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February 2, 2018
The presidential decree issued on October 10, 2017 re-declaring state of emergency for three months, raised widespread debate. This decree was the third of its kind in 2017. Egypt has a long history of exceptional laws (the emergency law being among the most prominent of them). Since the 1952 Officers Movement, Egypt has been governed for decades by many regulations and exceptional laws that are considered a violation of public law. Public law is all general legislations issued by parliament to regulate public affairs based on honoring the rights and freedoms of individual citizens. Public law is normally applied by the regular (non-military and non-exceptional) judiciary.

Egypt has always witnessed large-scale implementations of the emergency law. Before the January 25, 2011 Revolution, the state of emergency had already been in force since 1981 and had been renewed by the president every two years. The last decree issued by President Mubarak to reinstate the state of emergency was resolution No. 126/2010. According to this resolution, the state of emergency ended on May 31, 2012. Despite the outbreak of the revolution in January 2011, where a major demand was to terminate the state of emergency, emergency rule stayed in force until May 31, 2012 as stipulated in President Mubarak's resolution. This date represented a milestone in Egypt's path with the emergency law: the state of emergency finally ended after thirty years of enforcement. Many thought that Egypt would never live under a state of emergency again. In fact, for 13 months, from June 2012 until August 14, 2013, Egypt lived without a state of emergency (except for a limited and partial enforcement for 30 days between January and February 2013 in the Suez Canal towns). This latter period represented the unprecedented social and political openness that Egypt had enjoyed after toppling Mubarak; with no limitations to freedom of expression and no fear of being subjected to arbitrary procedures by the government for political activism.

To explain a state of emergency, it is worth mentioning that the existence of the emergency law itself is not problematic. This law can be enforced by declaring state of emergency when needed, for example when a country confronts a public disaster or large security disturbance. In France, for instance, the emergency law was issued in 1955; however, a state of emergency has only been declared for a few, limited periods. The latest declaration of a state of emergency in France was in November 2015 after the terrorist attacks that took place in Paris leaving 130 dead. In Egypt, on the other hand, the emergency law was issued in 1958, and a state of emergency has been in force since then except for small breaks.

The Egyptian emergency law, No. 162/1958, has witnessed many amendments, the last of which was by law 12/2017. The emergency law regulates the procedures that are followed when declaring the state of emergency, and the powers the law grants to the executive authority and its security apparatuses. The most prominent of these powers are the following. First, the law grants broad powers to law enforcement officers, whether military or police, with regards to detaining suspects, arresting them, or imprisoning them for extended periods. Second, based on the emergency law, emergency state-security courts can be formed in every first instance court and court of appeal across Egypt. These courts are composed of judges, and the president can add military officers to them. Moreover, the verdicts of these courts cannot be appealed. The president has the right to appoint all the judges of the emergency state-security courts, whether civil or military judges. Third, according to the emergency law, the president of the Republic enjoys sweeping powers. The president (or whomever he authorizes) can refer any of the public law crimes to the state security courts, including criminalized offences in regular laws such as the criminal law and other laws that include criminal punishments (the Protest Law and Terrorism Law are examples). Additionally, the president ratifies the verdicts of the emergency state-security courts. This latter authority gives him the authority to approve or terminate a verdict, reduce a penalty, or transfer a trial to another court. Finally, the president can censor any kind of message and all types of publications, newspapers, images and all forms of expression, and announcements before they are published. He also has the right to restrain the press, confiscate its materials, and close its outlets.

It is worth mentioning that one of the most important presidential authorities stipulated in the emergency law was repealed by a Supreme Constitutional Court (SCC) ruling in June 2013. Previously, according to Article Three of the emergency law, whenever a state of emergency is declared, the president has the right to issue a verbal or written detaining order or search warrant without being restricted by any of the criminal law procedures and guarantees. This powerful authority has been the legal base upon which the governing regimes, for decades, arrested thousands of citizens. The tradition was for the president to authorize the Minister of Interior to issue these detaining orders. On June 2, 2013, the SCC, in case No. 17, issued its verdict that this article of the emergency law is unconstitutional. It must be mentioned in this regard that this constitutional case was launched in April 1993, meaning the SCC took more than twenty years to decide on the case. This decision means that all detaining orders, searches, and arrests that were conducted throughout two decades were based on unconstitutional text.

On August 14, 2013, with the dispersing of the Rabaa sit-in, a state of emergency was declared for the first time since the January 25th revolution. This state of emergency ended after ninety days. However, the rate of issuing exceptional laws has been increasing since then, especially after the presidential election in June 2014, which resulted in president Abdel Fattah el-Sisi assuming office. October 2014 witnessed the issuing of two significant resolutions by the president. The first was the declaration of a state of emergency across vast territories of north Sinai in the aftermath of a terrorist attack that took the lives of thirty-three Egyptian police and military personnel. That state of emergency was in force until April 2017, at which point a state of emergency was declared all over the country, including north Sinai. The second resolution was Law No. 136, which was issued on October 28, 2014. It put crimes committed against civilian establishments and facilities under the authority of the military judiciary. This is an expansion of jurisdiction of the military courts that was not stipulated in the constitution in Article 204, which specifies that only attacks against military establishments are under the military courts jurisdiction.

