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Emergency Declared: Stabbing the Rule of Law in Egypt

JURIST Guest Columnist Mohamed Abdelaal, a professor at Alexandria University School of Law and Indiana University Robert H. McKinney School of Law, discusses how the revival of the Emergency Law No. 162 of 1958 can negatively impact the rule of law in Egypt....

Egypt's longtime former president Hosni Mubarak, who was forced to step down during the Egyptian Revolution of 2011, ruled the country under the grip of emergency law for almost three decades, restricting individuals' freedoms and suspending several constitutional rights. Egypt's Emergency Law, Law No. 162 of 1958, was first imposed during the Egypt-Israel War in 1967 and was suspended after the 1973 War before being reactivated following the assassination of President Anwar Al-sadat in 1981 and has been in effect for almost 30 years during the regime of President Mubarak.

During the 2011 Revolution, one of the most key reforms demanded by the protesters was to put an end to the state of emergency and to revoke Law No. 162 of 1958 [pdf]. However, the Egyptian Supreme Council of Military Forces (SCAF), which assumed power after President Mubarak was forced from office pending the designation of an acting president until a presidential election is to be held, extended the emergency state before repealing it on May 31, 2012. In August 2013, the emergency law was restored when the acting president Adly Mansour declared the state of emergency for only one month to counter sabotage done by the supporters of the now ousted Islamist President Mohamed Morsi of the Muslim Brotherhood.

On April 10, 2017, following the recent Egypt church bombings by Islamic militants, Egypt's current President Abdul Fattah Al-sisi issued the Presidential Decree No. 157 of 2017 [in Arabic] reinstating the state of emergency for three months, which was later approved by the House of Representatives pursuant to Article 154 of Egypt's current Constitution of 2014 [pdf], which reads "[T]he President of the Republic declares, after consultation with the Cabinet, a state of emergency in the manner regulated by law. Such proclamation must be submitted to the House of Representatives within the following seven days to consider it."

The Presidential Decree No. 157 of 2017 contains five short articles, among them Article 4 is of a great significance. Specifically, Article 4 of the Decree punishes by imprisonment "whoever violates the orders issued by the President of the Republic pursuant to Law No. 162 of 1958 regarding the state of emergency." Law No. 162 of 1958 authorizes the president to take the required precautions to restrict the freedom of meeting, movement, residence, arrest suspects or those who threat public security and public order, to inspect people and places notwithstanding the provisions of the Criminal Procedures Law. (Art. 3(1)) [pdf]. It also entitles the president to order surveillance on any kind of messages, monitor, confiscate and close newspapers, leaflets, publications, fees and all means of expression, propaganda and advertising before its publication. (Art. 3(2)) [pdf]. Further, under this law, the president determines the opening and closing times of public stores, withdraws weapons' licenses and evacuates or segregates certain regions. (Art. 3(3), (5), (6)) [pdf].

Accordingly, a cursory examination of Article 4 [in Arabic] of the Presidential Decree No. 157 of 2017 reveals that it brings Law No. 162 of 1958 back into effect after it was last applied in 2013, a move which is likely to represent a major step back towards the proper application of the rule of law in Egypt.

Below, I discuss how the revival of the Emergency Law No. 162 of 1958 can negatively impact the rule of law in Egypt. In doing so, my analysis centers around two main points.

Firstly, the case could be dated back to 2013, when the Egyptian Supreme Constitutional Court (SCC) invalidated [the Court's ruling in Arabic] Art. 3(1) [pdf] of the Emergency Law No. 162 of 1958, which allowed the President a great deal of discretion in imposing restrictions on some fundamental rights such as, the freedom of meeting, movement and residence. The article [pdf], further, authorized the President to order the arrest and search of people as well as private places without being bound by procedures and safeguards mentioned in the Criminal Procedures Law No. 150 of 1950 as amended by Law No. 95 of 2003 [pdf in Arabic]. The Court ruled the article unconstitutional [pdf in Arabic] reasoning that,

Article 3(1) of Law No. 162 of 1958, in authorizing the President of the Republic to arrest and search persons and places without judicial warrant, infringes fundamental freedoms of the citizens and represents an assault on the sanctity of their homes and private places, and thus violates the rule of law which is the basis of governance in the State.

