By Moataz El Fegiery
The application of state of emergency in Egypt infringes Article 4 of the ICCPR, and it has unjustifiably suspended a set of fundamental rights. The state of emergency has been applied in Egypt continuously since 1981 until it has become a permanent situation in which there are many fundamental rights are suspended particularly the right of fair trail and the right of personal freedom and safety....
The application of state of emergency in Egypt infringes Article 4 of the ICCPR, and it has unjustifiably suspended a set of fundamental rights. The state of emergency has been applied in Egypt continuously since 1981 until it has become a permanent situation in which there are many fundamental rights are suspended particularly the right of fair trail and the right of personal freedom and safety....
The application of international human rights law during states of emergency has been one of the most critical issues for academics, lawyers and human rights practitioners all over the world. The derogation provisions in international and regional human rights instruments were invented to help states protect their citizens and constitutional institutions when facing severe internal or external threat in a way that balances state sovereignty and individual freedoms. However, many states whether democratic or not have misused this right to unjustifiably limit human rights or normalize the interim derogation from their legal obligations. This trend has increased tremendously since the terrorist attack of September 11, and under the pretext of combating terrorism.
Egypt has maintained the state of emergency and anti-terrorism legislation over decades in a way that has transformed the derogation provision from being an interim situation into a permanent one with serious implications on the enforcement of international human rights law. Combating terrorism has been the main justification given by the Egyptian government for the prolonged application of the emergency law which has been in force since 1981, and was renewed for an additional two years in March 2008. The law gives gigantic powers to the executive branch of government and particularly the president who can issue military decrees that have the power of legislation. He can also refer civilians to the military courts when they are accused of committing crimes against state security. The emergency law also gives power to the security agencies to administratively detain individuals on the ground that they threaten national security. The law has allowed the establishment of state security courts to examine crimes related to state security which do not provide the charged persons with the minimum standards of a fair trial. It has actually created a parallel legal judiciary system that is controlled by the executive branch.
Additionally, the Egyptian authorities passed an anti-terrorism law in 1992, which introduced controversial articles into the penal law and criminal procedures law. These articles adopted a very broad and vague definition for the crime of terrorism, increased the powers of the security and the prosecution, and overly toughened the punishment for crimes of terrorism. These policies have been recently supplemented by a very alarming development after the amendment of the constitution to include a special article on the fight against terrorism which seriously weakens constitutional rights. This new modification is regarded by human rights practitioners as a clear normalization of the state of emergency under the name of anti-terrorism law.
The International Covenant of Civil and Political Rights (hereinafter ICCPR) stipulates certain conditions that enable states to derogate from their legal obligations. Accordingly, the states powers are not absolute at time of derogation. This rule is supported by the jurisprudence of the UN treaty bodies. In this framework the paper argues that the application of state of emergency in Egypt infringes Article 4 of the ICCPR, and it has unjustifiably suspended the fundamental rights of the ICCPR.
The proposed paper will review the common interpretation of the derogation provision in the ICCPR. Then, it will assess the legal ground of the application of the state of emergency in Egypt from the perspective of the international human rights law, and study the implications of the emergency law and the anti-terrorism framework on the enforcement of political and civil rights in the country particularly the practice of administrative detention the right of fair trail.
II) The interpretation of Article 4 of the ICCPR
Several academic sources have thoroughly analyzed the developments of the interpretation of the derogation provision in ICCPR and other regional human rights instruments. Most of these resources tend to introduce a very progressive interpretation biased towards the protection of human rights during states of emergency. These resources provide an overview of the legal principles that rule the state derogation from its human rights obligations, the situations that allow states to apply the derogation provision and the non-derogable rights during states of emergencies.
Hartman has concluded that the derogation provision during a state of emergency represents a real challenge for human rights’ scholars and bodies, and experiences have shown that human rights are at severe risk where states of emergency are applied. His paper analyzes “the limited privilege of derogation contained in Article 4 of the Covenant on Civil and Political Rights and [ ] suggest improvements for the implementation of Article 4 by national and international authorities.”
A. The definition of the situations in which states are allowed to derogate from its legal obligations.
Article 4 of ICCPR stipulates that derogation provision is applicable on "public emergencies which threaten the life of the nation, and the existence of which is officially proclaimed." This condition is a prerequisite before states can invoke the applicability of article 4. The dilemma here is which situations are compatible with this condition in the absence of an exclusive definition or criteria. To clarify this issue, The HRC committee stated that "[n]ot every disturbance or catastrophe qualifies as public emergency which threatens the life of the nation, as required by article 4, paragraph 1." In this regard, some situations have been mentioned by the HRC that could lead to the application a state of emergency. According to the Committee, these situations can include "international and non international armed conflict, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial incident."
