May 28th, 2008 by Editor
During the session of People’s Assembly concerning the discussion of the decision taken by the President to extend the work of Emergency Law No.131/2006 ,the reporter of the general committee of people’s assembly mentioned that government has determined the needed period of time to prepare for the new terrorism law and its amendments. If the government succeeds in issuing a new law before within two years, the stat of emergency will come to an end.
With the lack of political interest that afflicts Egyptian society and the current economic crisis, the end to the state of emergency is publicly demanded. The Emergency Law is considered the main source for violations against human rights.
Egypt experienced Martial Law for the first time in 1914 during World War I. In November of that year British occupation forces imposed martial law throughout the country to protect the interests of Britain and their forces in Egypt. Britain did not end their Martial Law until four years after the end of the war and after Egyptian authorities issued a law in 1922 to protect Britain from any civilian or criminal responsibility that came under the Martial Law.
Since 1922 the country had lived more than 17 years without Martial Law until it was imposed again due to the Second World War in September 1939, but this time it was an Egyptian Martial Law which was issued by a royal decree according to the Alliance Treaty signed between Egypt and Britain on 26/8/1936.
Members of the Parliament objected to hastily declaring Martial Law as Egypt at that time did not face Axis invasion. A few months later, however, war broke out and Martial Law was extended. This continued until the end of the war in 1945, and Martial Law was lifted a few months later.
Martial Law was declared for a third time in May 1948 with the Arab effort to protect Palestinians from Israeli invasion. Martial Law No. 15/1922 was amended by Law No. 73 /1948 for this third imposition. This amendment stipulated that it was permissible to declare a state of emergency to ensure the safety of the Egyptian Army in Palestine.
In April 1950, the last ministry headed by Mostafa El Nahas initiated the end of Martial Law with the exception that it can be imposed partially for one renewable year in the border areas between Egypt and Palestine and in the Sinai and Red Sea governorates. However, the same ministry declared Martial Law for a fourth time in all parts of the country starting from later the same day and Mostafa El Nahas was appointed Prime Minister. As the head of the military he was able to exercise ‘special powers’ enshrined in the law. This ministry was replaced by another and headed by Nagib El Hilaly as a prime minister after the resignation of the El Wafd Ministry.
The Revolution broke out in July 1952 under this Martial Law. The revolution did not need Martial Law to secure itself and achieve its goals. Power was now concentrated in the Revolutionary Command Council. The country was ruled by decisions and declarations issued from the them until the establishment of the Constitution on January 16, 1956. Emergency Law No. 162/1958 was declared after two years by Gamal Abdul Nasser and was applied for the first time in
June 1967 during The Six Days War. The state of emergency lasted for thirteen years until midnight of May 15 1980. It was the longest period which the country lived under Martial Law until unrest began and civilians asked for the lifting of the Law, especially judges and lawyers after the signing of the Camp David Accords on 17/9/1978 and then the Peace Treaty in 1979. After this, the state of emergency lost its legitimacy and continuity and President Sadat had no choice but to accept demands for a lifting of the state of emergency despite his first declaration that the state of emergency will last until the entire evacuation of Israeli troops from the Sinai Peninsula in April 1982. After the assassination of President Sadat, state of emergency was declared by the interim President, Dr.Soufy Abu Talib, and former president of the parliament, which lasted from that day until now. It is the longest period in the history of modern Egypt. The Egyptian Government currently uses terrorism as a pretext to impose a state of emergency and applies Law No 162/1958, which has continued since its declaration on October 6, 1981 until today.
The Emergency Law was extended another two years during a session which was held in the People’s Assembly on Sun 30/4/2006. The government justified not canceling the state of emergency because it had not completed its new Terrorism Law. This law is a dangerous threat to legislation protecting freedoms of civilians. The government, it is argued, depends on the state of emergency to support security forces in fighting “irresponsible terrorist deeds”. These are the main pretexts for the Egyptian Government to extend the state of emergency in Egypt.
