyptian Official Gazette 2014), articles 54, 55, 184, 185, 186, 187, 188 and 189. 131 ibid. 132 Egyptian president, 'Decree No 1, 22 October, State Security Courts' (official Gazette 1981; See also Egyptian Emergency Law No. 162 of 1958' (Egyptian Official Gazette 1958). Art 9. 125

133

ibid.

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Criminal Procedure‟, 134 thereby overthrowing all the safeguards in such procedures set out in the Constitution.135 In its efforts to establish a permanent state of emergency, the Egyptian Government, in 2007, presented a proposal to alter Article 179 of the Egyptian Constitution, to give security forces permission to search houses without the need to comply with the provisions of the Code of Criminal Procedures.136 The proposal also aimed to establish new special courts, with new names, and to continue the power to refer civilians to military courts even after the abolition of the state of emergency. In this proposed amendment, the Egyptian Government intended that the power should be directly derived from an article of the Constitution and not from the emergency legislation. 137 Consequently, it would not be possible to change the condition, even though Parliamentary Acts, since the new article would take away from the legislature the power to restrict the right of the President to refer any person to these extraordinary special courts.138 More complications surfaced in the 2014 Constitution, wherein, again, exceptional and military courts were given greater power to try civilians without any restrictions. 139 This may be seen in Article 204, which contradicts other provisions of the same Constitution,140 bringing into question the credibility of the Constitution itself. Article 97 of the Constitution stated that „No one should be tried except in front of his natural judge, and that exceptional courts are forbidden‟,141 Meanwhile, Article 204 of the same Constitution permits the armed forces to try civilians before military courts.142

VI.

CONCLUSION

This article acknowledged the fact that a defence of supreme national interest, such as the preservation of the safety and stability of Egypt, is the argument which the executive usually raise as justification for the use of exceptional legislation. It can be seen from this article, that the Egyptian executive enacted laws to maintain their political power in the face of political change, stating that exceptional legislation was essential for the preservation of other interests, thus circumventing the normal legal status quo. The arguments, as been 134

Egyptian Emergency Law 162 of 1958. art 3; See also Egyptian Presidential Decree no 4 of 1982. Egyptian Constitution art 45. 136 See the parliamentary proposal to amend of article 179 of the Egyptian Constitution, DEC/s546. 2009. 137 ibid. 138 ibid. 139 Egyptian Constitution art 204, Egyptian Official Gazette (18 January 2014). 140 ibid. 141 ibid art 97. 142 ibid. 135

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analyzed in this article, show that Egypt use the extraordinary powers enjoyed by their executive branches to suppress many human rights guarantees.

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THE EGYPTIAN STATE OF EMERGENCY IN THE CONTEXT OF HUMAN RIGHTS STANDARDS  

This article is about the state of emergency in Egypt. The article will examine the Egyptian constitutional articles, with special focus on...

THE EGYPTIAN STATE OF EMERGENCY IN THE CONTEXT OF HUMAN RIGHTS STANDARDS  

This article is about the state of emergency in Egypt. The article will examine the Egyptian constitutional articles, with special focus on...

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