The term "threaten the life of the nations" in article 4 has been used to ensure that the application of state of emergency will be very limited to certain circumstances that derogation is really needed by states to be able to regain the normal life of the nation. This understanding has been confirmed by the European Court of Human Rights considered that a situations which threaten the life of the nation "is a situation of crisis or emergency which affects the whole population and constitutes a threat to the organized life of the community of which the state is composed."
B. The ruling principles of practicing derogation provision.
The HRC's general comment of article 4 and the jurisprudence of the committee demonstrate a set of conditions that states should comply with before and during the application of the derogation provision. These conditions are the official proclamation of the state of emergency, the temporal nature of the state of emergency, the determination of the geographical scope of the state of emergency, the principles of necessity, proportionality, and non discrimination. States are also obliged to formally notify the UN's secretary general and other state parties about the nature and scope of the derogation.
Article 4 paragraph 1 of the ICCPR stipulates that "the states parties to the covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation." In fact, this is a central condition that limits the behavior of states authorities during the states of emergency. It is clear from this article that states powers are not absolute to derogate from their obligations in the Covenant, but any derogation must satisfy the principles of necessity and proportionality. These principles "will ensure that no provision of the covenant, however validly derogated from, will be entirely inapplicable to the behavior of a state party." States parties are accordingly required to present reasonable justifications for any suspension of the rights which exist in the covenant during the state of emergency.
When states apply any measures that are allowed by article 4 of the ICCPR during the state of emergency, they are bound by the principle of non discrimination on the ground of sex, race, color, language, religion, or social origin. It is unfortunate that discrimination on the ground of national origin has not been prohibited. States rejected the reference to national origin to justify its discriminatory measures against the nationals of enemies in war time. However, the anti-terrorism policies in the aftermath of September 11 have demonstrated how states have discriminated against aliens in a way that go beyond the classical justification of practicing discrimination against enemy of nationals during the war time.
C. The legal debate on the non-derogable rights.
The reference to a list of non derogable rights during the state of emergency doesn’t mean that all other rights are derogable without limitations, but as we mentioned above, the practice of derogation provision is conditioned on certain principles that narrow the state ability to suspend political and civil rights during the state of emergency. However, the explicit reference to a group of rights which are non derogable in Article 4 paragraph 2 of the ICCPR ensure that under any circumstances states are entirely prohibited from violating these non derogable rights.
The non derogable rights as stipulated in Article 4 Paragraph 2 are:
article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfill a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion).
The issue of non derogable rights triggered a remarkable legal debate as some of the other fundamental rights have not been listed in Article 4 particularly the fight of fair trial and the right not be arbitrarily detained. In reaction to the legal debate on the non derogable rights, the Human Rights Committee enlarged the scope of non derogable rights.
Stavros focused on the right of fair trial under states of emergency. He concluded that minimum standards of fair trail are guaranteed by international human rights law during states of emergency whether before a normal court or special tribunals. These standards include “adjudication by an independent body, independent legal assistance, freedom from coerced self-incrimination, full disclosure of the case of the prosecution to be effectively tested by the accused before the court and a full opportunity to disprove the charges, coupled with the possibility of international supervision in loco.” Kevin Boyle underlined the legal arguments of the UN’s Human Rights Committee to enlarge the list of non-derogable rights during the states of emergency to include minimum standards of the right of fair trial and the rights of detainees to challenge the legality of their detention.
To elaborate, the general comment No 29 concerning the derogation provision underlined that there are a set of procedural safeguards that should be secured to protect the non derogable rights. The Human Rights Committee explained that,
It is inherent in the protection of rights explicitly recognized as non derogable in article 4, paragraph 2 that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.
Furthermore, the Committee considered that there are certain elements of the right of fair trial which are non-derogable during the states of emergency. The committed pointed out that,
Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.
In conclusion, according to Article 4 of the ICCPR, there are a set of rights which are non-derogable during the states of emergency. According to the common interpretation of Artilce 4, there are also certain procedural safeguards that are essential to protect the non-derogable rights including some fundamental elements of the right of fair trial and the right of detainee to challenge the legality of their detention.