With the absence of real justifications for the Emergency Law and a lack of control over its implementation, we find that its impact is purely negative, affecting the future of human rights and democracy in Egypt.
This report comes from the Egyptian Organization for Human Rights’ Campaign to end the state of emergency in Egypt. It has been working since 2002. Further, this report comes as Law No. 162/1958 amended by Law 164/1981 concerning the state of emergency is near completion.
This report includes the following sections:
1 – The reading of the minutes of People’s Assembly to extend the state of emergency.
2 – The state of emergency and its compatibility with the constitution and international covenants.
3 – Reasons and justifications for the imposition of the state of emergency.
4 – The impact of the state of emergency on rights and freedoms in Egypt (special courts the arrest and inspection, suspicion, detention breaking up of peaceful assemblies).
5 – Recommendations.
1 – The reading of the minutes of the people’s assembly to extend the state of emergency.
On 30 April of 2006 at 11:00 am People’s Assembly held a meeting headed by Dr. Ahmed Fathy Sorour, President of the Parliament, to extend the state of emergency after 24 hours of the President’s decision to declare its extension.
The President of the Parliament was informed by the Prime Minister with a decision to extend the state of emergency (No 131/2006) as follows:
“After seeing the Constitution and Emergency Law issued by Law No.162 of 1958 and the decision No. 560 of 1981, taken by the president to declare the state of emergency and decision No. 40 of 2003 to extend the state of emergency, the following decision was taken:-
The state of emergency is extended according to decision No. 560 of 1981, as mentioned above, for two years from the first of June 2006 to 31 May 2008 or until the issuance of the new terrorism law. The Prime Minister mentioned the reasons and motives to extend the state of emergency. He indicated that fighting terrorism is not accomplished by normal procedures, but private rules need to be enacted to strike a balance between the nature of terrorist crime and the rights of citizens. The government has formed a committee that includes specialists to prepare a new bill for fighting terrorism. The committee started its work by examining laws from other nations and revising all legislation, domestic and international, to achieve the desired goal. He indicated that past perseverance by the government to extend the state of emergency was to combat terrorism effectively within three years, but this time the government called for extending the state of emergency to 2 years or until the issuance of the terrorist law. He confirmed that the application of the Emergency Law will not eliminate terrorism completely, but it stops many of terrorist activities and allows security bodies the freedom they need to combat specific elements of terrorism.
He also confirmed the following:
1 – Terrorism leads to the loss of innocent lives, the spread of chaos, threatens the stability of local and foreign investments and closes the door to thousands of people seeking better lives. These conditions require the support of security bodies, so they are able to take measures to quickly and effectively combat terrorism.
2- The Emergency Law will only be used to provide protection for the country and to confront terrorism, which until now has not ended.
3- The government is determined to move forward in the implementation of programs for political, constitutional and democratic reform, but this requires a suitable climate of security and stability.
Mahmoud Abaza, Member of the Parliament argued, “It is time to investigate if our current law is suitable and able to fight terror, or do we need to enact more laws? Our Penal Code is full of useful articles, if they are well applied.”
Mohamed Saad Tawfik, Member of the Parliament, said, “Working with the Emergency Law is a fundamental impediment to the political reform and a source of violation against human rights”
Ragab Helal, Member of Parliament, held, “Before extending the work of the Emergency Law, all ministries should work hard to change. The Emergency Law confirms the failure of previous governments that did not provide jobs, suitable housing and medical treatment for the people, besides implementing political reform at a snails pace. These aspects lead to the growth of terrorism.
2 – The state of emergency and its compatibility with the constitution and international covenants.