Given the fact that, in the context of the Egyptian legal system, decisions of the SCC bind the state authorities since the last word on constitutional questions rests with the Court, Egypt's House of Representatives vowed to abide by the Court's aforementioned ruling when considering the merits of the President's declaration of emergency.However, such vow is only as good as the intention of the House of Representatives itself which fulfills it. Precisely, in approving the Presidential Decree No. 157 of 2017, which declared the emergency state and restored Law No. 162 of 1958, the House of Representatives announced its intention to amend Law No. 162 of 1958, a step which has been seen by many as an attempt by the House to show its commitment to abide by the SCC's decision in ruling Art. 3(1) of the law unconstitutional. However, the House approved a minor amendment [in Arabic] introducing a new article to the law which reads

with exception to the provisions of other laws, when the state of emergency is being declared, law enforcement officers are authorized to arrest any person if evidence indicates he may have committed a felony or a misdemeanor and searching his place of residence, and any place where there is a suspicion that he hides any dangerous or explosive materials, weapons or ammunition, or any object or instrument that might be the product of a crime, and he may be detained, after obtaining the permission of the public prosecutor, for a period not exceeding 7 days for evidence gathering.

In fact, the language of this amendment cannot be described to mean anything but an attempt by the House of Representatives to bypass the SCC's ruling which invalidated Art. 3(1) of Law No. 162 of 1958 for violating the rule of law and individuals fundamental rights when authorizing the arrest and search of people and private places without a judicial warrant and without following the procedures mentioned in the Criminal Procedures Law. A careful reading to the language of the new amendment shows that the House of Representatives decided to adopt the content of Art. 3(1) of Law No. 162 of 1956 using different words.

Apart from the requirement to have the permission of the public prosecutor in order to detain the suspected person, the language of the amendment is so evident that procedures concerning arrest, search and confiscation are excluded from the protection pack that might be provided in other laws, including the Criminal Procedures Law. That being said, it is obvious that the House of Representatives failed to honor the SCC's ruling adopting an amendment that is likely to be construed as an attempt to circumvent the Court' ruling.

Secondly, an equal significantly failure to the rule of law in Egypt is evident in the attempt of Egypt's authorities to recall Emergency Law No. 162 of 1958 back from its deep slumber, a step that I regard as no more than a poor legislative redundancy. Specifically, in 2013 and 2015, Egypt adopted the Protest Law (Law No. 107 of 2013) [pdf] and the Anti-Terrorism Law (Law No. 94 of 2015) [pdf] respectively. Interestingly, both laws contain punitive provisions that address most of the areas Emergency Law No. 162 of 1958 tries to cover. The two laws for instance, punish for crimes that are similar to mentioned in Law No. 162 of 1958 such as "the possession of weapons and explosives, the dissemination of false news and information and the joining of an armed group." Further, both laws resemble Law No. 162 of 1958 in punishing "the publication, broadcast or promotion of false news or statements regarding terrorist attacks committed within the country or operations associated with fighting terrorism that differ from official statements by the Defense Ministry."

Also worth noting is the fact that Egypt's Penal Code of 1937 [pdf] includes a broad range of acts regarding which acts shall be considered an act of terrorism, a matter that is likely to put the Penal Code in conflict with the Emergency Law, the Protest Law and the anti-terrorism law since they all contain provisions defining acts of terrorism.

Egypt's path in seeking stability and security after the toppling of two defiant regimes in 2011 and 2013 respectively necessitates the deterrence of those who create chaos and spread terror. However, this should not be done at the expense of the certainty of the rule of law. One should not argue against the approach of the Egyptian authorities in designating a law to help counter terrorism and violence. However, in designating such law, decisions of the SCC as well as fundamental rights and freedoms must be maintained and respected. In fact, the approach of the Egyptian House of Representatives in evading a SCC's ruling to readopt a provision that had been ruled unconstitutional is undoubtedly a stab to the rule of law in Egypt. Likewise, the methodology adopted by the Egyptian authorities in issuing new laws that govern issues already governed by existing laws is likely to create discrepancies in courts regarding which law is to be applicable, which harms the predictability of law and thus, constitutes a threat to the rule of law.

Mohamed Abdelaal joined Alexandria University Faculty of Law in Egypt in the Fall of 2009 and became Assistant Professor of Constitutional and Administrative Law in 2014. Abdelaal also teaches political sciences at the American University in Cairo on an adjunct basis. He focuses his teaching and scholarship on the areas of Constitutional Law; Administrative Law, Islamic Law, Islamic Constitutional Law, International Human Rights. Abdelaal joined IU McKinney School of Law in Spring 2015.

Suggested citation: Mohamed Abdelaal, Emergency Declared: Stabbing the Rule of Law in Egypt, JURIST - Forum, April. 29, 2017, http://jurist.org/forum/2017/04/Mohamed-Abdelaal-rule-of-law-in-egypt.php.
  


This article was prepared for publication by Yuxin Jiang, a Senior Editor for JURIST Commentary service. Please direct any questions or comments to her at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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