III) The State of emergency in Egypt
A. Enormous powers to the executive: the constitutional and legal ground of the state of emergency in Egypt.
The Egyptian constitution of 1971 establishes a system of emergency powers which according to Article 148 of the constitution declared by the president of the republic and approved by the parliament. Article 148 says that,
The President of the Republic shall proclaim a state of emergency in the manner prescribed by law. The proclamation must be submitted within the following fifteen days to the People’s Assembly for a decision. In case the People’s Assembly is dissolved, the matter shall be submitted to the new Assembly at its first meeting. In all cases, the proclamation of the state of emergency shall be issued for a limited period which may only be extended with the approval of the Assembly.
The constitution sets the ground for a system of exceptional courts whether the State Security Courts or the Military Courts. It has not mentioned any details about the structure of these courts, their jurisdiction or their proceedings, and has kept that for the law. Article 171 stipulates that, "the law shall regulate the organization of the State Security Courts and fix their competences as well as the conditions to be fulfilled by the judges sitting on those courts." Article 181 says that, "the law shall organize the military courts and determine their competences within the framework of the principles of the Constitution."
The emergency law No 162 for 1958 was decided by president Gamal Abd El Nasser. It was applied immediately after the eruption of the war between Egypt and Israel on 5 June 1967, and continued until 15 May 1981. Then, it was adopted again in October 1981 after the assassination of President Anwar El Sadat at the hand of violent Islamists, and continuously applied until now.
Article 3 of the emergency law allow for numerous powers for the executive without being restricted by the guarantees that are provided by the constitution and the legislations to protect right to freedom and personal safety and right to privacy. According to the law the president have also the powers to restrict certain human rights, such as freedom of assembly and expression.
According to Article 3 (1) of the Emergency Law, security is allowed to detain criminal suspects and any other “persons who are dangerous to public security and order.” The detainees can challenge their detention after 30 days of their detention before the supreme security court which should “decide within 15 days whether to release or detain the suspect. The minister of interior can contest the release until 15 days after the decision, after which the court has another 15 days to decide on the case.” The law has not mentioned a maximum time limit for the practice of the administrative detention.
The law has established an exceptional judiciary system namely the supreme state security court which is mandated to examine crimes related to state security and other offences such as public demonstrations and gatherings. The referral of cases to this court is exercised by the president. Article 12 of the Emergency Law allows the president to “order for retrial a case that has already been resolved by an Emergency Supreme State Security Court.” Besides the supreme state security court, the president can refer civilians before military courts. "Article 6/2 of the Law on the Military Judiciary 25/1966 states that, "during a state of emergency, the President of the Republic has the right to refer to the military judiciary any crime which is punishable under the Penal Code or under any other law."
In addition to the exceptional powers which exist in the emergency law, the government has passed an anti-terrorism law in 1992 which established special legal procedures for suspected terrorists. According to Amnesty International, The law "gives even greater powers to security bodies and the Public Prosecutor, and further limits individuals’ rights, including restricting freedom of expression, association and assembly. It too has been used as the legal basis for trials of civilians before military courts, a practice that violates international standards."
The law has amended the criminal law and the criminal procedures law. The law adopted a controversial definition for the crime of terrorism which has been constantly criticized by human rights groups and UN's experts. The definition has been regarded as "a very broad and general definition of terrorism, which seems to allow it to be used against dissidents and members of the opposition and which has led to an increase in crimes punishable by the death penalty."
According to article 206 (bis) of the criminal procedures law, the public prosecutor has the power to detain a suspected terrorist for up to six months. This is unlike the other ordinary crimes in which the prosecutor can only detain a suspect for 4 days then bring him or her before a judge.
B. Assessing the state justifications of declaring the state of emergency in light of the international human rights
The struggle against the militant Islamic groups has always been the justification for the application of the emergency law since 1981. The government recently contends a set of factors which in its view threaten the internal stability and the national security, including the tensions on the borders with Gaza, the danger of the terrorist organizations Al-Qaeda and Hezbollah and the radical Islamist groups in Egypt and the Middle-East.
