Draft Counterterrorism Law Shores Up Causes of Extremism and Speeds the Collapse of State Institutions
The undersigned rights organizations add their voices to that of the Journalists’ Syndicate, which has rejected the draft counterterrorism law in light of its inconsistency with Article 71 of the Egyptian constitution and because it seeks to reinstate restrictions that journalists have fought against for decades—a struggle that came to fruition in the 2014 constitution. The organizations also add their voices to that of the Supreme Judiciary Council, which rejects numerous articles of the draft law because they erode fundamental rights to litigation and defense and establish a special court to hear terrorism cases. Finally, the undersigned organizations add their voice to those of several writers who reject the law because it sacrifices human rights and the rule of law on the altar of counterterrorism.1
In this context, the undersigned organizations wholly reject the draft counterterrorism law approved by the Cabinet in its meeting of July 1 and reviewed by the State Council’s fatwa and legislation committee for forwarding to the president for adoption. The law constitutes a flagrant assault on the constitution and rulings of the Supreme Constitutional Court (SCC) and further erodes what remains of the venerable Egyptian justice system. It institutes an indefinite, undeclared state of emergency and establishes an exceptional, parallel judiciary. In addition, the vague formulation of the law’s criminal provisions will allow it to be used to suppress a broad spectrum of rights and liberties, such as freedom of opinion, expression, and peaceful assembly and the right of association. The overly broad terms of the draft law may also be used to equate the activities of terrorist organizations and activities undertaken by peaceful political and rights groups, trade unions, newspapers and publishing houses, and websites.
The undersigned organizations are very aware of the danger posed by extremist, violent organizations. We fully understand the severity of the crimes they commit and reject them unconditionally. But confronting these crimes with new legislation misleads the public about the real causes of terrorism, which do not include the lack of deterrent legislation. This draft law deepens our concern that failed counterterrorism measures—those that rely solely on security approaches or the passage of repressive legislation that tramples the rule of law—will continue. The proposed law makes us fear for the collapse of the state itself as it sacrifices the constitution, well-established legal precepts, and the esteemed Egyptian judicial system.
We as rights organizations are not defending “terrorists” as some in government circles claim. Rather we defend all Egyptian citizens who, due to the poor performance of the security establishment and its search for a scapegoat, may find themselves imprisoned as suspects and perhaps tortured and killed for it while the actual terrorists come away unscathed. The examples of this are numerous, as in the Taba bombings, the bombing of the Two Saints Church, and other incidents.
In this context, the undersigned organizations renew their call for a comprehensive social dialogue, inclusive of all political parties and factions, civil society organizations, and public figures that reject violence, with the goal of devising a serious, effective plan to address the roots of extremism and violence. Several rights organizations have already issued such a call in a joint statement following the assassination of the public prosecutor, and it is even more urgent today after the assault launched by extremist forces in North Sinai on several military and police positions on July 1, 2015.
We are gravely concerned by the government’s continued disregard of this appeal and its persistence in responding to terrorism with pointless, ineffectual tools and legislation. These will have the opposite of their intended effect, exacerbating the dangers of the growing terrorism of the last two years and eroding the rule of law.
A reading of the proposed law reveals several problems and flaws that infringe the constitution and established legal precepts. The most important of these are explored below:
An overly broad, vague definition of terrorist acts that equates political parties, trade unions, and rights organizations with terrorist organizations
The first problem in the draft law lies in the definition of the terrorist act itself (Article 1, paragraph 7), which uses vague, ill-defined terms such as ‘public order,’ ‘social peace,’ and ‘national unity,’ all of which could be easily applied to the acts of any person and as such contravene the principle of the legality of the offense, enshrined in Article 95 of the constitution and affirmed by SCC rulings.
Paragraph 2 of the same Article considers a terrorist act to be “any conduct committed with the intent of achieving one of the purposes enumerated in the previous paragraph.” As is clear from these terms, there is a desire to expand the definition of terrorist acts to include “any conduct”; paragraph 2 does not stipulate that this conduct must be violent. This means that even if this conduct is peaceful—participating in demonstrations, for example, writing articles, or convening conferences—it could be considered a terrorist act if the competent bodies believe that it harms national security or social peace.
