Chief Judge Mohamed M. Youssef

In times of crisis, governments often must resort to extreme measures, where people’s basic day-to-day rights may be compromised for the broader needs of society. It is challenging to strike a balance between managing crises effectively and preserving the fundamental rights and freedoms integral to the values of democratic societies. The recent experience in Egypt illustrates this tension. Since the outbreak of the coronavirus pandemic, while taking steady preventive and preemptive measures to mitigate the spread and impact of COVID-19, Egypt has been striving respect, protect, and fulfill people’s essential rights to the extent possible. As part of national efforts to curb the spread of the COVID-19 pandemic, many countries enacted emergency measures, often imposing curfews and lockdowns. These measures restricted people’s freedom of movement and right to peaceful assembly, and even hindered their access to the justice system. It is imperative to ensure that these restrictions are justified and imposed in a measured way.  

Article 4 of the International Covenant on Civil and Political Rights (ICCPR) permits member states to deviate temporarily from their obligations under the convention to the extent necessary to protect national interests. The covenant sets forth threshold requirements nations must meet to exercise this authority.[1]

For states to derogate from their obligations under Article 4 of the convention, they are required to do the following:

1. Proclaim a state of emergency.
2. Formally notify the secretary general of the United Nations of the rights derogated from, and the reasons for and extent of these derogations.
3. Explain the necessity and proportionality of the measures taken.
4. Comply with the state’s international obligations.
5. Implement the measures without discrimination.
6. Guarantee that the enforced measures do not infringe inviolable rights under the Convention including, among others, the right to life, respect for human dignity and humane treatment, and the freedom of thought, conscience, and religion.[2]

On April 24, 2020, the Human Rights Committee (HRC) issued a statement on the COVID-19 pandemic[3] in which the committee acknowledged that states may invoke their aforementioned right under Article 4 in responding to this pandemic threat. The committee elaborated on the conditions regarding a state’s exercise of its emergency powers.

First, the HRC reiterated the necessity for states to immediately notify the UN secretary general when commencing and when terminating these measures. As noted earlier, the notification must include a detailed explanation of the measures taken, reasons for such measures, and reference to laws adopted.

States must also comply with the concept of proportionality. In adopting restrictions to combat the effects of the COVID-19 pandemic, they should opt for less restrictive measures whenever feasible, such as allowing the enjoyment of public activities while imposing necessary health restrictions like social distancing. States may not rely on their right to restrict rights and freedoms (e.g., freedom of movement, the right to peaceful assembly, and freedom of speech), when public health and public order can be preserved without resorting to such measures.

In addition, states are required to fulfill their obligations under international law, implement restrictive measures without discrimination, and not infringe the inviolable rights referred to in Article 4. The rule of law principles of legality, access to the courts, and guarantees of a fair trial are all rights to be upheld, even in times of public emergency. The threat of the COVID-19 pandemic is not grounds for tolerating racial or religious hatred, or for inciting discrimination and hostility against vulnerable groups or foreign nationals. But there is no official mechanism in place to monitor whether states are complying with their obligations under Article 4. It typically falls to public oversight, civil rights advocates, and human rights defenders to engage in public debate and stand as a backstop to ensure that measures taken to combat the spread of COVID-19 conform with a nation’s obligations under the convention.

In Egypt, the government has acted responsibly to control the spread of the novel coronavirus and to mitigate its socioeconomic impact by implementing bundles of preventive and responsive measures. On March 14, 2020, a presidential decree allocated E£ 100 billion to support the Comprehensive Coronavirus Response Plan.[4] The UN secretary general lauded these measures during a videoconference meeting with African member states of the United Nations, saying they were “a good example of an early response for curbing the spread of COVID-19.”[5] On the regulatory side, the Egyptian constitution allows the president, after consulting the cabinet, to proclaim a state of emergency as prescribed and regulated by law.[6] Along with that, the constitution mandates that Egypt’s National Security Council adopt strategies to maintain national security and take necessary measures to face crises and national disasters.[7]

