By Jacob Turner* —
The overthrow of the Mubarak regime marks the beginning of a constitutional conundrum which now faces the Egyptian people. The current document is rife with wording which serves to constitutionally-enhance and entrench the position of a totalitarian government. In light of the proposal by the military council to appoint an interim Constitutional Committee to redraft areas of the constitution, this article briefly examines the problems with one area: Emergency Powers, and suggests a possible new model.
Emergency provisions are those which allow for the suspension or the amendment of the current legal regime in times of extremis. They are normally justified on the basis that during peace and stability, a regime which protects rights such as liberty and property is appropriate. However, where the very existence of the state is threatened, then it is necessary that certain laws be suspended. As Lincoln argued: “By general law life and limb must be protected; yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb.” The existence of emergency provisions dates back at least to Roman times: in emergencies, a temporary dictator was appointed to deal with the problem. However, unlike the famous example of Cincinnatus – who was appointed dictator to repel an invasion, then chose to eschew power and return to his farm – emergency provisions are often misused. This was most certainly the case in Mubarak’s Egypt.
Egypt has been in an almost constant state of emergency since 1967. Article 179 was added in 2007, allowing for yet further encroachments on civil liberties, ostensibly to protect from a terrorist threat. This has allowed the government unfettered power for a potentially unlimited time, which it has exploited. There are three main reasons why this is possible:
1. The situations in which such emergency powers are to be used are not clearly enunciated.
2. The exact ambit of these powers is not mentioned, meaning that it is, in theory, limitless.
3. The checks and balances are minimal: there is little oversight regarding the declaration of the emergency, the exercise of emergency powers, and the duration or renewal of the state of emergency itself.
The full text of the key articles of the current Egyptian Constitution reads as follows:
[box]Article 74: Should there emerge any instant and serious danger that threatens national unity or the safety of the motherland or obstructs the constitutional role of the State institutions, the President shall take urgent measures to confront such danger after taking the opinion of the Prime Minister and the Speakers of the People’s Assembly and the Shoura Council and deliver a statement to the people. A referendum on these measures taken thereby shall be conducted within sixty days of adopting such measures. The People’s Assembly and the Shoura Council may not be dissolved during the time of exercising these authorities.[/box]
[box]Article 179: The State shall seek to safeguard public security and discipline to counter dangers of terror. The law shall, under the supervision of the Judiciary, regulate special provisions related to evidence and investigation procedures required to counter those dangers . The procedure stipulated in paragraph 1 of Articles 41 and 44 and paragraph 2 of Article 45 of the Constitution shall in no way preclude such counter-terror action. The President may refer any terror crime to any judicial body stipulated in the Constitution or the law.[/box]
The above articles should be replaced with the following text:
i. In a situation as described in Article 75 i), the Declaration of a State of Emergency shall be made by the President after consultation with the Prime Minister and the Speakers of the Assembly. ii. Any such Declaration must be subject to the ratification of the People’s Assembly and Shoura Council [the Upper House of the Egyptian Bicameral Parliament] by a majority of not less than 2/3 of each body, as soon as is possible, and in any event within ten days of the Declaration being made. The Declaration of a State of Emergency shall then be subject to a vote on its continuing validity every thirty days. If at any point the State of Emergency should not be re-ratified, or if the vote is not held within the allotted period, then the State of Emergency shall cease to be of effect. iii. Every declaration of a State of Emergency shall be subject to judicial review by the Supreme Court, both in terms of the existence of the factors necessary for a State of Emergency to be called and as to whether the actions taken under the State of Emergency are lawful. Such actions shall only be lawful where they are rationally connected to the emergency, no more than was necessary to avert the emergency and did not result in an infringement of rights which was disproportionate to the damage avoided. The judiciary will apply particular scrutiny to any infringement of Part Three: Public Freedoms, Rights and Duties, deemed necessary by the government. iv. The court shall award the Executive and Legislature a margin of deference in these rulings, particularly with regard to the existence of the former factors. A decree nisi by the Supreme Court shall render the State of Emergency void.
i. Subject to the provisions of Article 74, in the case of a serious disruption of public order imminently threatening institutional stability, the security of the state, or the peaceful coexistence of the citizenry, which cannot be resolved by the use of the ordinary powers of the police authorities, the President may declare a State of Emergency throughout Egypt or part of it. ii. Upon such a declaration, the government will have the powers strictly necessary to deal with the causes of the disruption and check the spread of its effects. The stipulations of Articles 40 and 42, remain inviolable, even during a State of Emergency. In all cases, the rules of international humanitarian law must be observed. Any measures taken must be proportionate to the gravity of events, and any infringement of freedoms must fulfill the proportionality test set out in Article 74, part iii).
