Reports
Cairo: February 2003

 Introduction      Part one        Part two       Part three        Part four

The Effect of the Emergency Law on the Human Rights Situation

 In Egypt: 1992-2002

 The Emergency Law and its Impact on Fair Trial Standards 

The right to trial before a competent, fair and impartial court or tribunal plays a fundamental role in securing citizens’ rights and freedoms.  An independent judiciary is one that decides matters impartially, in accordance with the law and without any direct or indirect pressure or interference.[1]

Pursuant to the Emergency Law, the Summary and High State Security Courts were established in order to hear crimes involving violations of Presidential orders.  As outlined above, the President is empowered under the law to interfere with and influence the formation of the courts, contrary to the separation of powers.  Article 14 of the ICCPR provides a list of guarantees required to satisfy fair trial standards.  Specifically, every accused is entitled to:

v     Be informed promptly and in a language he/she understands the nature of the charge against him/her;

v     The necessary time and facilities required for preparing a defence for contacting a lawyer;

v     Be tried without undue delay;

v     Be present during the trial, and to be given the right to make a defence to the charges and to be provided with legal assistance;

v     Have a translator, if the trial is in a language that he/she does not understand;

v     Not be forced to testify against himself/herself or to confess his guilt. 

The ICCPR further provides that everyone convicted of a crime shall have the right to have a conviction reviewed by higher tribunal according to law (Article 14(5).

Contrary to international standards, the Emergency Law prevents a defendant from appealing the judgment of the court, and it gives authorities the right to execute these judgments.  Furthermore, Article 6 empowers the head of state to transfer any crimes contained in the Emergency law or any other law, to the military court jurisdiction.

On 8 February 1992, the Court of Administrative Justice delivered a judgment in the lawsuit brought by the accused in the two cases known as the “Returnees from Afghanistan” and “The Jihad Organization” (decision No 373 of 1992).  In those cases, the accused challenged the decision of the President to refer their cases to the military court.  The verdict held that the referral was indeed invalid. In response to this verdict, the state filed a lawsuit in the Supreme Administrative Court to abolish the lowers court’s decision and on 23 May 1993, the verdict of the Court of the Administrative Justice was cancelled.

The Supreme Constitutional Court proceeded to adopt a broad definition of the number of crimes that could be referred to military jurisdiction. In response, in 1993, the United Nations High Commission for Human Rights expressed its concern at the breach of separation of powers, which was occurring in relation to the President’s role in the executive and judicial authorities.  Egypt’s response to the UN concern was that such cases were in limited circumstances and occurred only when “necessary”. 

According to the information documented by the EOHR Field Work Unit, during the period 1992-2002 the authorities transferred 33 cases to the Military Court.  The total number of accused people in these cases was 1,113, resulting in the following verdicts: 94 death sentences, 673 sentences of imprisonment, and 346 acquittals. [2]
 

The Emergency Law and its Impact on Freedoms of Opinion, Expression and Belief 

Freedom of expression is expressly guaranteed in the Egyptian Constitution. Pursuant to Article 47, every person is entitled to express his/her opinion by publishing it, writing it or demonstrating it through other means of expression within the limits of the law.  Further, freedom of the press, printing, publication and mass media is guaranteed, and censorship on newspapers in what are normal circumstances is prohibited. The Constitution provides for “limited” censorship during a state of emergency or war in matters related to public safety or national security in accordance with law (Article 48).

The Constitution also guarantees the freedoms of scientific research, and literary, artistic and cultural invention provide the necessary means to encourage such talents (Article 49).  The Constitution also contains a vision of the role of press.  It says in relevant part: 

“The press shall exercise its true vocation freely and independently in the service of society through the different means of expression. It shall interpret the trend of public opinion … the safeguard of the liberties, rights and public duties and respect the sanctity of the private lives of citizens, as stipulated in the Constitution and defined by law.”  (Article 207) 

The freedom of the press is guaranteed and censorship on newspapers is prohibited.  In addition, threatening, stopping, or abolishing a newspaper through administrative means is prohibited according to the law and the Constitution (Article 208).

According to the Military Decree No 1 of 1981, certain crimes are capable of being transferred to the state security emergency courts.  Among this list of crimes are a number which concern publication and the press.  Following the introduction of these laws, approximately 40 journalists were called before a State Security Prosecutor. [3]  After the conclusion of investigations, a number were required to pay bail, contrary to the Press Law, which prohibits provisional detention of journalists for publishing crimes.

Military Law No 1 of 1981 also empowers the general prosecutor with similar powers to that of a judge, during investigations of alleged crimes against the emergency authorities.  No judicial supervision takes place in relation to such investigations. Additionally, the Military Law also places restrictions on the right to obtain information, particularly for journalists. The ability to access different types of information is essential for both the press and the public if they are to understand events, make informed choices and participate in the decision-making.[4]

The right to freedom of expression is contained in Article 19 of the ICCPR and other international conventions.[5] Article 19 of the Universal Declaration of Human Rights guarantees that “Everyone has the right to freedom of opinion and statement; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media”.

