State media have announced that the Supreme Council for the Armed Forces allowed Egypt’s constitutional state of emergency to expire on Thursday, May 31, 2012. This decision came after a week of pressure in parliament and from NGOs like Human Rights Watch. As of tomorrow morning, it will not be legal for the state to refer crimes by civilians to military or state security courts, which do not allow habeas corpus or appeal. However, as Human Rights Watch points out, the state has not made clear what will happen to the 188 (at least) cases remaining in these courts. Moreover, the 1958 Emergency Law remains on the books, and it would only require the consent of a future parliament to reinstate it. While this would now be more difficult because Egypt’s legislature is no longer controlled by a single party, it is possible to imagine scenarios where a Muslim Brotherhood-led coalition would consent to this if protests against the growing Brotherhood-Military consensus threatened to grow unruly.
Egypt’s constitutional system — and more importantly, the ingrained attitudes of its jurists — make repeated transitions between a “rule of law” and “emergency rule” possible. In fact, Egypt has experienced six distinct periods of emergency rule lasting altogether 63 of the past 73 years. Mubarak was Egypt’s only president who spent his entire term in office under a state of emergency, which he instated after President Sadat’s assassination on October 6, 1981. Both Nasser and Sadat ended earlier versions of emergency rule during periods of transition to new constitutional systems, under pressure from political forces: Nasser in 1956 and 1964, Sadat in 1980 (unfortunately on May 15, Israel’s national day) in an attempt to liberalize the party system that seriously backfired. There were also periods of emergency rule during the Second World War and the 1948 Palestine War, which prepared Egyptian jurisprudence for its fluency and flexibility with the concept today, but they were harder to maintain in effect because of a pluralistic (if seriously dysfunctional and patrician) political system.
One of the problems of conceiving of emergency rule as a condition that can be switched on or off like a light bulb is that a great deal of legislation passed legitimately in parliament, which remains in effect, are embedded in the algorithms of military proclamations, (al-awāmir al-ʿaskariya, الأوامر العسكرية) made by the executive (i.e. President or currently, SCAF) in his role as military governor of the parallel legislative regime of the state of emergency. For example, Law 34 of 2011 criminalized industrial strikes “during the state of emergency.” What happens when the state of emergency ends? Technically the law is invalid. However, untangling standards and practices in the execution of these laws in the Ministries of Interior and Justice for the myriad other examples often takes years — and frequently, many of the illiberal provisions get grandfathered into the civilian legal code under the radar of public scrutiny.
Moreover, the ascendency of the military’s political power in Egyptian public space has posed the threat of an illiberal fictional jurisprudential state of emergency transforming into a regime of illiberal fictional physical zones of military rule. According to Magda Boutros of the Egyptian Initiative for Personal Rights, all of the laws allowing military trials for civilians that threaten “a military facility or military area” are still in effect. What is a military area? Visitors to Egypt are familiar with the concrete fences surrounding mostly boring-looking empty desert areas on the outskirts of Cairo forbidding passersby from taking photographs of military areas. Lacking any current civilian oversight of the military’s activities, ANY area is a military area, and in particular protests that the military police are repressing.
Because of these limitations, the Egyptian human and civil rights organizations are rightfully marking this event as a minor victory. Until there are constitutional guarantees of civilian space as inviolable by military or security prerogatives, and serious functional reform of the security apparatus and its day to day treatment of the public, caution is warranted.