The state of emergency, within its legal definition, has extended to its limits and has begun to negatively influence the legislative structure, leading to severity and disregard of many rights and freedoms which are guaranteed by the Egyptian Constitution and international covenants on human rights. This can be shown as follows:
First: According to the Emergency Law, the Executive authority has the ability to impose restrictions on the freedom of individuals and their constitutional rights, including the right to peaceful assembly, movement and living, arrest and detention of suspects, and examining their houses without abiding by criminal procedure law. This is considered a clear violation against the rights and guarantees that are confirmed by the Egyptian constitution in article 41, which relates to personal freedom, Article 44 concerning the sanctity of homes, Article 50 on the freedom of movement and residence and article 54 on the freedom to hold meetings.
Also the state of emergency violates the rights and guarantees stipulated in the international covenants on civil and political rights, including Article 9 relating to personal freedom. “Everyone has the right to freedom and personal security and the right to not be arrested or detained arbitrarily. Also no one shall be deprived of his freedom except for reasons prescribed by law and in accordance with the procedure established therein.”
- Any one stopped should be informed of this, he should be informed of any crime committed.
- Anyone arrested or detained according to a penal crime should be quickly submitted to the judiciary and he should be tried within a reasonable time or released.
- Any one deprived of his freedom due to detention has the right to return to the court to discuss the legality of his detention.
- Any one who was a victim of illegal detention has the right to compensation.
According to Article 12, related to the right to move:
- Every person that lawfully exists within the region of any state has the right to move freely and choose the place of his residence.
- Every one is free to leave any country including the country of residence.
- It is not admissible to restrict rights mentioned above in any way other than those prescribed by law to protect national security, public order, public health or morals or the rights and freedoms of others.
- It is not admissible to deprive anyone from entering his country.
Also, Article 21 related to the right to peaceful assembly, stipulates that “the right to peaceful assembly is recognized and restrictions should not be imposed on practicing this right other than those imposed in accordance with the law to protect national security, public order, public health or morals or the rights and freedoms of others.”
Second: The military ruler or his deputies – under Article 3 of Emergency Law, has the right to monitor and control letters, newspapers, leaflets and publications and exhibits before publishing. The privacy of citizens is clearly violated; this is stated in Article 45 of the Constitution. Also, Article 3 of the Emergency Law violates the freedom of opinion and expression, which is upheld in Article 48 of the Constitution (freedom of the press, printing and publishing and the media is guaranteed) and controlling or stopping or confiscating newspapers through administrative means is banned. Limited restrictions are accepted on newspapers and publications during the declaration of a state of emergency or wartime. Article 49, related to the freedom of scientific and literary research, has been violated as well. Lastly, articles 17 and 19 of the International Covenant on Civil and Political Rights have been violated as follows:
· Illegal campaigns which ruin someone’s honor or reputation are prohibited
· Any one has the right to be protected by the law from this intervention.
· Every individual has the right to adopt opinion without intervention.
· Every individual has the right to the freedom of opinion and expression. This right includes the right to receive and transfer information without any limits.
· The right stipulated in item 2 above requires special duties, so it is accepted that this right has some restrictions stipulated in the law to protect the rights of others and protect the national security or public order or public health or morals.
Third : The Emergency Law gives the Executive authority a wide control to avoid criminal procedures law concerning the arrest of suspects.
In accordance with the Emergency Law, special courts were formed to discuss crimes committed against orders issued by the President. These courts are partially controlled by Partial State Security and Supreme State Security. The president is allowed to form the Court of partial state security, including one judge and two officers from the Armed Forces. He is also allowed to appoint, at Supreme State Security, 3 Counselors and two Commanding Officers.
Fourth : According to Article 9 of the Emergency Law, the President is allowed to submit crimes penalized by public law to the Emergency State Security Courts. This is considered a clear violation against the provision of article 40 of the Constitution which stipulates the principle of “equality among citizens”. Citizens are equal in rights and public duties before the law and there is no distinction related to sex, origin, language or religion or creed.
Also Emergency Law violates the term of (Article 14 Item No.1) of the international covenants on Civil and Political Rights (all people are equal before the courts .Also any individual – when discussing a penal crime he committed or any commitments in civilian case – has the right that his case should be discussed fairly and justly before a neutral and independent court established according within the law . Journalism and the public may be prevented to attend all or part of the trial according to reasons of public morality , public order or national security in a democratic society .
