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Keeping courts in a state of emergency
Why will Egypt have been under a state of emergency for nearly 18 months when the most recent extension ends in October? Emergency State Security Courts are a big reason.
 
 
 

Parliament approved on June 22 President’s Abdel Fattah al-Sisi’s decree to renew the state of emergency for three months by a two-thirds majority of its members in a standing vote.

The extension of the third state of emergency will come into effect at 1 am on July 14. By the time this new term expires on October 13, Egypt will have been under the state of emergency for 18 months.

The protracted nationwide state of emergency has not been uncontroversial, however. While Article 154 of the Constitution authorizes the president of the republic to declare a state of emergency after consulting with the Cabinet, a declaration which must be reviewed and approved by Parliament within seven days, the article also includes language that sets the maximum time for a state of emergency at three months, which can only be extended once for an additional three months by a two-thirds majority vote in Parliament.

Sisi and Parliament have effectively circumvented this constitutional restriction by letting the state of emergency expire once it has reached its six-month maximum, before redeclaring a new state of emergency.

In the eyes of constitutional law expert Salah Fawzi, who was on the 10-expert member committee that prepared an earlier draft of the 2014 Constitution, the language of Article 154 is “ambiguous and a hindrance to the interests of the state. It is to the credit of the executive branch of government that it thought of an interpretation of [this article] that is convenient for the country’s situation.”

“[The article] fails to address the fact that no one would be able to tell how long it would be before a threat to the country — whether terrorism or a natural disaster — has passed,” Fawzi says.

However, while Sisi’s government has several tools at its disposal to wield the type of control necessary to address what it sees as “threats to the country,” the 1958 Emergency Law, which was amended before Parliament approved Sisi’s first declaration of a nationwide state of emergency in April 2017, has been one of the most prominent political mechanisms deployed. This is despite the fact that there exists applicable laws (such as the anti-terrorism law, and the Law to Regulate Terror Group and Terrorist Lists) that stipulate some of its provisions to the letter, not to mention the amendments that are constantly being introduced to the Penal Code and the Criminal Procedure Code, which aim to expedite the litigation process and prevent “terror” crimes.

While for constitutional law expert Mohamed Zaki, the purpose of enforcing the Emergency Law and the two terrorism laws together is to tighten the government’s grip on security, judicial sources that spoke to Mada Masr point to a main deciding factor in decision to maintain the state of emergency: Emergency State Security Courts.

Emergency State Security Courts as the deciding factor

“Look for what makes the Emergency Law different from the anti-terrorism law,” says a high-ranking judicial source at the Supreme Administrative Court (SAC), who spoke to Mada Masr on condition of anonymity. “The Emergency Law has been in effect for over a year. But, in practice, only the article pertaining to the State Security Emergency Court has been applied.”

An ESSC may only convene when the Emergency Law is in effect. Its rulings are referred to the military ruler — “the President of the Republic or whomever he commissions — to be ratified.” Once ratified, a ruling becomes final and may not be appealed. The only recourse would be to submit a grievance to the military ruler, but the complainant would then relinquish their right to benefit from the legal principle that provides for an appellant not to be prejudiced by the fact that an appeal was lodged. As such, a grievance may land the complainant harsher punishment. Additionally, the military ruler, or whoever is commissioned to act in his stead, may empower the ESSC with jurisdiction over certain crimes through the issuance of a decree, in addition to other crimes punishable by public law. 

A State Council deputy head, who spoke to Mada Masr on condition of anonymity, contends that the ESSC is a special tribunal, whose composition may at times include military officers, not only judges. He points out that, under this law, a ESSC is to be composed of a first instance court judge in the event of a misdemeanor or any offense punishable by imprisonment and/or a fine. In the event of a felony, it is to be composed of three judges who are to be appointed by the president, with consultation from a justice minister. The president may, however, add one judge and two Armed Forces officers of a lieutenant’s rank or higher to the composition of a tribunal adjudicating in a misdemeanor, or three judges and two top brass officers on a tribunal adjudicating a felony, after consulting with the defense minister.

