A three-month state of emergency and an amendment to the Emergency Law were approved by Parliament in the legislative body’s Tuesday session, after the Cabinet and presidency officially declared the exceptional rule of law on Monday, and Parliament’s legislative committee discussed the amendment proposed by Alliance to Support Egypt MP Tharwat Bekhit earlier in the day.
The amendment to the Emergency Law will now be sent to the State Council for an advisory legal review, after which it will be sent back to Parliament for a final vote and then presidential ratification and publication in the Egyptian Gazette.
The new provisions replace an article of the 1958 Emergency Law, which was declared unconstitutional in a June 2013 Supreme Constitutional Court ruling and had previously granted similar powers to the interior minister. In its decision, the Supreme Constitutional Court ruled that the article allowed for a form of administrative detention, which is outside the realm of judicial oversight and violating due process rights. Tuesday’s amendment creates a new role for the public prosecutor to review temporary detentions and request indefinite detentions from the Emergency State Security Court, but it still fails to enshrine the right of a detainee to appear before a prosecutor or judge to challenge the legality of detention, referred to as habeas corpus in the Anglo-American common law system.
Parliament had seven days to review President Abdel Fattah al-Sisi’s presidential decree marshaling a state of emergency, as per the terms laid out in Egypt’s 2014 Constitution, but moved swiftly to institute the new measures.
Before approving the state of emergency, Parliament’s legislative committee commenced discussion of the government-proposed amendment to the Emergency law, a copy of which Mada Masr obtained.
We’ve provided an unofficial translation of the three articles of the government’s proposed amendment to the emergency…
The amendment contains two provisions by which detentions can occur without warrants or the provision of evidence and outside of cases in flagrante delicto. Under the first, security forces are invested with the authority to apprehend and detain “suspects” where there is the existence of “indications” pointing to the commission of a crime and subsequently is required to notify the public prosecutor. The detainee can be held for seven days without being required to appear before the prosecution or a judge, pending collection of further evidence and subject to approval by the prosecution. In the second, the public prosecutor can submit a request to the Emergency State Security Court to approve a 30-day detention, which is open to indefinite renewal, for any person deemed to “pose a threat to public security.”
The amendment appears to contravene Article 54 of the 2014 Constitution, which stipulates a limited time frame for a detainee to be presented to the prosecution or judge:
“Except in cases of in flagrante delicto, no person may be arrested, searched, detained or have any restrictions imposed on their freedom except with a court order that is necessitated by investigations.
All those arrested or detained will be informed in writing of the reasons for their arrest and their rights. They shall also be allowed to immediately contact a family member and a lawyer and be presented to the investigating authority within 24 hours of the time of arrest.”
During Tuesday’s session, Parliamentary Speaker Ali Abdel Aal asserted that the approval of the state of emergency and the amendments to the law target only terrorists and criminals and will not affect the lives of other citizens.
“You have to make people in your social circles aware that the emergency will not be like that of the past, which continued for 30 years, and that there are now reasons to impose it for the best interest of the country,” Abdel Aal said, referring to the state of emergency under deposed Former President Hosni Mubarak.
Tarek Abdelal, a lawyer at the Egyptian Initiative for Personal Rights (EIPR), says that the amendment aims to fill the gap created by the 2013 constitutional court ruling, which stripped the president of the power to arrest, detain and search civilians without abiding by the Criminal Procedure Code.
The Emergency Law has not been amended in the four years that have elapsed since the court’s ruling.
In the its 2013 ruling, the Supreme Constitutional Court affirmed the existence of the Emergency Law but delimited its reach. “The emergency law, which the constitution has allowed to exist, cannot be used as a pretext to violate [the constitution’s] provisions and go beyond its reach, as the emergency law, regardless of its pretexts, remains a legislative matter that has to abide by all of the constitution’s provisions, most importantly the preservation of citizens’ rights and freedoms.”
The amendment to the Emergency Law may allow for trespasses upon these constitutional provisions, according to Abdelal, who points to the vague term “indications” which is meant to serve as legitimation for detention, as much as the seven days a suspect can be held without appearing before the prosecution or a judge.
The timing of Parliament’s actions has no bearing on the forthcoming state of emergency, according to Abdelal. While the state of emergency was approved before the amendment, the changes to the Emergency Law will be effective upon publication in the Egyptian Gazette.
Former Supreme Constitutional Court deputy head Mohamed al-Shennawy agrees, saying that the amendment is contingent upon publication in the Egyptian Gazette. Until then, Shennawy says, the Emergency Law will be enforced in its current state.