Fifth : According to Article 12 , it is not permitted by any means to appeal on the issued decisions taken by State security courts .This is considered a clear violation against the seven principle of the guidelines for developing legislation related to the state of emergency . Also it is considered a violation against the term of Article 14 item 5 of the international covenants on Civil and Political Rights ( any individual who is charged with committing a crime has the right to resort to a high court according to the law to discuss .
The third section :reasons and justifications of the imposition of the state of emergency .
The aim to impose the state of emergency is confronting hazards which require taking some exceptional procedures to protect the national security and face the imminent threat. The experts of the international law agreed to impose the state of emergency in the following cases :
1- State of war.
2- Case of threat of war.
3- Cases of natural disasters.
On the condition that the state of emergency ends immediately after the demise of circumstances which lead to the state of emergency or if the threat had reduced to the point that sufficient control could be made .
With regarding to the above mentioned items , we find that they are not available at this time .
Over the past years, the Government used the term of terrorism as a pretext for the continued state of emergency, despite the fact that Egyptian society has not seen an act of terrorism constitutes a threat to Egyptian society since 1997 except some individual deeds which the penal code can deal with . Also seizing the events of 11 of September as a pretext to pretend that terrorism deeds may extend to Egypt is not justified on the political or legal side . The government leans to the American and British war preparations against Iraq in 2003 to extend a state of emergency which came before its date as it was decided to end the state of emergency in May 2003 but the government decided to extend the period in Feb 2003 .
In addition , it is not justified to still work with the state of emergency as long as the situation in Egypt is stable and there is no threat or risk .
The fourth section : the impact of the state of emergency on the rights and freedoms in Egypt
The state of emergency which has been imposed since 1981 until now influenced on the rights and general freedoms in Egypt as follows :
1 – Special Courts:
Special Courts were established according to the Emergency Law including State Security Court and the Supreme Partial Court . Judges of these courts are chosen by the president of the republic and their decisions are incontestable and the only measure with regard to their decision is to submit a request to the court which issued the decision , and the president of the republic is allowed to order the formation of State Security partial court including one judge and two officers from the armed forces .
These courts has jurisdiction over the crimes committed in contravention of the provisions of orders issued by the President of the Republic and they don’t provide the guarantees of individual trial before the normal judge. The normal judiciary is the main guarantee to protect the legitimacy in the state .
*Hossam Mahmoud El Shahat , Ahmed Abdul Mon’m Al Sawy and AL Sayed Abdul Ghafar (Sharkia governorate ) were arrested in Nov 2007 and were accused of joining the group of Moslem brotherhood and submitted to the public prosecution which released them but Ministry Of The Interior issued a decision to detain them in Wadi Al Natroun prison
In this regards, EOHR confirms that the equitable and balanced assessment of power in the modern legal state requires that the judiciary power should exclusively adjudicate in all disputes . Whether there are other necessities for the formation of a special court , this special court must be submitted to the judiciary power .
2- Peaceful Assembly :
Article 3 of Emergency Law admitted restrictions on the individual freedom to hold meetings ,moving ,residence and moving in specific time or places despite the fact that the freedom of meeting and peaceful assembly are a constitutional rights .
Article 47 of the Egyptian constitution stipulated that (the freedom of opinion is guaranteed and everyone is allowed to express his opinion through speech , writing or photography or other means of expression within the law) .Also Article 54 of the constitution stipulated that ( citizens have the right to hold meetings peacefully and not carrying a weapon without the need for prior notice and no security men are allowed to dissolve the meeting ).
Despite the above mentioned , we find that the right to peaceful assembly and demonstration are exposed to violations in spite of constitutional provisions and international covenants on human rights signed by Egypt and become part of its interior law in accordance with article 151 of the Constitution besides, the unjustified excessive use of force by security forces .
