Nasser Amin* argues against the incorporation of emergency laws into the civil legal system Something in Hosni Mubarak's recent speech merits clarification. The abrogation of emergency laws, which he promised, is supposed to move us closer to freedom and bolster individual rights. But the president suggested that emergency laws are going to be replaced with new laws that would be used to address internal security issues. This is scary, if you ask me. Legislating an alternative to emergency laws is worse than having emergency laws in force. After all, emergency laws are a temporary measure -- supposedly. They grant the state extraordinary powers but only in unusual circumstances, such as war, natural disasters, epidemics, etc. Theoretically at least, the government is not allowed to call emergency laws into effect unless one or more of these unusual circumstances is in evidence. The Egyptian constitution forces the government to state the duration of emergency laws, as well as the geographic zone in which the laws are to be applied. The problem is not with emergency laws as such. So long as their implementation is in line with international and constitutional criteria there is little reason to worry. It is fine to have emergency laws, so long as these are shelved when the need no longer exists. Incorporating emergency laws into the gamut of regular, civil law is another thing entirely, and definitely the worst-case scenario. Once an integral part of the legal system, these laws will be impossible to lift and difficult to rescind. The Egyptian constitution states that citizens must not be arrested except upon instruction from the judiciary. The constitution upholds the right of citizens to appeal their detention. At all times, the state has to declare the whereabouts of detainees. Police have no right to search individuals or places without a legal warrant. And unless charges are pressed within a certain span of time, individuals in detention must be released. All the above clauses are now in force. But once the system changes, these guarantees on personal freedom may disappear. An ordinary law substitute to emergency laws would give the government opportunity to encroach on citizen rights during detention and searches. The powers given to lawyers over matters of detention would likely decrease. Once this happens, public freedoms would suffer, for the judiciary would no longer be able to protect the public. The government's wish to replace emergency laws with regular law would open the way wide to further encroachment on personal freedoms. In force now for 24 years, the government is embarrassed by the emergency laws. It wants to replace them with laws that many fear could give it wider powers to detain individuals without charge, refer defendants to military courts, and detain people on flimsy grounds. The government will have rid itself of the stigma of the state of emergency, while expanding its extraordinary powers, legally and permanently. Serious flaws were introduced into our legal system in 2001. The so-called "terror law", introduced four years ago, flouts the rights of defendants during detention and investigation. The Public Prosecution now has the power to hold individuals in protective custody for up to six months in certain crimes, as opposed to four days before the above-mentioned law was passed. Practically speaking, the law grants the government the right to punish its political opponents at will. With such extensive legal power already in the hands of the government, why do we need to make things worse? Incorporating emergency laws into ordinary laws is nothing short of catastrophe, particularly when the legislation is proposed by a government that lacks the aptitude for sensible law. The proposed changes would push our legal system further away from international standards of fair trials and human rights. The government would not have suggested such a move had it not been for the fact that the 11 September attacks led to penal law amendments in both the US and the UK. In both countries, new laws were passed allowing for indefinite detention and interrogation in the absence of lawyers. These are extraordinary measures and in my view too harsh to condone. But let's remember that both the US and the UK have a tradition of legal probity that we don't share. In both the US and the UK, the law and the constitution are upheld by genuine parliaments and institutions and a vigil civil society -- things to which Arab countries, including Egypt, still aspire. The government is acting in line with its age-old propensity for heavy-handedness. The abuse of power and the erosion of citizen rights are what led us to where we are now. And yet the government is promising us more of the same. The US and Europe may be fiddling with their legal systems, but these are countries that have decades of solid legal practice on their record. These are countries with genuine institutions. These are societies with natural immunity to despotism. There is no comparison between their situation and ours. What worries me, even more than the measures the government is aiming for, is the legal thinking that underlies these measures. Citizen rights and public freedoms don't seem to be a concern at all. I strongly advise against the incorporation of emergency laws into our ordinary legal system. The current criminal law, which has undergone serious changes already, is sufficient to deal with all crimes. Egyptian laws are already deformed, and don't need to be more so. We have more than our fair share of clauses that violate human rights and undermine guarantees for fair trials. Let's not make things worse. * The writer is a lawyer and director of the Arab Centre for the Independence of the Judiciary and Legal Profession.