There were numerous Islamic armed groups which were very active in conducting terrorism operations in Egypt since 1970s and in the following two decades such as Al Gamaa Al Islamia and El Jihad. These traditional groups have been not active any mare over the last 10 years. Some of their leaders renounced violence and went trough what so called “the declaration of repentance.” However, some new small violent groups have grown up over the last 10 years which have been inspired by the trans-national Islamist aims, but there are little information about the structure and leadership of these new groups. The terrorist attacks which were occurred in Egypt from 2004 to 2006 are attributed to some of these new groups. The government itself has admitted that "security efforts have largely succeeded in eradicating the phenomenon of terrorism, in spite of its spread throughout all other parts of the world." However, the state of emergency has extended until March 2010.
Consequently, the use of emergency law has not become a tool to temporally combat tangible threats to the existence of the nation. It has actually become a permanent situation that is not justified at all according to the international human rights law. This meaning has been confirmed by the HRC in 1993. The threats invoked by the government to validate the use of emergency law can be dealt with under the normal Egyptian legal system and the legal limitations that are permitted by ICCPR to protect public order. The human rights committee (HRC) has expressed its worry that the state of emergency in Egypt has become "a semi permanent state of emergency ever since," and asked the government to review the need for the emergency law.
The same meaning has been underlined by the special rapporteur of human rights while combating terrorism who pointed out that, “a state of emergency almost continuously in force for more than 50 years in Egypt is not a state of exceptionality; it has become the norm, which must never be the purpose of a state of emergency.” However, he has acknowledged that Egypt experienced in the past some situations which threatened the life of the nation and truly required exceptional powers to restore the state of normalcy. However, the measures which have been always taken by the state of emergency has flagrantly gone beyond the legal principles stipulated by article 4 in ICCPR and have unjustifiably restricted a lot of fundamental rights. Moreover, Egypt has not notified "the other States parties to the [ICCPR], through the Secretary-General, of the provisions from which it has derogated and of the reasons by which it was actuated, as specifically required by article 4, paragraph 3, of the Covenant."
IV) The practical consequences of the state of emergency on the enforcement of the ICCPR in Egypt with special focus on the prolonged detention and the right of fair trial.
Political scientists have regarded the continuous application of state of emergency in Egypt as one of the survival strategies of the Egyptian authoritarian regime that was consolidated after the military coup in 1952. It provides the ruling elite with legal flexibility to undermine the growing influence of its political competitors particularly the Mulism brotherhood which is a peaceful political group inspire Islamic Sharia in its platform. In this regard, Diane Singerman concludes that, "Perhaps the increasingly common use of state security courts, emergency law, and detention without charges reflects growing insecurity among the elite." He also adds that, "recourse to emergency law, security courts, and state-sanctioned violence against detainees and political activists are troubling phenomena that have accompanied Egypt’s ambivalent and largely rhetorical commitment to democratization."
A lot of recent academic resources have examined the impact of the global war against terrorism on international human rights law. Fitzpatrick has argued that the war against terrorism may reformulate the derogation provision particularly "in relation to the temporal element and the non-derogability of the prohibition on arbitrary detention and fair trial rights.” He added that anti-terrorism policies have paved the way for “the prospect of a permanent emergency and the impact on principles of legality . . . proportionality, consistency with other international obligations, and non discrimination in derogation measures.”
Schorlemer has studied the human rights implications of the war against terrorism. She stated that “there is a dangerous tendency to legitimize human rights violations in after math of September 11 under the pretext of combating terrorism.” Human rights abusers took use of this atmosphere to validate their own experience in what they considered “fighting against terrorism,”such as Egypt, Russia and Israel.
In this framework, the problem of the emergency law in Egypt is not only that it imposes measures which degrade from the international human rights law and constitutional guarantees of public liberties when confronting suspected terrorists, but it is also the excessive arbitrary implementation of this law to punish and intimidate opposition groups and to restrict freedom of expression.
Human rights records in Egypt have shown us that the emergency law has been widely functioned by the government to protect the ruling elite rather than the life of the nation. The state of emergency has been regarded by many political commentators as a tool for the authoritarian regime to enhance its authority over the society.
A. The prolonged detention and the right of freedom and personal safety.
The administrative detention is a long standing challenge of human rights in Egypt. The government has failed in determining the exact number of detainees. However, according to different non governmental sources it seems that there are thousands of detainees whom their liberty deprived by the emergency law. The detention of individuals on the ground of being “dangerous to public security” contravenes with the principle of legality as the concept lacks any clarity and fails to indicate any criteria to describe act or person as “dangerous to public security and order.” The administrative prolonged detention is the main source of many other serious violations for other rights which cannot be derogated under any circumstances namely the prohibition of torture or cruel, inhuman or degrading punishment. It also undermines the right of fair trial and the right to freedom and personal safety.