3 – Torture and violation of the right of individuals to their personal security and privacy:
EOHR monitored some cases of torture and death, and notes the existence of a close relationship between the declaration of a state of emergency and the emergence of a pattern of routinely fixed torture.
The government took advantage of the presence of terrorist acts and the spread of violence from armed Islamic groups as a pretext and justification to launch the hands of executive authority and give them broad powers to use violence in confronting this phenomenon under the banner of protecting security and order which led to a widespread torture which became a methodology for the police in dealing with citizens.
Under the Emergency Law citizens are arrested and detained without specific charges as a pretext that they are suspects or dangerous to public security and public order and the time that citizens remain with the security hand exceeds 11 days since the powers of police officers exceeded authority Prosecutors’ competences .
According to reports issued by the Egyptian Organization the aggravation of the phenomenon of arbitrary arrests pursuant to Article 34 of Criminal Procedure law , and campaigns have increased to arrest dozens of citizens who are not belonging to any political trends and they had been arrested and detained for various periods without legal reason .
Arrest and Inspection:
Most of the dangerous procedures taken by emergency powers is the decision of President of the Republic No. 4 in 1982, which mandated the Interior minister the power to take procedures stipulated in Article 3 of Law No.162 /1958 concerning the state of emergency which impose restrictions on the right of citizens’ Personal security and privacy and giving the interior minister the right to arrest people and inspect their houses and detain them and reviewing their personal messages without abiding by the guarantees stipulated in the criminal procedures law for just suspect without any evidence of having committed any offence .Also he was permitted to detain individuals according to verbal orders to 8 days.
In return, the legislator has provided in Article 280 of the Penal Code a very poor punishment in case of arrest person or confining or detaining without a warrant by a competent rulers .
* Israa Abdul Fatah was accused of inciting for strike on 6th of April .Ministry of Interior issued decisions to detain her and she was taken to El Marg prison
The decision was taken despite that the public prosecution had issued earlier decisions to release her due to the lack of charges ,but Ministry Of The Interior issued a decision to detain her .
The decisions of the Court of Cassation, concerning arrest and inspection:
The Decisions of the court of cassation No 2992 -54 session No.5/2/1985
(Since the arrest and inspection case – which took place without issuing a judicial decision – is occurred in the absence of flagrant- delicto (red-handed with crime) and without a full and sufficient evidences , the direct arrest will not be valid .
High Administrative Court No.675 /797 of 1922 session 27/5/1978
The president of the republic has the right to issue arrest and detention orders according to Emergency Law only for the suspect and dangerous to the security and public order in accordance with what stipulated in Decree No. 98 in 1945 related to Special vagrants and suspects and there is no way to violate the general freedom or the rights of citizens.
Dr. Sami Francis was arrested on 7/4/2008 during the events of 6 of April 2008 at El Mahla city . He was submitted to the public prosecution and it was appeared that there is a detention decision issued against him so the public prosecution issued a decision with 15 days imprisonment after opening the detention decision to complete investigation .
The American journalist Gims Bak and Mohamed Saleh, translator in El Mahala . On 10/4/2008 The American journalist Gims Bak and Mohamed Saleh, translator were arrested during their covering the events of el mahala . They were accompanied to the police station where they were confined.
The Preventive arrest:
Article 35 of the Criminal Procedure law allowed the executive authority the right to stop citizens as a pretext of suspicion and taking preventive procedures under the coverage of this Article .Police ambushes on the road and above bridges became usual view . This is considered a clear violation against the freedom of citizens who are arrested and detained without any legal reason .
4 –Detention :
Numbers of detainees in Egypt has reached 22 thousand detainees in the nineties, but after the release of some decisions in recent years, their numbers have fluctuated between 10 to 12 thousand detainees in prisons . Although they have Decisions for their release, but they have not been implemented.
There are 3 types of detentions in Egypt:
1 – The repeated detention for political reasons, which is considered a violation of the right to freedom and personal safety due to the expansion of the State security investigation in its use of article 3 of the Emergency Law which allows detention of persons suspected or dangerous to public security.
