Egypt's new parliament has an opportunity to close an abusive chapter in Egypt's history by ending all measures related to the Emergency Law when the current extension of the law expires on May 31, 2012.
The People's Assembly should not just let the law lapse, but should also pass legislation ending all exceptional measures that would not automatically expire with the law, Human Rights Watch and Alkarama said. It should require the interior minister to release all Emergency Law detainees or refer them to prosecutors to be charged, and ask the public prosecutor to transfer all Emergency State Security Court (ESSC) trials to regular civilian courts.
"The Egyptian parliament should make sure that this state of emergency, a hallmark of Hosni Mubarak's abusive police state, has no future," said Joe Stork, deputy Middle East director at Human Rights Watch. "Parliament should also initiate a comprehensive investigation into human rights violations that flourished under the Emergency Law, and the public prosecutor should make sure that the key people responsible for systematic torture and enforced disappearance are prosecuted."
Egypt has been under a continuous state of emergency since 1981. An end to the state of emergency was a longstanding demand of the Egyptian opposition and a primary demand of protesters during Egypt's January 2011 uprising. International human rights mechanisms have also repeatedly condemned the Emergency Law.
On May 17 the human rights committee of the People's Assembly called for ending the state of emergency by May 31, not allowing any further extension, and ending the administrative detention and security court trials authorized under the law. In a news conference on May 29, the presidential candidate and Freedom and Justice party member Mohamed Morsy said: "There is no going back to the state of emergency, we do not need the state of emergency... the existing laws are sufficient."
Egypt's state of emergency was last renewed by Mubarak, for two years, in May 2010, nine months before he was ousted from the presidency. On January 24, 2012, Egypt's military ruler, Field Marshall Hussein Tantawy, issued a decree limiting the application of the Emergency Law to cases of "thuggery," mirroring Mubarak's meaningless claim in May 2010 to limit application of the Emergency Law to terrorism and drug-related crimes. Because the authorities are not required to present evidence to a judicial authority, it is meaningless to say they will use it only for a particular category of detainees or in relation to a particular crime, Human Rights Watch and Alkarama said.
"Lifting the State of Emergency has been one of the major recommendations of the United Nations human rights protection entities for the past 20 years," said Rachid Mesli, director of Alkarama's legal department. "It is high time for the Egyptian people to live protected by the rule of law, without any exceptions."
Despite promises since early 2011 to end the state of emergency and release Emergency Law detainees, the Supreme Council of the Armed Forces (SCAF) reverted to using Emergency Law powers. The Interior Ministry is currently detaining at least 188 people under the Emergency Law.
Trials before the ESSC, created by articles 7 through 12 of the Emergency Law (Law No. 162 of 1958), also continued, and the public prosecutor referred at least six new cases throughout 2011 and 2012 to these courts, Alkarama and Human Rights Watch said. At least eight cases are still in the state security courts. Human Rights Watch found in monitoring trials before state security courts that the judges routinely fail to investigate allegations of torture properly and to dismiss confessions obtained under torture, and that they do not allow defendants adequate access to lawyers outside the courtroom.
Two of the cases involve incidents of sectarian violence, two of alleged spying, and one of violence at a demonstration. In the most recent conviction, on May 21, a state security court sentenced 12 defendants to life in prison, acquitting eight others, in connection with an incident of sectarian violence in April 2011 in Minya province that led to two deaths.
"The public prosecutor should order the transfer of all Emergency State Security Court cases to regular criminal courts for retrial," Stork said. "It is unacceptable that there are still courts in Egypt that offer no right to an appeal, a basic fair trial guarantee."
On June 4, 2011, the public prosecutor referred 48 people arrested after violence at a church in Imbaba, Cairo, in which 12 people died, to trial before the Emergency State Security Court. The next session of their trial is scheduled for June 2. In October 2011, state security prosecutors did the same for 76 people arrested in connection with the September 9 attack on the Israeli embassy in Cairo. The "Zeitoun" trial of 25 defendants accused of membership in a terrorist organization, which opened on February 14, 2010, is still before an Emergency State Security Court.
