Peace and Justice Post

“President Mubarak has again breached his promise of five years ago to end emergency rule.The cosmetic changes announced this week don’t change the fact that the state of emergency perpetuates official lawlessness and contempt for basic civil and political rights.”

Joe Stork, deputy Middle East and North Africa director

(New York) – The Egyptian government’s announced modifications of the emergency law in place for almost three decades do not make renewal of the state of emergency any more acceptable, Human Rights Watch said today.

In an attempt to ward off criticism, the government repeated earlier claims that officials will restrict the application of the law to cases involving terrorism and drug-related crimes and said that it would no longer enforce certain measures, such as monitoring communications and confiscating property. The state of emergency was renewed on May 11, 2010, for two more years. The emergency law comes into force when a state of emergency is declared or extended.

“President Mubarak has again breached his promise of five years ago to end emergency rule,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “The cosmetic changes announced this week don’t change the fact that the state of emergency perpetuates official lawlessness and contempt for basic civil and political rights.”

President Hosni Mubarak, during his 2005 election campaign, promised to replace the emergency law with new counter-terrorism legislation, but since then his government has renewed the emergency law three times, in May 2006, May 2008, and again this week. Egypt has been governed under emergency law almost continuously since 1967 and without interruption since Mubarak became president in October 1981 after the assassination of Anwar Sadat.

The law gives the executive – in practice the Interior Ministry – extensive powers to suspend basic rights by prohibiting demonstrations, censoring newspapers, monitoring personal communications, and detaining people indefinitely without charge. Egyptian defense lawyers and human rights groups say at least 5,000 people currently remain in long-term detention without charge or trial under the emergency law. Some have been in jail for more than a decade.

In a session before the People’s Assembly on May 11, Prime Minister Ahmad Nazif said that the government “commits itself before the representatives of the nation to not utilize the extraordinary measures made available under the emergency law except to confront the threat of terrorism and narcotics, and only to the extent necessary to confront these dangers.” He stated that the government would ensure that constitutional and international safeguards are provided and that the use of the emergency law is subject to judicial supervision. Renewal of the law was passed in an evening session in the People’s Assembly with 308 members of parliament voting in favor and 101 against. More than two-thirds of the parliament belong to the ruling National Democratic Party and can be counted on to support virtually any government initiative.

This is not the first time officials have claimed to restrict use of the emergency law to counter-terrorism and drug-related crimes. In February, Mostafa Hanafy, vice president of the Egyptian Council of State, told the United Nations Human Rights Council that the government had “made a commitment before parliament to use the emergency law only for terrorism and drug-related crimes and it has only implemented the rules of the emergency law in these cases.” In August 2009, President Mubarak told the US television host Charlie Rose that Egypt “confines [its] recourse to the emergency law, to terrorist crimes. Otherwise it is the rule of law under the normal laws.”

Despite these repeated claims, authorities have continued to use the emergency law to detain dissidents such as the blogger Hany Nazeer, who linked to his blog a controversial book that some in his village considered insulting to Islam. The government told Human Rights Watch that it imprisoned Nazeer “to protect [his] life in light of the anger and the strong uprising of the Muslims in Abu Tesht in Qena caused by his blog.” State Security Investigations has detained Mus’ad Abul Fagr, a novelist and rights defender who had been outspokenly critical of the violation of the rights of Sinai Bedouin, under successive emergency law orders since February 15, 2008. Other political prisoners include the student activist Tarek Khedr and several persons detained solely on the grounds that they are members of the banned opposition Muslim Brotherhood.

The restriction to counter-terrorism and drug-related crimes was this time included in the text of the law renewing the state of emergency. The state newspaper Al Ahram announced in the top story on its front page on May 11 that “for the first time a clear legal guarantee will be attached to the extension of the state of emergency, since in previous years there was only a political commitment from the prime minister to the People’s Assembly.” Human Rights Watch said if a verbal commitment from the government to the legislature was not enough to ensure compliance by state security, putting it in writing was unlikely to change things.

“If the Egyptian government is serious about sharply limiting its use of the emergency law it should immediately free people like Hani Nazeer and Mus’ad Abul Fagr,” Stork said.

The government also announced that there would be full judicial review of detention orders under the emergency law, but security forces have routinely disregarded court orders for the release of such detainees. The Interior Ministry has detained Nazeer under six successive emergency law orders for the past 19 months despite five court orders for his release, most recently on April 3. Abul Fagr remains in prison under a 13th emergency law order despite several court orders for his release.

“The cases of Nazeer and Abul Farag show how worthless government statements about judicial review really are,” Stork said. “Security officials don’t care about the law and have repeatedly ignored court orders for their release.”

A May 11 government news release also stated that the government would no longer “exercise the following extraordinary powers previously available under Paragraphs 2,3,4 & 6 of Article 3 of the Emergency Law, among them: The monitoring of all forms of communication; the monitoring, censoring, and confiscation of media and publications, and the ordering the closure of publishing houses & broadcasters; the confiscation of property; the regulation of the hours of operation of commercial activities and the evacuation and isolation of certain areas.”