In May 2020, in the aftermath of the outbreak, the Egyptian parliament amended the law regulating the state of emergency, giving the president additional regulatory powers when proclaiming a state of emergency.[8] As a result of the amendment, the prime minister—delegated by the president[9]—adopted measures, among others, to suspend activities in educational facilities; suspend work in public-service sectors; ban private and public assemblies; suspend international travel; impose quarantine measures on returning Egyptian expatriates; restrict exportation of certain commodities and goods; set prices for some basic services and commodities; transform some schools, youth centers and other state-owned properties into makeshift hospitals; and control scientific research and laboratory activities.[10]

Despite the fact that these measures partially curbed people’s rights of movement, assembly, and personal liberty, they granted rights and privileges as well. For example, the government adopted regulations to permit the deferment of utility bills, extend tax declaration and payment deadlines, allocate cash and in-kind assistance to individuals and families, provide necessary support to medical research institutions, and provide financial and in-kind support to economic sectors suffering from the negative impact of the pandemic.[11]

This unprecedented situation has created challenges for Egypt’s judicial system, particularly when it comes to criminal justice. The Supreme Judicial Council, the minister of justice, and the prosecutor general (PG)[12] have declared a countrywide state of emergency beginning March 16, 2020 (which was renewed and extended until June 27)—courts have been closed, hearings and trial proceedings suspended, and cases administratively adjourned. However, courthouses continue to address urgent matters related to pretrial detention, essential legal proceedings, and administrative work while applying health guidelines, particularly social distancing.

Detention facilities, places potentially susceptible to the rapid spread of the virus, have been subject to stringent measures. All in-person visits have been suspended, inmates’ daily activities have been restricted, regular medical checks are conducted, there is frequent sterilization of common areas such as food halls, and measures have been taken to speed up the release of parole-eligible inmates.[13]

Some measures that have been implemented to tackle the pandemic, such as curfews and lockdowns, have imposed notable social cost. In addition to stress from economic setbacks, quarantines and stay-at-home orders have resulted in a surge of domestic violence incidents, as victims and those vulnerable were isolated with their abusers. In response, the National Council for Women and the Ministry of Interior’s Domestic Violence Division has increased access to assistance through domestic-violence hotlines. Egypt’s Ministry of Social Solidarity has amped up precautionary health measures and distributed awareness-raising leaflets to foster homes and orphanages as well as correctional facilities, nursing homes, and social-protection facilities.[14]

With courts closed and trials suspended, people’s ability to access justice services in an effective and timely manner has been significantly hampered, though urgent criminal proceedings and the processing of criminal claims continues. In response, the prosecutor general has ordered prosecution offices to work with a reduced workforce; the staff work in shifts and rotations. When an investigation is conducted, the accused, defense counsel, and others deemed necessary are permitted to be present, but no others. Health guidelines have been mandated in the courts, including wearing face masks at all times.[15]

In a new step to facilitate public access to the criminal justice system, the PG has allowed crime reports to be filed online, with an option to upload relevant documents. In court proceedings, prosecutors are instructed to recommend alternative measures to pretrial detention, and courts are considering the possibility of holding virtual pretrial detention hearings.[16]

Since June 27, courts have been gradually returning to their normal course of operation; Egypt’s supreme court (the Court of Cassation) has revamped its website, allowing public access to court decisions, legislation, and publications. More importantly, a new feature has been added that offers free electronic services and provides access to the status of filed petitions and scheduled hearing sessions. The Ministry of Justice has also upgraded its website somewhat, adding electronic service features such as posting information on the current status of cases litigated before both trial-level courts (first-instance courts and courts of appeal).[17] On June 29, the government also suspended procedural time limits for court proceedings taking place between March 17 and June 26. This decree does not apply to petitions involving pretrial detention or appeals filed by incarcerated defendants.

The pandemic has taken a heavy toll on Egyptian society and the economy. But the nation will recover, and its judiciary will continue its current path toward using technology to support access to justice.

About the Author

Chief Judge Mohamed M. Youssef was a Visiting Fellow at the Federal Judicial Center in 2017. Judge Youssef is a member of the Egyptian Court of Cassation’s technical bureau and of the Permanent High Committee for Human Rights’ technical secretariat. He was formerly a senior member of the Ministry of Justice’s international cooperation department. The views expressed in this article are the author’s view and do not represent those of the institutions he is affiliated with.