Emergency Law

Section I: The emergency law

Introduction

The Emergency Law was promulgated by the legislature as the Emergency Law No. 162 of 1958. Some regard it as a regular law enforced in emergency circumstances. This opinion is based on an obvious prevarication. Internationally agreed rules and regulations, found in both the Egyptian Constitution and the Code of Criminal Procedures, guarantee personal freedom related to grounds for arrest, detention, search and seizure of objects, etc. Any law restricting such guarantees is undoubtedly an emergency law. Thus, any person's freedom may not be restricted without the person having been charged with an offense. The Emergency Law contravenes this rule. Moreover, under the Emergency Law, a defendant does not enjoy the guaranteed right to trial before his natural judge.

The Emergency Law, like other emergency laws found in Arab States, is a remnant of the colonial era, when the British and French attempted to break the national liberation movements through enforcing laws and regulations unknown in their native lands. Following independence, most Arab states were ruled by undemocratic rulers who kept such laws and regulations as an effective means to deter so-called 'enemies of the system'.

Egypt is at the forefront of Arab States with regard to the vast number of emergency laws dating back to the British occupation. The Vagrancy and Suspicion Law No. 98 of 1945 (amended by Law No. 110 of 1980 and Law No. 195 of 1983) originated from laws passed by the British Occupation Authority under No. 15 of 1909, and No. 17 of 1909.

Article 47 bis of the Egyptian Penal Code incriminates an agreement between two or more persons in the case where it is observed that a felony or misdemeanor is the means to achieve this agreement. 'Observed' is in the passive voice, without stating who 'observed' and without the parties to the agreement having explicitly included any crime in their agreement, and without the agreement actually leading to the perpetration of any crime.

This article was added to the Penal Code by Law No. 28 of 1910 following the assassination of Prime Minister Boutros Ghali, by a young National Party member. The Prosecution referred 9 defendants to trial accused of being involved in the assassination. The first for murder and the rest as accessories, on the grounds of being members of a secret organization which considers violence a principal means to achieve its objectives, and therefore which had agreed to use violence to achieve such objectives. The crime committed by the first defendant was probably a result of this agreement. The court sentenced the first defendant to death, but the others were not considered accessories to the assassination. Article 40 of the Penal Code requires that the agreement is to commit a certain crime. This was not proved in the case. There is no provision in the law incriminating a criminal agreement in itself and no penalty for forming a political group, even if the use of violence is among its principals.[footnote 1]
The roots of the Emergency Law date back to 1914, the time when Egypt was first exposed to a State of Emergency. On 2 November, 1914, soon after Turkey (the Caliphate) joined 

Germany in the war against Britain and the allies, the British government imposed martial law on Egypt. The British Military Authority posted the following announcement in streets and squares:

'Let it be known that I have been made responsible by the Government of the King of Great Britain for the military control and defense of Egypt. Consequently, as of this date Egypt is under military rule'. [footnote 2]

On 18 December, 1914, the British military authorities used martial law to announce, its protection of Egypt. According to this law, the British implemented a mass detention campaign and exiled many Egyptians. In enforcement of provision 3 of the Martial Law, the occupation authorities forcibly recruited thousands of Egyptian laborers, and confiscated crops, livestock and livelihoods by force or in return for the payment of little money. [footnote 3]

Following the Declaration of the Independence of Egypt, 28 February, 1922, the Egyptian Constitution was issued on 19 April, 1923. It included a provision for a State of Emergency - Article 59, which stipulated that 'the King may declare martial law, which should immediately be brought before the Parliament for review. In the case where a declaration does not coincide with a parliamentary session, Parliament shall immediately be convened'.

Article 155 stated that 'under no circumstances may a provision of the Constitution be suspended, except temporarily during war or martial law, and provided that such is in accordance with the law'.

Pursuant to these two articles, the Military Rule Law No. 15 of 1923 was promulgated on 26 June, 1923. Martial law could be declared in accordance with this law whenever security and public order were endangered, whether due to an armed attack from outside or the occurrence of national unrest (Article 1). Martial law should be declared and enforced by a royal decree defining the declaring body, the date of enforcement and the name of the person authorized to implement emergency measures (Article 2). Article 3 stated the most important emergency powers granted to the military governor in the case of enforcing the law:

1-Withdrawal of licenses and confiscation of arms.

2-Searching houses and persons and censoring newspapers.

3-Imposing curfews.

4-Control of any means of transportation.

5-Taking measures to safeguard public security.

6-Ordering the arrest of vagrants and suspects and keeping them in custody in a safe place.

7- The prevention and dispersion of any assembly, club or meeting, by force if necessary.