But lawyers from the Hisham Mubarak Law Center and the Egyptian Initiative for Personal Rights told Human Rights Watch that the authorities do not use these provisions of the emergency law so that this is a meaningless concession. The government instead uses other laws for these purposes, such as provisions under the Press Law and Penal code to censor publications.

Emergency law provisions that remain in place include Paragraph 1 of Article 3, which empowers the Interior Ministry to “arrest and detain suspected persons or those who endanger public order or security.” Provisions for arrest without warrant, detention without charge or trial, searching private homes without warrant, and banning demonstrations at will all remain in force. Human Rights Watch has repeatedly called for the government either to release or to charge with a criminal offense all of the estimated at least 5,000 people being detained without charge.

The official news release fails to note that amendments to Article 179 of the constitution in 2007 effectively waive constitutional guarantees of the rights to privacy and to due process in cases the government designates as terrorism-related, and grant security forces unfettered authority to detain persons, search homes and monitor communications without a judicial warrant.

“Actually ending Interior Ministry monitoring of communications without judicial warrant would be an important step,” Stork said. “The government should repeal the amendments to Article 179 of the constitution so that the same thing doesn’t happen if the government does pass a counter-terrorism law.”

Security officials frequently use the emergency law to justify crackdowns on demonstrations. On April 6, a group of young activists organized a demonstration to demand an end to 29 years of the state of emergency and constitutional changes to allow for open and inclusive presidential elections. The Interior Ministry refused permission for the demonstration. A group of around 70 demonstrators nevertheless managed to congregate briefly and peacefully chant slogans. Security officials arrested more than 100 demonstrators and persons they suspected of intending to join
the demonstration that day, detained them for at least 10 hours, and then brought 33 before the public prosecutor. The prosecutor charged them with “participating in a demonstration to overthrow the regime” and “participating in a group whose goal is to resist the basic principles upon which the regime is based, incite hatred against it, and show contempt for it.” The prosecutor then ordered their release. Security forces released all the protestors remaining in detention over the following days.

“Egyptians who wish to demonstrate peacefully know they will probably be arrested for a few hours or days, beaten up, and eventually released,” Stork said. “These incidents are never properly investigated, and security officers continue their violent repressions of demonstrations with impunity.”

The emergency law also allows for trials of civilians before military tribunals and special state security courts, which lack basic due process protections. Human Rights Watch has monitored a number of trials before state security courts. Judges in these courts routinely fail to investigate allegations of torture properly, dismiss confessions obtained under torture, and do not allow defendants adequate access to lawyers outside the courtroom. For instance, the ongoing trial of 25 defendants accused of membership in a terrorist organization in the so-called “Zeitoun Trial” has been marred by the incommunicado detention of the defendants, lack of access to counsel until the second session of the trial, and confessions allegedly obtained under torture.

The Human Rights Committee, the expert body that monitors state compliance with the International Covenant on Civil and Political Rights (ICCPR) in 2002 expressed concern that Egypt’s “military courts and State security courts have jurisdiction to try civilians accused of terrorism although there are no guarantees of those courts’ independence and their decisions are not subject to appeal before a higher court,” as required by the ICCPR.

“The government has come to rely on state security courts to ensure a decision in line with security agencies’ needs,” Stork said. “All ongoing trials before state security courts should immediately be transferred to regular criminal courts.”

In his speech before parliament on May 11, Prime Minister Nazif was clearly aware of Egypt’s international obligations. He said that “today the government restates [its] commitment to the representatives of the nation to lift the state of emergency as soon as a balanced law is adopted that does not permit the use of extraordinary investigation measures unless necessary to counter terrorism, and then only under complete supervision by the judiciary.”

During the Human Rights Council’s review of Egypt’s human rights record, the government repeatedly stated that it would end the state of emergency as soon as drafting of the counterterrorism law was completed. When Human Rights Watch met with Mufid Shehab, the
Minister of Legal Affairs and Parliamentary Councils, in December 2007, he said that the draft of the counterterrorism law was nearly complete. To date the government has not made public any draft of the counter-terrorism law.

“No law takes four years to draft,” Stork said, “There is clearly a lack of political will to end the state of emergency, which seems to suit those in charge of Egypt’s security services.”

As a party to the ICCPR, Egypt is obliged under article 9 to ensure that there is no arbitrary deprivation of liberty and to provide an effective remedy for violations. Under article 19, it is bound to protect freedom of expression. Limited derogations from these articles are allowed in a state of emergency, but the state of emergency in Egypt does not meet the applicable criteria under international law. In a report on his 2009 visit to Egypt, Martin Scheinin, UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, said that the emergency law that has been “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.”

In its interpretation of Article 4 of the ICCPR, which sets out permissible derogations in times of emergency, the UN Human Rights Committee stated that“[m]easures derogating from the provisions of the Covenant must be of an exceptional and temporary nature” and be “limited to the extent strictly required by the exigencies of the situation.” Egypt’s official National Council for Human Rights said in May 2008 that “nothing any longer justifies the extension of the state of emergency, all the more so as Egypt is experiencing a period of stability.”