Egypt's revamped emergency law dogged by legal, political ambiguity
Salma Shukrallah, Wednesday 21 Sep 2011
Six months to the day since Egypt’s constitutional referendum, the Mubarak-era emergency law remains a force to be reckoned with

Egypt’s Cabinet and Supreme Council of the Armed Forces (SCAF) have recently issued conflicting statements regarding ostensible plans to end the longstanding state of emergency and halt the practice of referring civilians to military tribunals.

Lieutenant-General Adel Morsi, chairman of the military judiciary authority, announced earlier this month that the SCAF would end the use of trying civilians in military courts once the longstanding emergency law was lifted. Days later, however, Prime Minister Essam Sharaf declared that the state would continue to employ the emergency law in lieu of the use of military trials.

Activists, meanwhile, continue to demand an end to the state of emergency, which for more than three decades had represented a mainstay of the deposed Mubarak regime.

The military council, however, has not only maintained the unpopular law, but has widened its scope to include crimes other than drug trafficking and terrorism. The decision has been met with support by large swathes of the population, who continue to complain of rising lawlessness since the nationwide withdrawal of police at the height of the revolution in January.

The Cabinet and SCAF have recently expanded the law’s application to cover the disruption of traffic, the blocking of roads, the broadcasting of “rumours,” the possession and/or sale of weapons, and the hindering of the functioning of the state.

According to rights lawyer Ahmed Seif, four out of six articles of the emergency law suspended last year by the former regime were re-enacted by SCAF following the recent revolution - a revolution that was, ironically, initially triggered by popular resentment against both police abuses and the hated emergency law itself.

Although rights groups such as Amnesty International have described the law’s resurgence as “the biggest threat to rights since the January 25 revolution,” few participants showed up for the two demonstrations that were recently staged to protest its extension. And while most political parties and movements have condemned the extension of the law, some have argued that - given current political circumstances - it may have little impact in practice.

Both the Cabinet and SCAF have so far issued several laws widely perceived as restricting freedoms. These include an official ban on strikes and demonstrations that threaten to hinder the functioning of the state, and another aimed at combatting “thuggery.” Meanwhile, the emergency law remains in effect while civilians continue to be hauled before military tribunals.

In fact, most of those arrested since Mubarak’s ouster - civilian or otherwise - have been tried by military courts. Since the revolution, more than 12,000 civilians are estimated to have stood before military prosecutors.

The law banning strikes, by contrast, has only been applied on a small scale, including once on a Petrojet workers’ strike in which five strikers received one-year suspended prison sentences. The largest popular campaigns have been those opposed to the military trial of civilians, with hundreds of thousands of protesters reoccupying Tahrir Square on 9 September to demand that civilians only be tried in civil courts.

International rights watchdog Amnesty International believes that the recent expansion of the emergency law will be as harmful to Egypt’s human rights landscape as the use of military tribunals on civilians. In a recent statement, Amnesty declared that the use of both military and emergency courts represented a violation of the citizen’s right to fair trial and denied defendants the right to appeal, noting that such sweeping police powers “have been the cause of Egypt’s worst human rights abuses over the last 30 years.”

Rights lawyer Ahmed Ragheb, however, argues that the expansion of the emergency law at this point might not change that much on the ground. “Expanding the emergency law is just a way of spreading fear, since it technically allows police to issue arrest warrants,” he told Ahram Online. “But that doesn’t mean police will do so.”

“The military council’s choice to revert to the use of the emergency law can actually be viewed as a success for popular campaigns against the use of military trials, since the state might begin referring civilians to civil courts instead of military courts,” Ragheb added. “But those arrested under the emergency law would still be tried in Emergency State Security Courts, verdicts of which, like military courts, cannot be appealed.”

Ragheb went on to explain that the constitutional declaration announced following the March referendum on constitutional amendments stated that the emergency law must be renewed every six months - and only if approved by national referendum. In other words, constitutionally speaking, the emergency law should only remain in effect if approved for renewal by a popular vote.

But Ragheb says it remains legally unclear when exactly such referendums should take place. “It should either be held six months after the day the declaration was originally announced or six months after the day the next elected government takes over,” he said. “This is likely to stir considerable debate now that we’ve reached the six-month point following the declaration.”

Judge Tarek El-Bishry, a member of the SCAF-appointed committee that drafted the constitutional amendments approved in March, recently told news channel Al Jazeera that, according to the referendum results, the emergency law should be done away with entirely. He explained that article 59 of the approved amendments states that the emergency law cannot be extended more than six months from the day of its enactment, unless its extension is approved by the public.

Technically, therefore, since the approved amendments were announced on 20 March, the state of emergency has, since September 19, no longer been in effect, El-Bishry said.

Responding to El-Bishry’s statements, a military source on Wednesday confirmed to news agency MENA that Egyptian emergency laws would continue to function until the end of June 2012.General AdelEl-Moursi stressed that SCAF had not declared a state of emergency, explaining that a two-year extension of the state of emergency had been passed by presidential decree in June 2010. It will expire on 30 June 2012.

"The constitutional declaration announced by the military council in March states that all laws and regulations approved before the declaration are valid and to be respected," said El-Moursi.

He went on to stress that SCAF was authorised - as the country's de facto ruler - to make any changes deemed necessary to existing laws and had therefore expanded the scope of the law last week.