Law No. 136 (2014) was to be enforced for two years, until October 2016. Nevertheless, the Egyptian Parliament issued law No. 65 in 2016 to extend the law’s operation for five more years, until 2021. This extension raised extensive criticism for reasons including its violation of the constitution and because it allows civilians to be tried before the military judiciary for nonmilitary crimes. Law No. 136/2014 has been implemented in various occasions which resulted in referring civilians to military courts. This parallels the issuance of many other “exceptional” laws such as: The Anti-terrorism Law (No. 94/2015), and the Terrorist Entities and Lists Law (No. 8/2015).

On April 10, 2017 the president issued decree No. 157/2017, declaring a state of emergency across the country for three months. Later, in June, a presidential decree was issued to extend this state of emergency for three more months until October 9. Then, on October 10, 2017, the president issued Presidential Decree No. 510/2017 to reinstate the state of emergency for three more months starting from October 13. Reviewing the legal and constitutional framework of these presidential decrees, Article 154 of the 2014 Egyptian constitution states that a state of emergency should only be for a limited period of time not exceeding three months, and it can only be renewed once for a similar period with the approval of two-thirds of parliament.

Hence, some see the October decree (which imposed a new state of emergency just three days after six months of emergency rule ended) as circumventing the constitution, and hence conclude that a state of emergency should not be extended by such a procedure. In fact, the government’s legal circumvention could be attributed to a deficit in the constitutional text that allows for such convolution. The constitution forbids “renewing” a state of emergency more than once. However, shortly after the end of the six months (the timeframe that is constitutionally allowed for declaring a state of emergency and its extension), it is possible to re‑declare a state of emergency for three months via a new decree, and to extend it another three months. Dr. Salah Fawzi, a member of the Committee of Ten that amended the constitution in 2014, announced that the president's decree declaring a state of emergency last October is not a constitutional violation because the security threats for which emergency rule was declared still exist. However, the fact is that even though this perspective might seem legally valid (due to the loophole in the constitution), it lacks political soundness since it legalizes continuing emergency rule in Egypt for months, or even years, without restrictions. This is the very same case that Egypt sank into for decades in the absence of rule of law.

Lastly, in regard to constitutional Article 154 (that regulates the process of declaring a state of emergency), it requires parliament to approve declaring and extending a state of emergency. Initial approval requires a simple parliamentary majority, and extending it requires a two-thirds majority. Of course, the president finds no difficulty securing approval from a parliament that always agrees unanimously with all the president's state of emergency declarations.

Based on the October 2017 decree instating a “new” state of emergency, (which was extended for three more months in January 2018) the Egyptian prime minister, as per the powers delegated to him by the president, issued a decree listing the specific crimes that will be prosecuted by emergency state-security courts, as long as emergency rule is in place. The prime minister's decree included: The Protest Law (No. 107/2013), Assembly Law (No. 10/1914), Anti-terrorism Law (No. 94/2015), Law Criminalizing Attacks on Freedom of Work and Devastating Establishments (No. 34/2011, commonly called the Strike Law), Weapons and Ammunition Law (No. 394/1954), and Freedom of Worship Law (No. 113/2008). It also includes crimes related to terrorism, violations of state security, intimidation, hooliganism, blocking transportation, crimes stipulated in the penal code, and crimes violating pricing and supply laws.

A result of implementing this set of exceptional laws is having three kinds of working courts in the country; First are the ordinary courts, which represent the body of judicial authority, and whose task is to implement common laws. However, much of the authority of these courts has been withdrawn in favor of the other two types of courts. The second type is military courts that can try civilians who are accused of committing crimes against civilian establishments according to Law No. 136/2014. Lastly, the emergency state-security courts exist under the state of emergency. These are the courts that can try perpetrators for many crimes, as mentioned above in relation to the prime minister’s October decision.

Since mid-2013, Egypt faced large-scale waves of violence and terrorism. Terrorist attacks have left thousands killed and injured, leading to the public feeling insecure and losing faith in the government’s and its security agencies’ ability to maintain security. It is understandable that the government and its supporters consider this set of exceptional laws and judicial rulings based on the latter justifiable and acceptable. However, experience proves that clinging to exceptional laws has never been a true solution to treating terrorism. Throughout the past four years, the rate of terrorism attacks have not decreased despite these exceptional laws and the very broad powers that they grant to the government and its security apparatuses. On the contrary, it can be said that the rate of these terrorist attacks has increased qualitatively and quantitatively. In this regard, it is enough to mention the tragic massacre of al-Rawda Mosque in northern Sinai on November 24, 2017. More than three hundred civilians were killed in a calamity that is considered the worst of its kind.

Continuing to enforce the exceptional laws for several months, and years, is evidence of the government’s continued failure in achieving public security and deterring outlaws. Additionally, there is an inverse relationship between imposing these exceptional laws, and securing public rights and freedoms, especially for the political opposition. The Egyptian scene indicates that under these exceptional laws and military and special tribunals, all doors are closed before any opposition and political activism. This is, indeed, a primary factor for the increasing rates of violence and extremism.

Yussef Auf is an Egyptian judge, a non-resident fellow at the Atlantic Council’s Rafik Hariri Center, and a Middle East and North Africa Research Fellow at the Max Planck Foundation for International Peace and Rule of Law in Germany.