In at least three of these cases, defense lawyers contended that article 19 of the Emergency Law, which allows for the trials to continue after the end of the state of emergency, is unconstitutional. Judges have referred article 19 to the Constitutional Court for review.
On March 29, the SCAF issued decree number 1 of 2012, in which it appointed judges to the State Security office for one year, until March 2013, citing the Emergency Law in the preamble. The fact that this decree will remain in force suggests the SCAF has no intention of ending the state of emergency, or at least closing the emergency courts, at the end of May and that there is a need for legislative intervention by parliament, Human Rights Watch and Alkarama said.
The Emergency Law allows Interior Ministry officials to detain people without charge or trial for indefinite periods. The judicial review by State Security Courts provided for in the law has proved ineffective in practice, since the Interior Ministry has routinely disregarded court orders to release detainees. Alkarama and Human Rights Watch are aware of 188 cases of people currently detained under the Emergency Law (a list of 91 of the names of detainees obtained appears below).
In a typical case, in the southern city of Assiut, a police report dated October 24, 2011, requested the detention of Abd al-Rahim Abd al-Rahman under the Emergency Law "as a deterrent and for the good of public security." The Interior Ministry issued Emergency Law detention order number 1803/6 of 2011 on October 24, ordering al-Rahman's detention.
Alkarama has documented two cases in which police arrested men for drinking beer and subsequently detained them under the Emergency Law. The son of 55-year-old Gamal Amin, arrested on December 12, 2011, said police accused his father of "possession of beer," though that is not a crime under Egyptian law. The local prosecutor ordered his release on the same day. But Interior Ministry officials issued an Emergency Law detention order on December 18, and Amin remains in Wadi Gedid prison. In the second case, Mallawi police arrested Zakariya Ghali Rizkallah, 64, on December 15 and accused him of "drinking beer." The prosecutor ordered his release on December 18, but Interior Ministry officials issued a detention order on December 19 and removed him to Wadi Gedid prison.
The SCAF has also used the state of emergency to justify further restrictions on freedom of assembly and the right to strike. On April 12, 2011, the SCAF approved Law No. 34 of 2011, "On Criminalizing Attacks on the Right to Work and Public Facilities," which criminalizes calls for and participation in strikes and demonstrations that "impede public works" if they take place "during the state of emergency." Once the state of emergency expires, this law will no longer be in force, Human Rights Watch and Alkarama said.
Among international human rights entities that have called for repeal of Egypt's Emergency Law, the United Nations Committee against Torture stated in its 2002 concluding observations regarding Egypt that "[a] state of emergency has been in force since 1981, hindering the full consolidation of the rule of law in Egypt." The UN Special Rapporteur on Counter Terrorism, following a visit to Egypt in 2009, also reminded the Egyptian authorities that, "A state of emergency does not justify action that is in contravention of peremptory norms of international law, such as the prohibition against arbitrary deprivation of liberty."
In a report calling on the new People's Assembly to make a number of legal reforms top priorities, Human Rights Watch recommended that any new declaration of a state of emergency should take place only "if an emergency arose threatening the life of the nation" and that it should be strictly limited in time and geographical scope to the extent strictly required by the exigencies of the situation. Human Rights Watch also said that limits on human rights protections should be clearly and narrowly identified, strictly necessary, and proportionate. A state of emergency, and any measures adopted under it, should be subject to judicial review, with judges able to strike down measures that are disproportionate or no longer necessary to meet an emergency.
"The emergency law was used as a shortcut by Mubarak's police and enabled them to 'disappear' and torture thousands of Egyptians over the past decades," Mesli said. "Egypt's parliament should fully end all such exceptional measures and recognize that real security will only come through better policing and an end to abuses by law enforcement officers."
