What Sisi can and can’t do under a state of emergency
 
 

With reports of approximately 50 people dead and over 100 injured in two Palm Sunday bombings, President Abdel Fattah al-Sisi emerged from a National Defense Council meeting late Sunday night and spoke to the nation in a televised address. Among the declarations Egypt’s president announced in a brief statement that tilted between gestures toward national unity and external threats was his intention to declare a three-month national state of emergency.

If a state of emergency is indeed enforced, it would be the first nationwide application since the adoption of the 2014 Constitution — which imposed unprecedented limits on the president’s powers to order an indefinite state of exception — and a 2013 Supreme Constitutional Court ruling that declared certain features of the 1958 emergency law unconstitutional.

A one-month state of emergency was declared in the summer of 2013 following the violent dispersal of Rabea al-Adaweya sit-in, a period during which the 2012 Constitution was suspended. The government has instituted a state of emergency in parts of North Sinai in a semi-continuous manner over the last three years, most recently in January 2017.

Two questions present themselves in the wake of Sisi’s declaration on Sunday night: What would a state of emergency mean under the current Constitution and emergency law, and how would a state of emergency in 2017 differ from the long period of exception rule wielded by ousted President Hosni Mubarak during his three decades in office?

Necessary procedures preceding the state of emergency

Sisi asserted that the state of emergency he was calling for would be implemented in accord with the “required legal and constitutional procedures.”

These legal procedures are delimited by Article 154 of Egypt’s 2014 Constitution, which states that the president must consult the Cabinet before issuing an official declaration, after which the decision must be submitted to Parliament.

A parliamentary majority must approve the declaration within seven days of its issuance for the three-month state of emergency to go into effect. Once this period elapses, it can only be extended for an additional three months by a two-thirds majority vote.

However, as with the semi-continuous imposition of exception in North Sinai, the government and Parliament could circumvent the term limits established by the 2014 Constitution by allowing a few days or weeks to elapse after each six-month period.

If Parliament deviates from the executive authority’s desire to reinstate a state of emergency, the president does not have the power under the 2014 Constitution to dissolve Egypt’s legislature during a state of emergency, a move which would grant him the powers normally invested in the House of Representatives.

The Supreme Constitutional Court ruling that limits the state of emergency’s reach

Only one month before the ouster of former President Mohamed Morsi, the Supreme Constitutional Court issued a ruling on June 2, 2013 that declared some of the features of the 1958 emergency law unconstitutional, a decision that took the court 20 years of deliberations after the appeal was filed in 1993.

The court’s ruling annulled an important part of the law, which had given the president the right, under a state of emergency, to arrest and detain those suspected of endangering national security and to search people and property without abiding by the limitations of the Criminal Procedures Code. The ruling stripped the president of the ability to direct the interior minister to conduct warrantless arrests and administrative detentions, which was an infamous feature of the state of emergency under deposed President Hosni Mubarak, who kept the exceptional law in place for all of his 30 years in power.

The law has not been amended since the Supreme Constitutional Court’s ruling, meaning the annulled article has not been replaced.

Parliament can now amend the emergency law to reinstate some form of administrative detention that would comply with the Supreme Constitutional Court’s 2013 ruling. A potential amendment would require a two-thirds parliamentary majority to be ratified. Failing such a move, Sisi would be left with the remaining affordances of the emergency law. 

What powers remain under a state of emergency?

Despite this limitation, the emergency law still grants the president a number of exceptional powers, significantly the use of State Security Emergency Courts for the duration of the three-month period.

The emergency law grants the president, and those acting on his behalf, the power to refer civilians to State Security Emergency Courts, which elapsed in 2012 when the state of emergency expired. There is no appeal process for State Security Emergency Court verdicts, which would ensure the expedited prosecution that the president has called for to combat “terrorists.” The state of emergency also subordinates the emergency courts’ rulings to executive approval, with the president holding the right to amend, annul, suspend or order a retrial in any decision taken by the courts.

The emergency law also extends the remit of presidential powers, granting the right to issue written or oral directives related to: monitoring and intercepting all forms of communication and correspondence, imposing censorship prior to publication and confiscating extant publications, imposing a curfew or ordering the closure for commercial establishments, sequestration of private properties, as well as designating areas for evacuation.

Article 4 of the emergency law grants the Armed Forces the authority to address any violations of these powers.

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