The Arabist

The Arabist

By Issandr El Amrani and friends.

Posts tagged emergency
In Translation: Wael Kandil on the Emergency Law

I’m happy to announce a new regular feature on this site. Every week, we will select an article from the Arabic press, translate it and bring it to you with a short analytical introduction. The idea is to give readers an idea of the debate in the Arabic papers over issues of the day, and provide some wider context. We’ve done some of this in the past, but generally do the translation of more than a few lines ourselves — we’re simply too busy. What we’ll be doing here is bringing you full-length, unabridged articles — so we needed outside help.

Translation for this feature will be provided courtesy of Industry Arabic, a  full-service translation company founded by two longtime Arabist readers, which specializes in English-Arabic-French technical, legal, and engineering translation management services.

For the first item in the series, we’re looking at the debate over the Emergency Law in Egypt. Since the Supreme Council of the Armed Forces (SCAF) began to make increased use of the Emergency Law after September 9 protests (at the Israeli embassy and several ministry of interior facilities). This was controversial in itself, but a legal debate soon emerged: it was generally understood that the Emergency Law would lapse at the end of September, according to the Constitutional Declaration approved in March that states it will last six months. Several scholars have confirmed this interpretation, but the SCAF now counters that since Mubarak and the previous parliament had extended the Emergency Law till May 2012, it would be effective until then.

What this debate illustrates is that, as a result of the poor planning and slap-dash legal structure set up since the March referendum, the very constitutional legitimacy of the current setup is starting to be under attack. And with it, the transition — and the SCAF’s legitimacy. I selected the piece below, by prominent left-leaning commentator Wael Kandil (who is also the managing editor of al-Shorouk, a private broadsheet daily newspaper), because it illustrates the situation with sarcasm and looks at the broader implications.

Constitutional Declaration… Rest In Peace!

By Wael Qandil, al-Shorouk, 22 September 2011

A couple of days ago, I wrote here an article entitled “The Military Violates the Constitutional Declaration” by extending the state of emergency without first seeking the approval of the Egyptian people through a referendum. Article 59 of the Constitutional Declaration stresses that, in all cases, the state of emergency may not be extended for more than six months unless if approved by a referendum.

On the evening of that same day, Tariq Al-Bishri, the constitutional scholar and advisor, confirmed such a fact during an interview, live on al-Jazeera TV. Newspapers and editorials took up the opinion of Mr al-Bishri, who was the chairman of the Committee on Constitutional Amendments, assigned by the Military Council to amend some articles of the 1971 Constitution, and which ultimately produced a new Constitutional Declaration comprising more than 60 articles.

So… the Military Council violated the Constitutional Declaration, something confirmed by the chairman of the committee in charge of drafting it. Since this was not the first case of infringement and violation, one should understand that this Declaration no longer enjoys the status of holiness which they publicly promote in order to counter whoever comes forward to present an opinion or a point of view on the state of disorientation and confusion through which Egypt is passing since the announcement of that frequently violated and abused referendum.

After such uneasy months, which saw the Constitutional Declaration turn into an old rotten piece of cloth, it is no crime or shame to stand up and hold the government accountable for its actions during this period, on the basis of the articles and applications of the Declaration. This will reveal with clarity how insolently it was treated by the very persons tasked with its protection and application.

Once this is done, there would be no qualms at all in trying to remedy what went wrong, and address the existing gaps and flaws as these were proven by time and successive events. On this occasion, I recall having recently read a certain number of statements and assurances confirming the drafting of general governmental principles, which would acquire public consensus and become the basis for the country’s new permanent constitution, seen as providing a guarantee of the civil status and democratic nature of the State, as well as ensuring the conservation and respect for the principle of citizenship.

A raucous societal debate followed on this issue and concluded that the government, represented by its Deputy Prime Minister, Dr. Ali al-Selmi, and the Supreme Council of the Armed Forces, represented by a number of its members, have confirmed that these principles or regulations will be drafted and adopted, either in the form of a new Constitutional Declaration, or by way of an agreement among political parties and powers. Let us not forget that the majority of the parties have declared their support for these principles, although they differed over the meaning of terms such as “civil society” or “democracy”.

How remarkable that, after long days of intense debate on this subject, it seems that no one is any longer referring to or talking about such principles. I wonder what had happened to them and why were they at the center of such a heated discussion. More importantly, why are they now silenced and discarded?

The truth is that we are practically living in an era of “pasteurized politics”. Issues and debates are brought to the surface and heated up to boiling point before they are suddenly sunk down and buried in a thick layer of cold silence. Other issues are then raised and made the point of furious discord between various groups before they are surprisingly withdrawn and hushed. A vicious, never-ending circle of fictitious battles!

All of this is going on while they insist that the Constitutional Declaration is the ultimate path and road map to pursue, while reality says that the Declaration is now confined to history, leaving us the only choice of praying for it and wishing it would… rest in peace.

Surely we belong to Allah and to Him shall we return.1

Translation provided by IndustryArabic

Quran, Sura Al-Baqara, Verse 156. A traditional saying when hearing of someone’s death. ↩

The Emergency Law needs to go

"No To Emergency"

Tomorrow is is set to be the "Friday of Deafening Silence," the latest in "million-man" protests to take place since Hosni Mubarak was deposed on February 11. Yes, it's a silly name. But this could be one of the more important protests that has taken place in a while.