In its current application, the Emergency Law has been imbued with certain advantages over other pieces of national security legislation, according to the SAC judge. Delegated by the president to exercise the executive authorities enshrined in the Emergency Law, former Prime Minister Sherif Ismail issued a decree to qualify the law’s application on only one occasion. It requires the public prosecution to refer cases pertaining to offenses laid out in 10 specific laws to the Emergency State Security Courts, the judicial source elaborates.

The prime minister issued a decision on October 7, 2017 that requires the public prosecution to refer cases involving crimes related to the laws of assembly, supply and rations, pricing and profit margins, firearms control and ammunition, the sanctity of houses of worship, protest and vandalism of public property, as well as cases in which the defendant is accused of infringing on the freedom to work of others to the ESSC, which was formed in accordance with the Emergency Law and convened as of the date on which the state of emergency took effect – on April 10, 2017 – and remained in session until October 2017. And immediately after Sisi made his third state of emergency proclamation, which took effect on April 14 and will remain in effect until July 13, the prime minister renewed his decision, requiring the public prosecution to continue referring defendants in cases related to these 10 statutes to the same ESSC formation.

The State Council deputy head who spoke to Mada Masr notes that the 2014 Constitution prohibits special tribunals.

Indeed, Article 97 of the Constitution stipulates, “The right to litigation is safeguarded and guaranteed to all” and “special tribunals are prohibited.”

But Fawzi contends that any arguments over the constitutionality of ESSCs must be had in court. “If anyone claims that the Emergency Law — and the composition of the ESSC that it entails — contravene that article, they should go to the Supreme Constitutional Court (SCC),” he says. “The Constitution cannot speak for itself, and no one [else] has the right to presume to [conclusively] interpret its provisions. Laws that contravene the Constitution remain applicable until they are ruled as unconstitutional by the Supreme Constitutional Court or amended by Parliament.”

The constitutional expert also argues that, while the Constitution provides for the prohibition of special tribunals in Article 97, it stipulates in Article 224 that all provisions stipulated in laws and decrees that were promulgated before the Constitution came into force shall remain applicable until repealed or amended.

Parliament approved amendments to the Emergency Law at the same time as the April 11, 2017 presidential decree to proclaim a countrywide state of emergency. The amendments were proposed by Alliance to Support Egypt coalition MPs after the SCC ruled in 2013 that two paragraphs in the law were unconstitutional. Under the amendments, which were ratified and promulgated by Sisi on April 28, 2017, police are authorized to arrest suspects without a warrant from the public prosecutor and detain whoever poses “a threat to the public security” indefinitely, even if a judicial investigation is not opened or the detainee is not indicted.

Defunct legislation?

For the State Council deputy head, many features of the Emergency Law have been replaced by more recent legislation.

It is an established principle of law, he tells Mada Masr, that new laws supersede older ones. When this principle is applied to the anti-terrorism law promulgated in 2015 and the Emergency Law promulgated in 1958, the fact that the anti-terrorism law stipulates a number of the same provisions as the Emergency Law entails that these should supersede those stated in the Emergency Law, the judge says.

The State Council deputy head points out that if a terror threat or an environmental disaster occurs, the anti-terrorism law grants the president the power to decree the appropriate measures to maintain security and public order, including the evacuation of some areas, establishing a security cordon or imposing a curfew. The law stipulates that the presidential decree must specify the area where these measures would apply and holds for a maximum duration of six months. The Emergency Law also provides for the evacuation and security cordons, regulating means of transportation, and limiting and restricting transport between different areas.

According to the SAC source, upon coming into effect, new provisions should prevail over earlier ones. He also points out that, in practice, many Emergency Law provisions have been voided of their substance and reiterated as part of other laws. The exception, the source says, are the articles pertaining to the composition of the ESSC, especially Article 9, which bestows upon the president of the republic or whoever is commissioned to act in his stead the authority to refer offenses punishable by public law to state security courts.

Nevertheless, the court composition-related provisions are not identical in the anti-terrorism and the emergency laws, the State Council deputy head notes. The former provides that a terrorism court shall be purely judicial and that its rulings shall be under the jurisdiction of the Court of Cassation; under the anti-terrorism law, he explains, an accused terrorist is tried by a court of judges, and enjoys the right to appeal before a higher court. Under the Emergency Law, however, some ordinary citizens are tried for ordinary crimes before a special court, whose rulings may not be appealed, he says.

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