A Three-Month State of Emergency De

On 10 April 2017, a presidential decree declared a nation-wide state of emergency to take effect on the same day for the duration of three months (the “Decree”).[1] The Decree was enacted a day after terrorist attacks on two Coptic Orthodox Churches – the St. George Church in Tanta and the St. Mark Church in Alexandria – left at least 45 people killed in what has become known as the Palm Sunday Bombings. In accordance with the 2014 Constitution, the Decree was subsequently approved by the Egyptian parliament, which has also approved in principle – pending review by the State Council – significant changes to the 1958 Emergency Law (the “Emergency Law”).[2] The Emergency Law takes effect and becomes applicable upon the declaration of a state of emergency. While businesses may not be directly impacted by the instatement of the state of emergency, it remains to be seen how the security situation and the response to it will impact the general investment environment, and specific sectors such as tourism.

Background

Besides a few short intervals, Egypt has been under a state of emergency since the imposition of martial law in 1914. However, with the exceptions of some areas of Northern Sinai which have been in a near continuous state of emergency since August 2013, the rest of the country has only seen two short states of emergency since June 2012. Moreover, the recent Decree marks the first time since the adoption of the 2014 Constitution that a nation-wide state of emergency is imposed. Before declaring a state of emergency, Article 154 of the Constitution requires the president to consult the cabinet of ministers. Within seven days of making the declaration, the president must submit it to parliament for review. According to the same constitutional Article, the state of emergency must be approved by a simple majority of Parliament members. The maximum duration of the state of emergency is three months, renewable only once for another three-months period by a two-thirds majority vote of the parliament. Compared to pre-2012 constitutional provisions, Article 154 adds some limitations on the president’s power to declare a state of emergency. The main effect of the declaration of a state of emergency is that it triggers the application of the Emergency Law, which provides significant powers to the executive authority. One of the notorious provisions of the Emergency Law was Article 3(1), which gave the president, and whomever he authorizes, the power to order the arrest, detention, and search of persons and places without complying with the provisions of the Criminal Procedures Code. While, as will be explained below, this provision was deemed unconstitutional by a decision of the Supreme Constitutional Court in June 2013,[3] other parts of the provision, such as that empowering the president to impose restrictions on freedom of movement, are still applicable. The Emergency Law also activates the Emergency State Security Courts, which do not have the same level of independence or protections for the defendant as ordinary courts. The Emergency Law grants the president the authority to refer any cases to the Emergency State Security Courts, the decisions of which cannot be appealed, and can be annulled by the president.

Provisions Applicable to Businesses

Authorities have consistently stated that the Emergency Law will only be applied to cases related to terrorism and threats to state security. It is still to be noted though that some provisions of the Emergency Law may have a broader scope. For instance, Article 3(2) – 3(5) of the Emergency Law allows the president, and whomever he authorizes, to order the monitoring and expropriation of communications and media, scheduling opening and closing hours of shops, seizing movable and immovable property, imposing receivership on corporations, and evacuating or isolating prescribed areas.

The Proposed Amendment

In addition to approving the president’s declaration of a state of emergency on 11 April 2017, parliament also approved amendments to the existing Emergency Law, subject to review by the State Council as required by Article 190 of the 2014 Constitution. Thereafter those amendments will be sent back (potentially with comments) to parliament for a final vote. If it passes parliament’s stage, the amendments will be sent to the president for ratification and publication, upon which they will take effect. According to media reports, the amendments give security agents the authority to detain suspects, where there are indications that they have committed a crime. Detention can continue for seven days after obtaining approval from the prosecution and pending the collection of further evidence. During this phase, the detainee does not have to appear before a prosecutor or a judge, in contrast to the regular process contained in the Criminal Procedures Code. A further amendment proposes that public prosecutors are granted the power to make a 30-day detention request to the Emergency State Security Courts, which can be renewed indefinitely for persons who pose a threat to public security. The suggested amendment is reported to have been a response to the limits imposed on the powers of the executive by the decision of the Supreme Constitutional Court in June 2013. The Court had previously declared the unconstitutionality of the president’s powers to order the arrest, detention, and search of persons and places without complying with the provisions of the Criminal Procedures Code.

Conclusion

The recent declaration of the state of emergency is a significant move as it signals the first time since the enactment of the 2014 Constitution that authorities have deemed the country to fall under such state. While businesses may not be directly impacted, it remains to be seen whether this move will have an impact on the perception of Egypt’s appeal for foreign investment, and on the inflow of tourists at a time when the country is desperately seeking both.   [1] Presidential Decree No. 157/2017 declaring a nation-wide state of emergency for a period of three months starting 1:00 PM on Monday 10 April 2017, Official Gazette, Issue No. 14 (bis) (b), 10 April 2017. [2] Presidential Decree-Law No. 162/1958 on the State of Emergency, Official Gazette, Issue No. 29 (bis) (b), 28 September 1958. [3] Supreme Constitutional Court Rule for Case No. 17/Judicial Year 15 declaring the unconstitutionality of Article 3(1) of Presidential Decree-Law No. 162/1958 on the State of Emergency which gave the president, and whomever he authorizes, the power to order the arrest, detention, and search of persons and places without complying with the provisions of the Criminal Procedures Code, Official Gazette, Issue No. 22 (bis), 3 June 2013.