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Thursday, 27 April 2017

Egypt: On the state of emergency

Ziad Bahaa-Eldin , Friday 21 Apr 2017
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The declaration of a state of emergency last week prompted no major controversy. The president made the declaration on Monday evening, the government approved it immediately upon receipt, and parliament ratified it the next day, after MPs agreed to forgo debate.

 According to a Baseera poll, 63 percent of respondents supported the declaration, 17 percent were opposed, and 20 percent were undecided.

This relative equanimity, in my view, indicates society’s readiness, in light of recent events, to accept state counterterrorism policies without worrying too much about their legal content, effectiveness, or what broader policies they should entail.

The most significant impact of the state of emergency is the application of the 1958 emergency law, which gives security agencies exceptional powers to arrest and detain suspects without judicial oversight, monitor communications, refer suspects to State Security courts, ban demonstrations, and restrict certain economic and commercial activities.

But although we have lived under emergency law at various times the past century, and almost continuously from 1967 to 2012, there are two major constitutional differences this time. First, in 2013 the Supreme Constitutional Court declared paragraph 1 of Article 3 of the emergency law, which permitted the arrest and detention of suspects without judicial oversight, unconstitutional. Second, the new constitution puts a three-month ceiling on a state of emergency, renewable only once got a similar period.

These constitutional limits are significant, giving form to a pivotal idea: that any state of emergency must function within a sound constitutional framework that regulates it, restricts it, and grants it legal and political legitimacy. It shouldn't be a pretext to trample the constitution, disregard the law, and postpone progress on the political track.

The fact is, however, that much legislation issued in the past three years—in the realm of counterterrorism, the regulation of foreign funding, oversight of civic associations, the prohibition of demonstrations, and new criminal procedures—have already given state agencies broad latitude and imposed strict penalties, up to and including death, for numerous crimes.

Moreover, in practice the security apparatus exercised many exceptional, emergency powers even before the declaration, as documented in numerous independent reports, including by the Egyptian Organization for Human Rights.

This poses the question of whether stricter penalties, broader security prerogatives, and the disregard of constitutional safeguards are in fact the best way to confront terrorism. Maybe a different method should be tried this time?

Moreover, on the same day it ratified the state of emergency, the House of Representatives approved amendments to the Code of Criminal Procedure governing how long suspects can be held in custody. These were forwarded to the State Council for its opinion prior to issuance.

A few weeks ago, the House also approved a bill curtailing judicial independence, which is still awaiting the State Council opinion. These changes raise further questions: is the government willing to subordinate the state of emergency and associated laws to the overriding constitutional framework, or does it believe an emergency overrides the constitution itself?

At the same time, the official and media focus on the emergency law as the principal means of confronting terrorism has overshadowed other—no less and perhaps more important—aspects of this battle: the need for a thorough reassessment of security policies, the economic and social conditions that give rise to and fuel hatred and the desire for retribution, as well as the disconnect between official rhetoric on renewing religious discourse and the reality on the ground, where a discourse of incitement, hatred, and discrimination spreads unchecked.

These issues are not marginal to the fight against terrorism—they go to the heart of the matter, relevant as they are to draining the intellectual and organizational wellsprings of terrorism. They shouldn’t be ignored or delayed in the belief that the law and exceptional security measures alone can do the job.

There is no argument over the gravity of the present situation, the real threat terrorism poses to the security and future of the nation, or the need to take all possible measures to confront it. The matter is too serious to be used for political grandstanding, division, or accusations of treason. The question, instead, is about state policies and tools to combat violence and terrorism. And now is the right time to recognize the error of relying solely on a security approach or believing that suspending constitutional and legal guarantees offers the path to victory over terrorism.

What the country needs is to expand the scope of the confrontation by mobilizing society’s indispensable economic, social, and cultural energies. Egypt must encourage political and party activity, which can attract young people and posit a moderate discourse. Egypt needs to let civic associations freely operate, as they are well placed for community outreach and the provision of effective social services.

Egypt requires a free media and an independent intellectual and cultural climate that can counter benighted thought leading to aggression and violence. It needs a balanced social and economic policy that addresses citizens’ urgent needs and lifts bureaucratic hurdles for small producers who want to work and provide jobs. And above all else, it must restore society’s faith in the law, justice, and constitution, for this is the real safeguard for the future of the civil state.

Our battle with terrorism is long and difficult. If all of society is to stand behind the state, supporting it and participating and willing to make more sacrifices, current policies must be reconsidered. The public sphere must be opened, not closed, and the constitution and law defended, even during a state of emergency.

*The writer holds a PhD in financial law from the London School of Economics. He is former deputy prime minister, former chairman of the Egyptian Financial Supervisory Authority and former chairman of the General Authority for Investment.
A version of this article was published in Arabic in El-Shorouq newspaper on Monday, 17 April.

 

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