List of people currently detained under the Emergency Law:
Ahmed Hussein Attiya Hamed Ahmed
Islam Hassan Mostafa Abdelrahim
Abdel Aty Mahmoud Abdel Atry
Saber Ali Mahmoud Hassan
Al Nokrashi Altaqi Al Sayed
Adel Ibrahim Aboul Magd Mahmoud
Hegazy Abdelhady Mohamed Abdel Samad
Essam Farghaly Mohamed Taha
Abdel Rahman Ahmed Hesham
Khaled Ahmed Hesham
Moahemd Asran Barbari
Abdallah Ali Abdallah Hussein
Abdel Rahim Abdel Rahman Abdel Rahim
Ayman Nasser Khalaf Abdel Rahim
Arafa Abdel rahim Hassan
Mohamed Nasr Shams
Ezz Saad Mostafa Ali
Mohamed Mohamed El Fateh Mahmoud
El Sayed Mohamed Ali Mohamed
Ahmed mohamed Ahmed Mohareb
Montasir Galal Rashed
Shaaban Fathi Dahi Gabr
Tarek Ali Abdelnaby Younis
Sayed Salah Zaki
Gehad Farag Abdel Salam Mabrook
Farag Mohamed Mostafa al Baghdadi
Mohamed Ali Selim
Essam Agab Ali Khalaf
Amr Fawqy Abdu Hassanein
Bassem Mohamed Abdel rahim Mohamed
Abdel Nasser Mohamed Ibrahim
Farrag Mohamed Mostafa al Baghdadi
Fathi Khalaf Mohamed Marzaban
Sayed Fathi Abdel Ghaffar Said
Emad Thabet Salem Ali
Emad Morsi Mahmoud Morsi
Hamada Mahmoud El Sayed
Mohamed El Sayed Mabrook Hassan
Abdel Salam Mabrook Huseein
Ahmed Ali Abdel Halim Ibrahim
Mohamed Fahmy Ali Attiya
Hassan Aboul Nagd Hassan
Mohamed khater Youssef Mohamed
Karim Metwally Karim Mohamed
Mohamed Mohsin Anwar Hussein
Montasir Fawzy Zaki Ali
Hassan Marzouk Hussein Mohamed
Hamada Ahmed Mohamed Abdel Monim
Dhahi Abdallah Khalil El SAYed
Mostafa Ali Shaaban Mohamed
Sahri Noubi Amin Mohamed
Mumtaz Abdel Nasser Mahmoud Hassan
Ashraf Fathi Mohamed Abdel Gawad
Safwat Mahmoud Mohamed al Bahgi
Abou Zeid Jassem Ali Mohamed
Salome Mahmoud Ahmed
Ahmed Kotb Gaadan
Amin Fathy Mohamed Ahmed
Ahmed Atef Ahmed Omar
Mahmoud Mohamed Khalaf
Ahmed Sharkawy Jibril
Kilani Mohammed Ahmed
Ashraf Badr Khalil Mohammed
Gomaa Hamdy Jibril
Ahmed Sharqaw iJibril
Adel Muharram Mohamed Hassan
Hisham Mahmoud Ahmed Mahmoud
Rabiaa Ezzat Mohamed Bayoumi
Abdul Hadi Ramadan Mahmoud Hamid
Mahmoud Jaber Abdel-Hamid Abu Zayd
Abdel-Wahab Gad Ahmed
Amin Ahmed Mohamed Abdul Majeed
Emad Qyrany Ali Morsy
Romany Boqtor Abo yameen
Rifaat Fawzy Abdo
Zakaria Ghali Rizkallah
Mahmoud Rubyqurany Alsayed
Ahmed Mohammed Ahmed Mosaed
Alaa Alsayed Salem
Farhat Alsayed Salem
Reda Ismail Ibrahim Murad
Mohamed Yahya Fouad Abdel-Azim
Nageh Sayed Mansour Salem
Jamal Amin Dardir
Ashour Ali Hussein
Abdullah Ibrahim Mohammed Ali
Mohammed Ahmed Saber Mahmud
Gomaa Fathy Abdel Samie
Osama Thabet Salem
Emad Thabet Salem