The Emergency Law gives the state authority broad powers of censorship under the pretext of protecting so-called “public order”.  For example, it can censor newspapers, newsletters, and confiscate publications or shut down publishing houses.  The state can also impose restrictions on freedom of assembly, movement and residence, and is permitted to arrest suspects and search property.  The Emergency Law contravenes the separation of powers, a doctrine designed to protect the independence of the judiciary. The President (the executive arm of government) is permitted to intervene in the ordinary court system through the creation of exceptional security and military courts to which civilian cases can be transferred.  Civilians tried before exceptional courts have no recourse to appeal apart from the intervention of the President.  Clearly, the effects of this law reach journalists and writers, and violate the law of journalists' syndicate and the law of press.  An example of such violations is the case of writer Salah Abdel Mohsen, who was imprisoned by the State Security Court in Giza because of his publication describing alternative methods of Koranic interpretation.   

The Case of the Matareyya Organization 

On 5 March 2002, the State Security Court of Matareyya delivered its decision in the case known as the “Koranic Case” or the “Movement of Matareyya” (Case No 6050 of 2001).  The eight accused (seven men and one woman) were presented before State Security Prosecution and were all convicted of misusing Islam for fanatical ideas, according to Article 98 of the Penal Code.  The court sentenced two of the accused to three years imprisonment and the rest have been transferred for retrial before another court. 

In another case monitored by EOHR known as the “Prophecy Claimant”, the State Security Prosecution presented 21 people to the State Security Emergency Court in Nasr City for misusing Islam.  The accused were all Sufis and their lawyer presented an explanation of Sufism to the court. The court imprisoned the first and the sixth accused for three years and the rest were given one-year stays of execution  in December, 2001. 

EOHR monitored this case and advocated for the freedom of thought and belief contained in the Constitution and International agreements to which Egypt is a party.

 The Emergency Law and its Impact on the Rights to Assembly and Peaceful Demonstration 

Article 47 of the Egyptian Constitution guarantees the freedoms of opinion and expression. The Constitution also protects the right to peaceful “private” assembly without police attendance, and public meetings “within the limits of the law” (Article 54).  The right to assembly is therefore constitutionally protected and should not be eroded except by laws limited by both necessity and proportionality.

Exceptional Law No 10 of 1914 was originally introduced to curb public demonstrations against the British occupation in Egypt. The Gathering Law gave the executive arm of government authority to place restrictions on freedom of movement, assembly and expression. Subsequent laws, which were introduced in the absence of the Legislative Council’s approval (such as Law 14 of 1923, known as the “Gathering Law”, appropriated the restrictions contained in the 1914 law so that they remain currently in force, despite their anachronistic nature. 

A- The importance of providing notice to police before a gathering:

Article 2 of the Gathering Law requires notice to be given to security forces

three days prior to any meeting and to provide 24 hours notice if the meeting is in relation to elections. Such provisions contravene Article 54 of the Constitution described above.  

B- The right of the police to prevent a meeting from taking place:

Article 4 of the Gathering Law gives the police and the governor the right to prevent any kind of meetings from taking place, including processions, either public or political. 

C- The right of the police to attend a meeting and to dissolve it:

Similarly, the Police Law states in Article 3 that: “the police agency is responsible for maintaining order, public security, protecting the lives of citizens and property, and specifically to prevent crimes from occurring.  Furthermore, it is responsible for guaranteeing peace and security for the citizens in the different fields, and also of executing all their duties according to the law”.  

In order to fulfil these duties, police have been assigned certain powers, including the right to use physical force to make people comply with the law. 

Article 102 of the Police Law gives policemen the right “to use force only if necessary in order to do his duty”.  However, this article fails to place appropriate limits on police use of force, by allowing the subjective test of “if necessary”. In other words, it is for the policeman himself to decide whether it is necessary to use force or not.  In addition, the article does not specify certain means of using force nor does not prohibit the usage of certain kinds of force.  (Police laws in other countries for example prohibit the use of guns unless in certain clear conditions, and in the case of self-defense). 

Restrictions on Managing Public Affairs 

The Emergency law places heavy restrictions civil and political participation, for example in relation to elections and candidacy for elections.  The Emergency Law limits the right of the citizen to move and to meet. [6]   It also gives the administrative bodies broader powers to detain administratively citizens during elections.  During elections, the police systematically arrest candidates competing against the major political party (the NDP).  For example during the legislative elections that began in September 2000, the police arrested 500 supporters of the independent and opposition candidates[7]. 

Another limitation relates to the decision of the executive to not permit independent judicial supervision of elections. The dominance of the executive over the electoral process is demonstrated by its power over the candidacy applications, the lists of the voters, and its geographical control over the Elections Committees who oversee the voting process. Accordingly, the police are able to determine which voters are permitted to reach the ballot box and which are not. 

There is no doubt that democratizing the political and social climate will assist in establishing independent elections.  The holding of free and fair elections will lead to the abolition of the state of emergency, which is an important step to achieving wide political participation for peaceful rotation of political power. 

On the 27 June 2002, 230 supporters of the Islamic Movement’s candidate (Jehan El Halafawy) were arrested during the El Raml elections in Alexandria.  In all, 101 cases were transferred to the State Security Court with the charge of assembly, causing disorder, and possession of pamphlets detrimental to public safety.  On 22 October 2002, the court sentenced 66 people to prison for three months and 35 individuals were found to be innocent.

In the same context, during the local elections of 1997 and 2002 the security authorities also used the Emergency Law to pressure candidates within the opposition to not run in the elections.[8]