The emergency law has no guarantees to prevent the arbitrary use of the administrative detention by the security agencies. State Security usually denies the implementation of the release orders which have been received by detainees from the state security courts. As soon as detainees get these release orders, the ministry of interior can renew their detention by other detention decrees.
The government pretends that the administrative detention is a preemptive measure to combat terrorists. Conversely, the practice of the administrative detention since 1981 has shown that a large number of political activists and other normal people who have not committed any crimes or don't constitute any threat to the national security, have become victims for the administrative detention which in many cases put those people in detention for more than 10 years.
According to human rights reports including the observations of the UN treaty bodies, the state of emergency and the anti-terrorism law No 97 for 1992 have covered the aggressive and illegal conduct of the security agencies against Egyptian people over decades particularly the use of torture in prison and detention places. This issue has been stressed on by the UN Committee against Torture which “expressed particular concern at the widespread evidence of torture and ill-treatment in administrative premises under the control of the State Security Investigation Department, the infliction of which is reported to be facilitated by the lack of any mandatory inspection by an independent body of such premises.”
Throughout the previous three decades, administrative detention was massively practiced following terrorist operations. Detainees were kept in prisons for long times and sometimes for years without charges. Furthermore, administrative detention was used against families of suspected terrorists to pressure them to guide about their relatives or to intimidate suspected terrorists to surrender themselves to the security. During 1990s and amid the intensive security campaign against armed Islamic groups, human rights organization accused the government of using these methods in a systematic way across Egypt. In 1995, Human Rights Watch released a report titled Egypt: Hostage-Taking and Intimidation by security Forces. According to the report,
The victims of "hostage-taking," the term used by victims and Egyptian lawyers to describe the arrest of family members for the purpose of forcing fugitive relatives to give themselves up, have since 1992 primarily been the relatives of known or suspected Islamist militants who are wanted by authorities on suspicion of carrying out violent crimes against the state. Family members of both sexes and all ages have been targeted and detained.
This pattern of human rights violations in the context of fighting terrorism continued over the last decade. In another recent example and according to human rights watch and other Egyptian rights groups, the Egyptian government detained around three thousand persons including relatives of the suspected terrorists who were identified by the security, after the terrorist attack occurred in Taba, Sinai on October 2004.
The government has also used the emergency law to detain political activists who have engaged in peaceful activities that are protected by international human rights law. In many occasions, there has been massive and random detention among peaceful demonstrators or strikers on the ground of their critical activities against the government and its policies. For instance, “in January and February 2003, state security forces used emergency law provisions to detain without charge or trial persons involved in peaceful demonstrations opposing military intervention in Iraq and in support for the Palestinian uprising against Israeli military occupation.” In 2008, and following workers strike and demonstrations in the city of El-Mahala El-Kobra calling on government to guarantee basic economic and social rights, the security launched a wide campaign of administrative detention. According to an Egyptian rights group, "Hundreds of workers and inhabitants of El-Mahala were detained, in addition to a number of bloggers, correspondents and journalists who participated in covering the event." Then, 47 persons were refereed to state security courts on the ground of their involvement in the strikes and demonstrations
A) The right of fair trial: The establishment of an exceptional judicial system
The state of emergency in Egypt has created a parallel judicial system that seriously lacks the international standards on fair trial. The pillars of this parallel system are the state security courts and the military courts. Experience has demonstrated that this parallel system has been applied widely not only on suspected terrorists but on other political offences. In his research on the judiciary and politics in Egypt, Tamer Mustafa pointed out that, "the Emergency State Security Courts and, more recently, the military courts, have effectively formed a parallel legal system with fewer procedural safeguards, serving as the ultimate regime check on challenges to its power."
The Egyptian system of exceptional courts is in serious breach for the guarantees of the right of fair trial secured by the ICCPR. These courts deny individuals right, "to a fair and public hearing before competent, independent and impartial tribunal established by law, the right to have adequate time to prepare a defense, the right to be defended by a lawyer of one's choosing, and the right to appeal against conviction and sentences to a higher tribunal."