The same Article also states that a terrorist act may be realized by “impeding the application of any provisions of the constitution, laws, or regulations.” This turns all persons demanding constitutional or legal changes into terrorists and makes them punishable under the law. For example, appeals rejecting the protest law, made by rights organizations and other entities, including the National Council of Human Rights, could be interpreted as an attempt to impede the law. The undersigned organizations believe that the vague formulations used in the proposed law are likely to constitute a threat by considering numerous acts of peaceful opposition to the government, taken by peaceful groups observing the law and constitution, to be terrorist acts. This is even more serious considering the penalties prescribed for these ill-defined acts, which include death in several cases or life imprisonment or long-term imprisonment in many other cases.
Gagging the media and imprisoning journalists in violation of the constitution
The proposed law imposes numerous restrictions on freedom of opinion, expression, and the press. Article 1, paragraph 8 defines the means of financing terrorism to include the provision of data or information by any means, including digital or electronic means. Given the flawed definition of terrorist acts, this provision may be applied to advocacy organizations or newspapers and websites if they publish data or information related to, for example, economic and social conditions, which could constitute the crime of harming the national economy. There were several such cases in the past, most significantly a case in the Mubarak era, which involved the trial of an editor for his publication of what was seen as false news that apparently harmed the national economy.
Article 26 of the law mandates a prison term of five to seven years for any person who promotes or prepares for the promotion of the commission of a terrorist crime, whether orally, in writing, or by any other means. Article 27 sets a sentence of at least five years in prison, for any person who establishes a website with the purpose of promoting terrorist ideas, misleading the authorities, or influencing justice.
The proposed law also introduces a wholly unprecedented provision that entrenches the notion of a guided media and restricts the freedom of journalists. Article 33 brings in a new restriction that prohibits media outlets from seeking out information from different sources, evaluating it, and publishing differing opinions. Pursuant to the Article, a term of no less than two years in prison is prescribed for any person who publishes news or information that contradicts that issued by official bodies as untrue information, without prejudice to disciplinary penalties. Under this Article, the law prohibits media and news outlets from publishing any information that has not been sanctioned by the government, thus making government information an absolute truth that requires dissenters to be imprisoned.
And this is not the only restriction in the law. Article 37 prescribes a fine of no more than LE10,000 for any individual or body who records or photographs trial proceedings by any means or disseminates them on visual, audio, or print media or social and communication networks or any other means, without the court’s permission.
An exceptional judicial system that undermines guarantees for a fair trial
The draft law establishes a special court to hear terrorism cases and institutes an exceptional judicial regime governing these trials and the methods of appeal. The undersigned organizations believe that the law institutes a system of exceptional courts similar to the Supreme State Security Court,, and seeks to modify the criminal justice system when it comes to terrorist crimes. Although the court is established pursuant to the law and its operation is to be defined by the Supreme Judiciary Council, trial and appeal procedures gravely infringe the right to a fair trial and guarantees for self-defense.
Article 50 considers judgments issued in terrorism cases to be issued in presence if counsel for the defendant is present and has made his defense. This establishes an exception to Article 388 of the Code of Criminal Procedure, which bars counsel from representing a defendant tried in absentia. This provision would permit courts to appoint lawyers for absentee defendants without their consent and deprive them of one stage of litigation.
Article 51 establishes another exception by reducing the period in which a judgment in terrorist crimes can be appealed from 60 to 40 days. This is yet another infringement of the right to defense. The Code of Criminal Procedure requires judges to submit their written judgment within 30 days of the pronouncement, meaning that defendants in terrorism cases would have only ten days to study the judgment and file an appeal brief.
Another exception to the Code of Criminal Procedure instituted by the draft law denies defendants a stage of litigation before the Court of Cassation. Under Article 52, a defendant can appeal before the Court of Cassation only once, at which point the court will rule on the merits of the case. This not only cancels one stage of the litigation process, but exacerbates the danger posed by the excessive application of the death penalty in the draft law, for it means that death sentences could be swiftly carried out without an exhaustive consideration of the merits of the case.
Circumventing the constitution and applying emergency law without declaring a state of emergency
Undermining the rule of law, Article 54 permits the president to declare a state of emergency under another name (the dangers of terrorist crimes or environmental disasters) for no more than six months, renewable with the approval of a parliamentary majority. These measures can be maintained indefinitely, as when the emergency law was upheld and renewed for more than 30 years.