The executive authority persisted in breaching the stipulation of Articles 2 and Article 3 of the Emergency Law as they deprive detainees who got a final release decisions to set them free . Ministry Of The Interior repeats their detention according to successive administrative decisions and this is considered a clear violation to the rules of the judiciary.
2 – The second type of detainees who are being accused and there are already decisions issued against them like Ahmed Nasr Badawy and Mohamed Nasr Badawy in Kerdasa’s case .
3 – The third type of detainees who were sentenced acquittal in political issues, but they were detained again like Sheikh “Mohammed Ahmed Ibrahim “in case No. 24 for military crimes in 2001.
Also there is a criminal detention which is issued by the Ministry of the Interior against defendants who are suspected to commit crimes stipulated in suspect law or hooligan crimes or economic crimes .
The confinement of Al-Jazeera Filming staff in El Mahala .
On 8/4/2008 Yasser Soliman and Nasr Youssef , Al-Jazeera Filming staff ,went to El Mahala to cover the visit of Mr. Prime Minister .They were surprised by the police officers dressed in civilian clothes .They were escorted to the State Security Branch in El Mahala where they were confined until their release at 11:00 pm
5 – Recommendations.
EOHR stresses its condemnation of all acts of violence and terrorism regardless of the identity of the perpetrators or their goal, but feels that there is no justification for the continuation of the state of emergency, as long as the Penal Code is sufficient to fight acts of violence and terrorism. It calls for a set of recommendations as follows:
1-Putting an end to the state of emergency which has been in place 1981 under law No. 162 of 1958 because of its harmful effects on the human rights system in Egypt. If the Government was sincere in its intention to institute political and constitutional reform, declaring a state of emergency should only be in the event of actual war and disasters with a limited period under the control of the legislative branch of government.
2- Amending the Egyptian Constitution and its integral laws related to the declaration of the state of emergency. This means linking the state of emergency with exceptional risk. Also the Emergency Law can determine the degree of emergency, as it could be declared partially if the risk is partial, and it could be declared in a limited geographical scope according to the risk.
3- Canceling laws that restrict freedoms including Political Party Law No. 40 of 1977, NGO Law No. 84 of 2002, Trade Union Law No. 100 of 1993 and its amendments with Law 5 of 1995, etc. In other words, ensure the right to organize through the lifting of administrative and security restrictions imposed on the freedom of peaceful assembly and the right to establish political parties and NGOs.
4- Canceling all laws and special courts and providing guarantees for the independence of the judiciary and the right to a fair and just trial. Further, submitting civilians to the military courts should be prohibited.
5- Ensuring that law that fights terrorism is not a typecast copy from the Emergency Law, making the state of emergency an eternal special case forever.
6- The immediate release of all detainees under the Emergency Law and putting an end to the method of arbitrary administrative detention, which contradicts Egypt‘s international obligations.
7- Reconsidering the articles of the Emergency Law related to court jurisdiction. Within the laws of detention, there must be a guarantee for any detainee to stand before the court after his arrest or during the first hours or days of detention.
At the end of its report, EOHR stresses that eliminating the effects of the Emergency Law is a process that requires a collective and multifaceted responsibility. The legislative authority should uphold its responsibility to society and declare a need for the end of the Emergency Law. On the other hand, political and social forces should undertake the responsibility not only to urge authorities to stop working in accordance with this law, but also to work collectively to amend the law. If the first goal, working on canceling the state of emergency, falls upon the legislative and executive authority, the other goal, building a future without emergency, would be reached only through the collective work of all society.
What is needed at this time is not an amendment to the Emergency Law, but a complete end to the state of emergency. The so-called “culture of emergency” and the civic culture is threatened by the Emergency Law and other laws restricting freedoms, which were published as a preparation for the abolition of the state of emergency. However, this ended with the survival of both laws since their establishment in 1981.
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