Since 1980s, there have been unsuccessful attempts to challenge the constitutionality of the States Security Courts and the referral of civilians before the Military Courts before the Supreme Constitutional Court which confirmed that the security courts are constitutional, as the established of the this exceptional judicial system is provided for by the constitution. Military and state security courts have sentenced close to 140 individuals to death since 1990 after unfair judicial proceedings and without having the opportunity to challenges these ruling before a higher court.
The use of military courts to trial suspected terrorists started in October 1992, but in the following few years numerous political activists were subjected to trial in the military courts on the grounds of their membership in moderate Islamist groups particularly the Muslim Brotherhood. The government argued that the purpose was "expedited trails," and it will be used only "in cases that require quick measures". HRW However, it was argued by legal scholars that the government was prompted to operate within the Military Courts because, "there were isolated cases in which the emergency courts handed down rulings that were quite embarrassing for the regime in the late 1980s and early 1990s." In these courts, the Minister of defense and the president have the powers to appoint the judges whom are military officers. Moreover, there are no legal safeguards for the defendants and the sessions are held secretly.
According to human rights groups, "Military courts...do not afford civilian defendants full due-process rights before an independent tribunal. The Egyptian military is part of the executive branch of government, and thus its judicial system lacks the greater independence of civilian courts." Defendants have no right to challenge the ruling before a higher court but the rulings should only be ratified by the president of country.
The Code of Military Justice has been modified in July 2007 to "allow persons convicted of terrorist offenses by a military court to appeal the judgment before the Supreme Court for Military Appeals. However, such review is restricted to questions of law and procedural issues only," and it doesn't introduce any substantial judicial proceedings to correctify the first military ruling if it is not fair.
The serious setbacks of the exceptional courts’ procedures usually trigger suspicions on the truthfulness of the subsequent terrorism’s cases that have been examined by the state security courts and military courts. In many cases, rights groups have accused the authorities of fabricating false allegations against defendants. In fact, in the absence of sufficient guarantees of fair trial, it is always difficult to assume the integrity of the interrogation, prosecution and trail of suspected terrorists.
The exceptional courts have ruled on politically motivated cases that have no relations to terrorist operations which have been the main reasons for the enforcement of the state of emergency. For examples, in 2003 a political dissident was trialed before a state security court after being accused of "sending false information to foreign bodies-foreign human rights organizations-which include, contrary to the truth, violations of human rights within the country," in violation of Article 80(d) (1) of the Penal Code." The defendant was acquitted in March 2004. On 16 April 2008, the military court convicted 25 leaders of Muslim brotherhood organization of being members of legally banned group and for money laundering. They received prison sentences ranged from 3 to 10 years.
The exceptional courts were used also against protesting movements. For instances, in 2008, 47 persons suspected to be involved in labor strike in the city of El-Mahla were referred to the State Security Court. 22 of them were sentenced from 3 to 5 years imprisonment. In 2005, the security forces intervened in a dispute between a landowner and villagers in the village of Sarando in the northwestern governorate of Baharriya. Human rights groups accused the security of "terrorizing inhabitants with ongoing night-time raids, arbitrary arrests including holding women and young children in illegal places of detention, beatings and humiliation, and confinement to their homes." 26 of the villagers including their lawyer were referred to the State Security Court under the charges of trespassing and ruining property resulting from conflict with a major landowner in the village of Sarando. Then, according the emergency law the president of the republic ordered the retrial of . . . [villagers] who hade been acquitted by the court.
Furthermore, the exceptional courts were also functioned in 2001 to punish adults engaging in homosexual relations. They were accused of practicing "obscene behavior." According to human rights reports, "the Emergency State Security Court for Misdemeanors in Cairo sentenced twenty-two of the defendants to prison terms ranging from one to three years. One defendant facing an additional charge of “contempt for religion” was sentenced to five years’ imprisonment. Twenty-nine other defendants were acquitted."
B) The normalization of the emergency law under the name of counter terrorism: The constitutional amendments of 2007
Fitzpatrick has argued that the war against terrorism may reformulate the derogation provision particularly "in relation to the temporal element and the non-derogability of the prohibition on arbitrary detention and fair trial rights.” He added that anti-terrorism policies have paved the way for “the prospect of a permanent emergency and the impact on principles of legality . . . proportionality, consistency with other international obligations, and non discrimination in derogation measures.”
The Egyptian constitution passed through a major process of amendment in May 2007. The government has introduced a new article in the constitution on counter-terrorism. The main objective of this article is to ensure that the coming new anti-terrorism law wouldn't be contested before the Supreme Constitutional Court. This is mainly because the planned anti-terrorism law will reportedly degrade from the constitutional rights and public liberties and will keep similar powers to the emergency law. The government has established a drafting committee for the new anti- terrorism law since 22 March 2006. However, until now no draft law has been made public.
