IV. THE STATE OF EMERGENCY AND THE SUPREME STATE SECURITY COURT

The state of emergency in Egypt,¹¹ in force almost continuously since 1967, was extended for a further three years in May 2000 in the face of opposition from various sectors of Egyptian society. This emergency legislation, which violates both Egypt's Constitution and its international human rights obligations, has facilitated an environment where the authorities abuse fundamental human rights on a wide scale and with impunity, and where they adopt arbitrary measures to silence their critics in the name of safeguarding national security.

The infringement of basic rights under the continuing state of emergency violates Egypt's obligations under the International Covenant on Civil and Political Rights (ICCPR).¹² These rights include freedom from arbitrary arrest (Article 9); the right to a fair trial (Article 14); freedom of thought (Article 18); freedom of expression (Article 19); and the right to freedom of association (Article 22).

The wide-ranging and extensive powers given to the security authorities under the state of emergency enables them to arrest at will people suspected of being a threat to national security and public order. Such persons can be held in detention without charge for prolonged periods: in some cases this has meant not months but years. Similarly, censorship of the press can be imposed and newspapers ordered to shut down if the authorities decide that such measures are required for reasons of national security or public safety. Since 1996, legislation governing the media has provided custodial sentences for offences such as slander, insult and libel. Emergency legislation also infringes workers' rights by prohibiting strikes, which in some cases have been violently broken up. Public meetings and election rallies are also prohibited.

The state of emergency has also made it possible for the authorities to refer civilian defendants to military courts or to exceptional state security courts, in effect creating a parallel court system that is susceptible to government influence, undermining the independence of the judiciary. Since 1992, political activists, including those who were not involved in any violent activity, have been tried before military courts following procedures that did not meet minimum fair trial standards, as set out in Article 14 of the ICCPR.¹³ These include the right to be tried before a competent, independent and impartial court; the right to have adequate time to prepare one's defense; the right to be defended by a lawyer of one's choice; and the right to appeal to a higher court. These basic rights have been regularly infringed, including in cases where the defendants were accused of "terrorist" offences and faced the death penalty, and were subsequently executed.

The Supreme State Security Court (Mahkamat Amn al-Dawla al-'Ulya) was established in accordance with Law No. 105 of 1980,¹⁴ itself promulgated on the basis of a continuing state of emergency. Together with military courts, the Supreme State Security Court constitutes a parallel system for the administration of justice that follows procedures that consistently violate internationally recognized fair trial norms. Law No. 105 of 1980 empowers the Supreme State Security Court to hear cases involving serious offences defined in the Penal Code as prejudicial to the security of the state,¹⁵ as well as a variety of offences under other laws.¹⁶ The court bench is composed of three civilian judges drawn from the appeal courts, although two military judges may also be appointed to sit alongside the regular judges.¹⁷ Verdicts of the court can only be appealed by review or cassation,¹⁸ limiting the grounds for appeal to points of law and precluding consideration of the facts of the case.¹⁹ If an appeal by review is upheld, the Court of Cassation may either nullify the verdict and acquit the convicted party or order a retrial.²⁰ If, however, an appeal by cassation is upheld, the Court of Cassation can only order a retrial. In such instances, the case is usually referred back to the Supreme State Security Court for retrial before a different panel of judges but following the same procedures.²¹ If a retrial results in a conviction once again, and the verdict is appealed, the Court of Cassation on this occasion can rule not only on points of law but also on the substance of the case.²²

¹¹ Law No. 162 of 1958 Concerning the State of Emergency (as amended).

¹² The Government of Egypt ratified the ICCPR on January 14, 1982.

¹³ Most recently, the government announced in mid-October 2001 that 253 Islamist detainees would be tried before the Supreme Military Court on a variety of charges, including membership of illegal organizations and planning to overthrow the government by force. The trial of ninety-four of them, which opened on November 18, was ongoing at the time of writing.

¹⁴ Law No. 105 of 1980 on the Establishment of State Security Courts, which came into force on May 21, 1980.

¹⁵ Ibid., Article 3.

¹⁶ These include offences specified under Law No. 34 of 1972 Concerning the Protection of National Unity, and Law No. 40 of 1977 on the Regulation of Political Parties (as amended).

¹⁷ This is provided for in Article 2 of Law No. 105 of 1980, which states that the two military judges are appointed by the President of the Republic.

¹⁸ As stipulated in Article 8 of Law No. 105 of 1980.

¹⁹ Procedures for appeal by cassation are governed by Law No. 57 of 1959 Concerning Cases and Procedures for Appeal before the Court of Cassation (as amended by Law No. 106 of 1962), while those for appeal by review are set out in the Code of Criminal Procedure (Law. No. 150 of 1950 as amended). The law defines three possible grounds for appeal by cassation: where the verdict is based on a violation, misapplication, or misinterpretation of the law; where the verdict is invalid; and where procedural irregularities have had a bearing on the verdict (Article 30 of Law No. 57 of 1959). Article 441 of the Code of Criminal Procedure defines five separate grounds for appeal by review, including instances where new information on the case comes to light subsequent to the verdict and which establishes the innocence of the convicted party.

²⁰ Code of Criminal Procedure, Article 446.

²¹ Law No. 57 of 1959 (as amended), Article 39.

²² Law No. 57 of 1959 (as amended), Article 45.