These changes set down a) the situation necessary for a declaration of emergency, b) the powers that are thereby mandated to the executive, c) checks, balances and limitations on these powers. This detailed scheme is necessary to limit the opportunities for the executive to abuse the emergency powers, as has previously been done by Egypt’s rulers. The assumptions underlying this new scheme are as follows:
- It is legitimate for the executive to exercise emergency powers in certain circumstances. Their power to undertake decisive action in these situations should not be unduly slowed or fettered by the other branches of government.
- These circumstances should be limited to the greatest extent possible, such that the disaster is averted with minimum disruption to normal rights and liberties.
Once these powers have been set out in clear legislative terms, the judiciary is then free to interpret them: not so as to tell the executive what to do in times of emergency, but rather to demarcate the boundaries within which the executive may act. The aim of the above scheme is to allow the executive sufficient leeway to act decisively to avert a crisis, but at the same time not allow for the possibility of a “Constitutional Dictatorship.” This is the reason for the ten day “grace period,” with relatively few constraints, but the significant constraints thereafter – especially when it comes to the extension of the State of Emergency.
This new scheme incorporates ex ante controls of emergency powers: by requiring that (after a very short time) they must be ratified by both houses of Parliament, as well as ex post controls by the judiciary. Moreover, both of these elements are dynamic in nature: the authorization is not once and for all, it is an ongoing process which must be repeated – meaning that a constant state of “permanent emergency” is much more difficult for a government to sustain.
The above provisions are modeled on several constitutions which have adopted a more detailed model for emergency powers. The principal sources are Canada’s Emergencies Act 1985 and Columbia’s constitution although provisions have been drawn from the constitutional jurisprudence of the UK, Israel, and Germany inter alia. In particular, the existence of an emergency itself is judicially reviewable. This level of increased scrutiny was first introduced in the UK in the Belmarsh case.
The highly problematic Article 179 has been removed altogether and subsumed into the general State of Emergency scheme under Articles 74 and 75. Although civil rights are highly important, it would be unrealistic to expect certain areas, such as the inviolability of the home or freedom of speech to be completely guarded during a true state of Emergency. It is for this reason that Part Three of the Constitution has not been procedurally ring-fenced. It is substantively protected by the mention of “particular scrutiny” by the judiciary. However, certain non-derogable rights have been built in to the new State Emergency, which act as a minimum guarantee for citizens. That is why Article 40 (equality of citizens before the law) and Article 42 (dignity of prisoners and prohibition of torture) have been accorded protection. This scheme roughly reflects the treatment of certain rights as foundational in all circumstances, found for example in the European Convention of Human Rights. These include those rights whose infringement would amount to a crime in international law.
Although there may well be different – equally acceptable – manners in which the Emergency Power provisions of the Egyptian Constitution may be rewritten, it is hoped that the interim Constitutional Committee will follow the basic principles of this article. That is: any new constitutional provisions relating to Emergency Power must engender ex post and ex ante scrutiny, preserving the freedom of the executive to act to avert an emergency, but preventing these powers from being utilized as a powerful tool of oppression.
*Jacob Turner is an LLM student at Harvard Law School. Before coming to Harvard he did an undergraduate degree in Law at Oxford University.
Letter from Lincoln to Albert G Hodges, dated April 4, 1864, quoted in ‘Abraham Lincoln: A Biography’ By Benjamin P. Thomas, Michael Burlingame, (SIU Press, 2008)
 The State of Emergency was briefly lifted in 1980, then re-imposed following the assassination of President Sadat
 A phrase coined by Clinton Rossiter, in his seminal ‘Constitutional Dictatorship: Crisis Government in Modern Democracies’ (Princeton University Press 1948; Reprinted by Rossiter Press 2007)
 Judgments – A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)  UKHL 56
Image courtesy of Middle East Online