Article 179 which adopted in the latest constitutional amendments permits the government to pass an anti-terrorism legislation without being restricted by the constitutional safeguards of human rights. It says that,
The state shall strive to safeguard the general discipline and security in the face of the dangers of terrorism. The law shall regulate the prosecution and investigation procedures required by the fight against these dangers in such a manner that the measures described in the first paragraph of Article 41 and the second paragraph of Articles 44 and 45 do not obstruct this fight, subject to the supervision of the judiciary.The President of the Republic may refer crimes of terrorism to any judicial body established by the Constitution or the law.
Article 41, 44 and 45 in the constitution which are mentioned in Article 179 are concerned with the prevention of detention without judicial warrant and the prohibition of searching homes without judicial warrants, and the right to privacy. Moreover, the article maintains the president power to refer terrorism cases to special courts which is the same power that is applied in the state of emergency. Human rights are expected be more threatened under article 179 particularly within the broad definition of terrorism as introduced in the anti-terrorism law No 79 for 1992. This approach of ambiguous and broad definition is likely to be kept under the new anti terrorism law.
In fact, Article 179 represents a very dangerous development on the future of human rights and rule of law in Egypt. Although the government has repeatedly promised since 2005 to lift the state of emergency and replace it with a new anti-terrorism law, the latest constitutional amendments strongly indicates the negative nature of the coming law which is expected to normalize the state of emergency under the name of counter terrorism.
The special rapporteur of human rights while combating terrorism has voiced this concern; he stated in a recent repot that,
Article 179, even if the state of emergency is lifted, is not conducive to a genuine move a way from practices that are facilitated by the emergency law framework and climate currently prevailing in Egypt. In short, article 179 of the constitution carries features of a permanent state of emergency, although under a new name.
The release of a new law based on article 179 actually means that Egypt will still apply emergency measurers without having reasonable grounds as articulated in article 4 of the ICCPR namely the threat to the life of the nation. The law would formally transform the emergency law to be a permanent situation in Egypt which represents a worrying precedent in the states practice of derogation provision.
V) Conclusion
Article 4 of the ICCPR has articulated certain conditions that must be respected during states of emergency. The derogation provision gives states flexibility to derogate from its human rights obligations to face any threats to the life of the nation only when strictly required by the exigencies of the situation and for a temporal period. There are a set of rights which are non derogable during states of emergency that are mentioned in article 4 of the ICCPR. However, the Human Rights Committee in its general comment No 29 has argued that there are other rights which must be respected during states of emergency to ensure the respect of the non derogable rights, such as the fundamental guarantees of fair trial, the right of effective remedies and the right of detainees to be brought before a judge to examine the circumstances of their detention.
The paper has argued that the application of state of emergency in Egypt infringes Article 4 of the ICCPR, and it has unjustifiably suspended a set of fundamental rights. The state of emergency has been applied in Egypt continuously since 1981 until it has become a permanent situation in which there are many fundamental rights are suspended particularly the right of fair trail and the right of personal freedom and safety. The State Security Courts and Military Courts which lack the basic guarantees of fair trial have been used in Egypt against suspected terrorist and other political groups. Administrative detention has been used systematically in an arbitrary way.
The government has failed to introduce a reasonable ground for the application of state of emergency over such a long time. Combating terrorism and fighting armed Islamist groups have been the main justification for the enforcement of the emergency law since the assassination of President Anwar El Sadat in 1981. Although the government itself has admitted that its security strategy has succeeded in eradicating terrorism in Egypt compared to other states in the world, it still insists on renewing the emergency law which will be in force until March 2010. The government publicized its plan to pass a new anti terrorism law. The constitution was accordingly amended to insert an anti-terrorism clause in the constitution which has constituted a very dangerous development on the future of human rights and rule of law in Egypt. The latest constitutional amendment strongly indicates the negative nature of the coming law which is expected to normalize the state of emergency under the name of counter terrorism. Human rights practices in Egypt have demonstrated that the continuous application of a state of emergency in Egypt can not merely be seen in the context of the state struggle against violent Islamist groups. Conversely, it has become a systematic technique to suppress political competitors and ensure the stability of the ruling elite.
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