Detention and the emergency law

A study of the constitutional and legal system of detention in Egypt

Prepared by Mohammad el-Ghamry

Published in Cairo by CHRLA, The Center for Human Rights Legal Aid, September 1995


1 Emergency Law

2 Grounds for detention

3 Rights of detainees and the system of appeal against detention

4 Conclusions


Introduction

The future of human rights in Egypt is a cause for concern; the vicious circle of violence and counter-violence between the government and the Islamist groups (Gama'at Islamiya) and the absence of the rule of law continues with no signs of ending in the near future. This crisis-ridden reality manifests itself clearly in the erosion of constitutional and legal guarantees for human rights and fundamental freedoms with the extension of the Emergency Laws in Egypt for three additional years in 1994, bringing the State of Emergency to a total of 16 consecutive years. In this way, the Emergency Law has become, in fact, the Constitution, giving far-reaching powers to the executive and allowing it to ignore many constitutionally guaranteed rights and freedoms, as well as those guarantees stipulated in the Code of Criminal Procedures. The Emergency Law also unjustly overrides the judiciary, creating an exceptional situation where the judiciary is obliged to make rulings which are normally contrary to Egyptian law. Additionally, it grants the President wide-ranging powers in the field of justice, including the right to approve rulings issued by State Security (Emergency) Courts, the right to request re-trial, and the power to refer legal cases to military courts.

Reports issued by human rights organizations unanimously agree that the right to freedom and security of the person, guaranteed by the Egyptian Constitution, has suffered gross violations under the State of Emergency. Thousands of members of Islamist groups and those suspected of being members of or sympathizing with such groups have been subjected to long-term arbitrary detention. The authorities continue to ignore acquittals and release orders of hundreds of defendants and detainees. They have also extended arbitrary detention to include vast sections of the public not involved in the armed battle between the government and the armed Islamists, such as members of political parties and professional syndicates.

Detention is an emergency measure to which the authorities resort in exceptional circumstances. It raises many important judicial questions and issues surrounding its practice and theory. A detainee is a person who has not committed any crime to justify his arrest and trial. Nevertheless, his freedom is restricted by an administrative decision contrary to Article 66 of the Egyptian Constitution which states that 'an offense and penalty may be established based on a law alone, and no penalty may be inflicted except by a court ruling'.

Therefore, even if we suppose that, in the case of emergency, persons, in certain cases and conditions, may be detained by an administrative decision, these powers are not absolute. The conditions and cases of detention should be clearly and accurately defined to prevent the miscarriage of justice. Moreover, sufficient constitutional and legal guarantees should be provided for detainees and safeguards against unfair detention.

On establishing the grounds for detention, the legislator used general, ambiguous expressions such as 'suspects' and 'dangerous to security and public order'. Such expressions are open to different interpretations that widen the grounds for detention. Meanwhile, guarantees provided for detainees are either incomplete or non-functional because of the authorities' repression.

The objective of this short study is to try to deal with the most important constitutional loopholes and shortcomings related to the legal framework of detention through 3 main themes as follows:

  1. Emergency Law.
  2. Grounds for detention.
  3. Rights of detainees and the system of appeal against detention.
  4. Conclusions

Introduction | Part 1 | Part 2 | Part 3 | Part 4

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