Egyptian Justice Minister Ahmad Mekki told Kuwaiti newspaper Al-Jarida on Monday the Egyptian government is in the process of writing a new emergency law. (Egypt Independent has the story in English). He said it would allow the president to declare a state of emergency law with a duration of one week only to combat outbreaks of “thuggery.” It seems to me this legislation is a bit premature, considering such a law would rely on an article of the still-unfinished constitution that should delimit the cases in which the president may declare the state of emergency and the amount of oversight parliament will have over the declaration, continuation and cancellation of the emergency.
A state of emergency, which according to the 1971 constitution and 1958 law allows the president and his security forces to detain individuals indefinitely without trial and to restrict speech, public assembly and other civil rights and liberties, has been in effect in Egypt in one form or another for 64 of the past 73 years. In its most recent guise, it required periodic renewal by parliament. This was usually easy for ex-President Mubarak to obtain from his National Democratic Party-dominated legislature. However, the short-lived Muslim Brotherhood post-revolutionary parliament decided to let it expire on May 31, ending the Supreme Council of the Armed Forces’ power to transfer crimes to military or state security courts. (They had sent thousands of such cases in 2011 but mostly had stopped anyway in this year). The symbolism of this legislative action against executive power was undoubtedly one of the SCAF’s reasons for its ruling to dissolve parliament a little more than two weeks later.
Now that President Morsi has cut a deal with the military to ease his elderly rivals from their positions of power in SCAF, and he is actively reasserting most of the president’s historical powers (including the power to declare war), the dilemma over how to handle Egypt’s public security is settling on his shoulders. When the Muslim Brotherhood (belatedly) joined the revolutionary furor of January 2011, it implicitly endorsed the demand for the end to military trials for civilians and to the state of emergency. At the same time, Egypt’s large security bureaucracy is mired in thousands of man-years of authoritarian training, and it has reflexively withdrawn both from political repression and to a certain extent simply maintaining law and order. Now in a position of power, Mursi has to reconcile his promises to the public with the reality of running an enervated state confronting both a very active political opposition and violent insurrection in the Sinai.
The state of emergency, for better or (mostly) worse, has been a defining feature of liberal democratic constitutions since the First World War. But the political discourse in Egypt needs to overcome its fixation on “thugs.” During the revolution, this became the standard term the state used for protesters, especially those that resisted police repression; the revolutionaries have since turned it back on plainclothes police and hired pro-state protesters that have fomented violence on the street. “Stopping thuggery” is rather like outlawing outlawishness. (In the Al-Jarida interview, Mekki uses al-ashqiyaʾ, a term with a long history in state discourse meaning more than just criminals, but bandits or outlaws that have transgressed against the state). There should be sufficient specific measures in the penal code to arrest and try in civil court individuals causing violence or committing other crimes without resorting to the emergency law.
Mekki’s comments have caused a predictable uproar among opposition figures, including Amr Moussa. PM Hesham Qandil denied that the law would even be an “emergency law,” and Mekki has since met with human rights activists to explain the legislation. As the constituent assembly begins to release its draft constitution to the public, expect the debate about police powers (among many others) to intensify.