The president cannot legally order arbitrary arrests as part of the emergency law, the Supreme Constitutional Court (SCC) ruled on Sunday.
The first paragraph of the third article of the emergency law, which allows the president to order arbitrary arrests, was seen as unconstitutional by the SCC. The article states the president is able to mandate the security apparatuses to issue arrest orders without getting judicial authorisation.
Constitutional expert Ra’fat Fouda said these powers were introduced in 2012 and gave the president rights that are not compliant with legal or humanitarian principles.
The SCC cancelled the article and withdrew this right from the president, which the court says would turn him into a dictator and not a president in a state governed by law.
Human rights lawyer and head of the Arab Penal Reform Organisation Mohamed Zare’ said that this court ruling limits the increase of arrest operations without court orders. “It puts a restraint on security apparatuses so that they adhere to the law… If they go against that decision, they will be going against the constitution.”
Egypt had previously been in a state of emergency from 1981 until May 2012 when the Supreme Council of the Armed Forces decided to not to renew the status.
With the exception of three governorates, the state of emergency has not been applied in Egypt since. President Mohamed Morsi had declared a state of emergency in Port Said, Suez and Ismailia for 30 days in January amid ongoing protests and violence.
Zare’ said although the state of emergency was lifted, there has not been much of a difference. “Mubarak arrested people through emergency law…” he said, adding that Morsi has found other ways like preventative detention to put political opponents in prison. The human rights lawyer claims that 3,000 people have so far been arrested during Morsi’s period in office, which will complete its first anniversary by the end of June.
Article 148 of the constitution states that the president shall announce a state of emergency after taking the cabinet’s opinion on the matter, then present the decision to the House of Representatives within the next seven days, in a manner governed by the law. In the absence of the House of Representatives, the article states the president should present his decision to the Shura Council instead. “This is the new situation which is not very different from the old situation,” Zare’ said.
Article 2 of the emergency law states that the president declares and ends the state of emergency so long as he provides the reason for the declaration, where it applies and when it starts.
The Egyptian Initiative for Personal Rights (EIPR) said in February that the law goes against the key principles of personal freedom and personal property.
The law also allows for people to be tried before extrajudicial courts, and according to Article 19 of the law, even after the lifting of the state of emergency, extrajudicial courts will continue to view the cases that were referred to them during emergency rule.
Last February, lawyers from the Hisham Mubarak Law Centre and EIPR made an appeal to the court to review several articles of the emergency law.