The undersigned organizations reject infringements of the rule of law and the constitution through the use of circumlocutions to declare a state of emergency in a way that sidesteps the constitution. The intention to circumvent the constitution is clear in Article 51 of the draft law, which gives the president the power to issue a decree for the necessary measures to maintain public security and order, including the evacuation or isolation of specific areas or curfews in them. The next paragraph permits such measures to be taken pursuant to oral orders, provided they are supported in writing within eight days—provisions taken verbatim from the last paragraph of Article 3 of the emergency law.
These provisions violate Article 154 of the constitution, which permits the president to declare a state of emergency for no more than three months after the approval of a majority of parliament and allows only one extension. In contrast, Article 51 of the draft law permits the declaration of what is a state of emergency in disguise, that is, a state of emergency in everything but name, for six months, renewable indefinitely. The constitution does not give the president the authority to take these exceptional measures, which, were they intended, would have been explicitly stated. A statutory law, therefore, cannot violate the highest law by instituting these exceptional prerogatives.
Further cementing exceptional measures, Article 38 of the draft law provides for quasi-arrest orders. It gives police officials the right to hold a person in custody—but this is not considered a legal arrest—for no more than 24 hours; the holding period may be extended to seven days by order of the investigating authority. This gives exceptional powers to the Public Prosecution, which lawfully does not have the right to detain a suspect for more than four days. Moreover, it departs from the general rule that allows a suspect to be held for questioning for 24 hours, set forth in Article 36, paragraph 2 of the Code of Criminal Procedure, extending it to 48 hours without grounds or proof.
To conclude, the undersigned organizations affirm their complete rejection of the violent extremism and crimes committed by extremist groups, which constitute a grave assault on the right to life, personal security, and other rights enshrined in the constitution and international conventions. Nevertheless, we fear that the state’s strategy for countering violent extremism is only exacerbating it and relies on blocking legitimate outlets for the expression of opinion. The state should stop to consider its ongoing failure to stop terrorist attacks and, in many cases, identify their perpetrators. More than 30 years of emergency law and 23 years of Law 97/1992 on countering terrorism have not eliminated violent extremism. In fact, it has increased.
Our rejection of the proposed law is based on our interest in preserving the foundations of the rule of law and supporting the state in its confrontation with violent extremism. But the state refuses to hear any ideas or proposals except those that encourage the suppression of everyone, including forces that reject extremism. The current administration does not wish to learn from past mistakes, preferring easy solutions that will not protect Egypt from extremism or foster its stability. One of these solutions is the issuance of flawed, draconian legislation that only manages to close down the public sphere to independent, rational voices that hold opinions at odds with prevailing political trends in Egypt. In fact, such legislation only increases the incompetence of the security apparatus, which has readily used these laws to throw numerous innocent people in prison for long periods, leaving the field open for extremist organizations to commit more crimes.
1. Cairo Institute for Human Rights Studies
2. National group for human rights and law
3. The Human Right Association for the Assistance of the Prisoners
4. The Egyptian Initiative for Personal Rights
5. The Human Rights Legal Assistance Group
6. The Human Rights Legal Assistance Group
7. Alhaqanya Center for Law and Legal profession
8. The Egyptian Center for Public Policy Studies
9. The Egyptian Center for Economic and Social Rights
10. El-Nadeem Centre for the rehabilitation of victims of violence and torture
11. Andalus Institute for Tolerance and Anti-Violence Studies
12. Hesham Mobarak Law Center
13. Egyptian Commission for rights and freedoms
14. Arab Penal Reform Organization
15. The New Woman Foundation
16. Association for Freedom of Thought and Expression
17. Center for Egyptian Women’s Legal Assistance
Note:1-See Karima Kamal, “Rationality is Requested,” al-Masry al-Youm online, July 1, 2015; Abdullah al-Sennawi, “The Sixth War in Sinai,” al-Shorouk online, July 3, 2015; Amr al-Shobaky, “Democracy and Terrorism,” al-Masry al-Youm online, July 4, 2015; Ibrahim Awad “The State and Terrorism,” al-Shorouk online, July 5, 2015; Fahmy Howeidy, “Three Observations,” Shorouk online, July 5, 2015, Khaled ElBalshey, New Counterterrorism Bill Confiscates Press Freedoms, ElBedaya online, July 5, 2015