Unfortunately, the picture has been muddied by last week's break-in at the Israeli embassy and the raids on interior ministry facilities, which are in part reported to have been attempts at destroying criminal records, etc. Considering the rather surprising reaction to the embassy incident — almost unanimous condemnation by political parties, activist groups, media figures, etc. including many Islamists of the embassy break-in and the other events of the day —  the current atmosphere is somewhat confused. On the one hand, last week's incidents have really driven home the need (and perhaps even more importantly, the public's desire) for greater order, and the difficult task of simultaneously empowering the ministry of interior to do its job and reforming it. 

The ruling SCAF's reaction to the events, though, are a turn more dramatic and dangerous than the embassy break-in itself. The SCAF has decided not only to reinstate the full force of the Emergency Law Mubarak and his police used to rule for 30 years, but also Mubarak-like restrictions on media and other sundry measures, such as criminalizing (again, under the Emergency Law) "attacks on freedom of work". At a time when workers' movements are gathering in a steadily growing number of strikes (teachers, postal workers, etc.) to insure that the social part of the revolution makes gains, it is plain that SCAF is using the embassy incident to advance a draconian security agenda. Combined with the lingering debate over the electoral law, the lack of clarity on the transition process (notably suggestions that SCAF may handpick the members of a constituent assembly and the lack of a date for the presidential elections) and the unresolved question of the use of military tribunals (which may be replaced under the emergency law by "Emergency Courts" which are equally problematic), one gets the sense of "Mubarakism without Mubarak." 

Tomorrow's protest may suffer from the "protest fatigue" the Egyptian public is starting to feel, but it's important to keep the pressure on SCAF and attempt to reverse the re-legitimization of the Emergency Law, which perhaps after the Mubaraks were the key target of the opposition movement in recent years.

The statement below, released by the Arab Center for the Independence of the Judiciary and the Legal Profession, and echoed by many NGOs, shows the extent of the SCAF's restrictions on freedoms of association, speech and more. It makes the excellent point that some of the points addressed that have the public's support — such as carjacking or drug-dealing — are already criminalized under the normal penal code. So the SCAF appears to be using these to give themselves legal cover to attack work stoppages, strikes, and media freedom.  

Amendments to the emergency law is a threat to public rights and freedoms in Egypt

The Arab Center for the Independence of the Judiciary and the Legal Profession (ACIJLP) expresses its deep concern over the activation of the emergency law and the amendments issued by the Military Council under resolution No. (139) of the year 2011 to amend certain provisions of 2010’s presidential decree No. 126, which concerns the emergency law in Egypt. Such decree includes the application of the provisions resulting from announcing the state of emergency on the following cases:

  • Facing internal tensions
  • participating in or funding terrorism, harming national security and public system of the country
  • possession of weapons and ammunition and trafficking on it
  • Importing and exporting drugs and the drug
  • criminalization of thuggish acts
  • attacks on freedom of work
  • sabotaging facilities
  • blocking traffic and road closures
  • publishing or broadcasting false news and rumors

ACIJLP points out that the former regime with all its tyrannical acts did not dare when modifying the emergency law to include all these criminal acts and reasons behind the application of the provisions of the Emergency Law. The former regime added to decree No. 126 of 2010 concerning the renewal of the State of emergency until 2012 only two criminals acts “facing the dangers of terrorism and funding it and Importing and exporting drugs and the drug trade”.

ACIJLP believes that this decision was contrary to the Constitutional Declaration promulgated on February 13 2011, the international Covenants and the Egyptian Government commitments and its national legislation, particularly the Egyptian Emergency Law No. 162 of 1958 which determined exclusively the reasons and justifications which enable the President of the Republic to impose and declare a State of emergency. Such reasons, including but not limited to, should not be expanded to respect law: A war or a threatening situation, internal tensions, public disaster and epidemics.

In addition to the foregoing regarding the violation of the decision to extend the State of emergency for constitutional and legal foundations, it has retained the most serious measures on rights and freedoms and calla for its activation and application particularly, the two measures (1) and (5) of article III of the emergency law which gives the Interior Minister extremely dangerous powers on the rights and freedoms, namely: putting restrictions on the freedom of persons on the meeting, movement and residence, putting restrictions on the freedom of persons to travel in certain places and times, arresting suspected persons or those who cause harm to public Security and system, allowing the inspection of persons and places without complying with the provisions of the code of criminal procedure and forcing any person to perform any action.

Such dangerous powers make the talk about ensuring any of the rights and fundamental freedoms is empty of content because the powers conferred by law No. 162 of 1958 to the President of the Republic in a State of emergency – and recently to the Military Council- stricken these guarantees and make it invalid as a good basis for the principle of legality and the rule of law. Moreover, the decision does not determine the punishable crimes in violation of the principle of legality of offences and penalties, which require the formulation of penal provisions in a clear specific way without ambiguity. Such provisions should not be obstacles by the legislator to punish any person.

One of the most astonishing matters is that crimes reported by the decision are law-governed crimes and do not require to be criminalized by an exceptional law such as the Egyptian Emergency law which played a major role in violating many rights and freedoms applied and widely recognized. Such rights should be protected by Egypt according to the international covenants and Conventions, particularly the International Covenant on Civil and political rights, ratified by Egypt on 14th January 1982 and entered into force on 15th April of the same year. The right to freedom of opinion and expression, the right to peaceful assembly and right to strike are also affected by such resolution. In addition to, violating the guarantees of fair trial and the independence of the judiciary.

The ACIJLP expresses its concern about the activation of the emergency law and the reasons for the expansion of its provisions. Therefore, the ACIJLP calls upon the Egyptian government and the military council to undo this decision, out of respect for the rights, public freedoms and to fulfill the Egyptian commitments and international obligations.

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