Saturday, September 24, 2011

In All Cases, the State of Emergency

“In all cases, the announcement of a state of emergency will be for a limited time period not exceeding 6 months,” so says article 59 of the provisional constitution. ‘In all cases’, that’s a very powerful phrase and it’s not a mistranslation either. It did not say in ‘all of the above cases’ or ‘in most cases’ or ‘in all relevant cases’. The absoluteness of this statement is beyond contention. Since this is the constitution we’re plagued with, we must follow this rule.

According to Tarek El Bishry, who headed the committee to write the new constitutional declaration, the emergency law has ended on 19 September, 6 months after the referendum. 
I personally think it will end on 30 September, 6 months after the adoption of the provisional constitution on 30 March .
In any case, we know that we were in a state of emergency when the SCAF announced that military trials will be ongoing as long as the emergency law is active. That happened even before the events of the Israeli embassy on 9 September and the announcement that the emergency law was necessary.
The SCAF on the other hand, thinks that Mubarak’s declaration of the extension of the emergency law is still valid till June 2012. They are gravely mistaken. Article 62 states "All laws and regulations decided upon before the publication of this Announcement remain valid and implemented; however, it is possible to cancel laws or amend them according to the rules and procedures adopted in this Announcement."

This means that any law in conflict with the new constitutional declaration needs to be amended to match the constitution, which means the decision taken in 2010 to extend the emergency law is void because it is in direct conflict with the constitution and constitutions supersede any law. The SCAF do not have the power to extend the emergency law in absence of a parliament and a popular referendum.
Article 59
The president of the republic, after taking into account the opinion of the cabinet, can announce a state of emergency as stipulated in law. He/she must present this announcement to the People’s Assembly within the seven subsequent days to decide its view on this matter. If the state of emergency is announced in a period of recess, the Assembly must be called back to session immediately to review the matter, taking into account the time limit mentioned above. If the People’s Assembly is dissolved, the matter will be reviewed by the new Assembly at its first meeting. A majority of the members of the People’s Assembly must agree to the announcement of a state of emergency. In all cases, the announcement of a state of emergency will be for a limited time period not exceeding 6 months. It is not permissible to extend it, except after a people’s referendum on the matter and their agreement to an extension.
In all cases, we cannot be in a state of emergency for more than six months. Yet we are. The real state of emergency is a military dictatorship that does not respect the constitution or the law or any of its citizens for that matter. The real problem is that we have no means of respecting the law as long as the enforcers themselves are the law breakers.

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