Since the House of Representatives began deliberating over the new Draft Criminal Procedure Law, we resolved to participate in this historic national undertaking. This action stems from our national and constitutional commitment to engage in public life and participate in public debate that aims to serve national interests, as well as our professional commitment as human rights advocates, lawyers, and academics specialising in human rights and criminal justice.

We therefore convened to research, discuss, critique, and analyse this bill, reviewing it and offering opinions that cover various perspectives and even proposing alternative legal texts. Our benchmark for this undertaking were:

• The Egyptian Constitution, which constitutes the highest authority and overarching reference frame for all laws that provides for rights, duties, and public liberties.

• Established principles within the jurisprudence of the Supreme Constitutional Court and the Court of Cassation, which serve as one of the primary sources for the legislator when enacting new laws.

• The National Human Rights Strategy, which the Egyptian government launched with the mandate of advancing all human rights in Egypt by enhancing the respect and protection of all civil, political, economic, social, and cultural rights enshrined in the Constitution, national legislation, and international and regional conventions ratified by Egypt.

These meetings resulted in a working paper detailing our vision for a just Draft Criminal Procedure Law. We promptly approached the state authorities (the Office of the Presidency, House of Representatives, Presidency of the Council of Ministers) and provided them with a copy of this paper. It contained constructive proposals for redrafting some articles, based on a methodology that prioritised balancing rights and liberties within the criminal justice field. We strove to ensure a delicate equilibrium between preserving individuals' essential rights and personal freedoms and maintaining social stability, public order, and protecting the rights and liberties of others.

We felt great disappointment when this submission was ignored in its entirety. The House of Representatives proceeded to pass the articles of the draft as proposed by the government, approving and submitting it to the Presidency of the Republic for promulgation, despite the very clear and fundamental flaws—in the phrasing and in many instances in obvious constitutional violations—that plagued many articles. These defects were widely criticised by a broad sector of esteemed university professors of Criminal Law, judges, lawyers, and legal researchers and experts specialising in criminal justice.

We saw a glimmer of hope when the President decided to object to some provisions of this draft and return it to the House of Representatives for a second review in light of his objections. This compelled us to appeal to the House of Representatives to exercise prudence and comprehensively reconsider the review of the draft law's articles. We urged the House of Representatives not to suffice itself only with changing the articles the President objected to, based on the principle that the House regained its full jurisdiction over the draft. This would necessitate addressing the flaws that also afflicted the remaining  articles that had not been explicitly objected to.

During this process, we anticipated the House of Representatives would consider the political timing—the current legislative term was nearing its end, negating any sense of necessity or urgency to pass the draft immediately. We believed the review should be left to the incoming Parliament, allowing it to reconsider the draft articles and the President's objections with patience and deliberation, ensuring the final law would be cohesive and consistent with the letter and spirit of the Constitution.

However, we closely monitored the House of Representatives' approach to handling the draft in light of the Presidency’s objections, noting the principle it established: that it was supposedly impermissible to address any article other than those specifically objected to! This contradicts the purpose of constitutional legislation, which contains no provision restricting Parliament's authority to review any text of the draft law returned with specific objections. Nonetheless, the House confined its work to reviewing only the articles included in the statement of the presidency, ignoring other provisions that actually required review in their own right to ensure consistency with the provisions re-drafted after the objection.

After the special committee formed by the House of Representatives finished redrafting some articles of the Draft Criminal Procedure Law in response to the President of the Republic's objections, we reviewed its final report. The proposed re-drafting of several articles, which the House subsequently approved, represents a regression and withdrawal from the bill’s  governing principles, diminishing the value of the right to defence and undermining  individual liberties, protections and guarantees.

Below, we outline our reservations on some of the re-drafted articles approved by the House following the President's requested amendments:

Key Objections to the Re-drafted Articles

Firstly: regarding the wording of article 6 (issuance): This article previously stipulated that the law would come into force the day following its publication. It was re-drafted to state: "It shall be effective from the first of October following its publication date." The Committee claimed this amendment responds to the President's objection.

We believe that this is inaccurate and misses the point. The President's objection to the publication clause was limited to certain articles introducing new administrative and procedural matters (like Article 232, which provided for the establishment of telephone notification centres requiring significant preparation and logistics). It was also intended for new provisions that require preparation and capacity building on part of those who will be tasked with observing or enforcing them, and related actors that need to be informed and prepared for their applications in the judicial circuits, in public prosecution offices as well as in the legal profession and law enforcement. However, outside of those limited number of provisions, everything else can be implemented as soon as enacted. Provisions regulating pre-trial detention periods, which could immediately benefit those who have reached the legal maximum limit, and other new procedures and practices that have not been properly regulated in the previous edition of the law (such as travel bans, appealing against travel bans and procedures for challenging  precautionary measures) – all of which are immediately applicable. The Committee should have confined the application of the objection to the provisions explicitly intended for delayed implementation, instead of broadly interpreting the objection in a way that negates and squanders essential protections  introduced by the new draft.

Secondly: regarding the wording of Article 105 of the draft: This article previously prohibited the questioning of the accused or confronting them with other defendants except in the presence of his lawyer or a state-assigned lawyer, a fundamental safeguard enshrined in Article 54 of the Constitution. However, the special committee added a final paragraph permitting the Public Prosecutor to proceed with the interrogation of the accused if the lawyer was not present at the specified time, in cases where failing to act immediately where the questioning was time-sensitive may be an issue. The special committee’s justification for this modification was that Article 105 was inconsistent with the second clause of Article 64 of the same draft, which allowed enforcement officials to whom certain judicial powers were delegated powers that exceeded the powers of the original mandated power holder (judicial officers). Specifically by granting law enforcement officials (delegated by the prosecutor’s office) the powers to conduct some investigatory work and begin questioning the accused in exceptional cases where there was a necessity. 

Although the House later, when discussing this provision, did not pass it in the wording proposed by the special committee, and ended up restricting  the allowance for interrogation in the absence of a lawyer to cases where the accused's life may be in danger, and only after requesting the assignment of a lawyer, we believe the House fell into a clear contradiction. While it ostensibly corrected the glaring flaw in Article 105, it failed to remedy the corresponding flaw in Article 64 of the same draft. This defect arises from the omission of stipulating that an assigned police officer (with powers of arrest) must summon the accused's lawyer or assign one before commencing questioning in cases where failing to act immediately is a cause for concern. This methodological error—confining the review only to the articles explicitly referenced in the presidency's statement—resulted in inconsistency between Article 64 and Article 105, contravening the intent of the President’s reservations.

Thirdly: regarding the wording of Article 112 of the draft: The objection was raised against the second paragraph's wording, which permitted remanding or depositing the accused in a correctional centre or detention facility until the interrogation is scheduled if the interrogation could not proceed without a lawyer. The re-drafted paragraph stipulates that if interrogation is impossible in a crime where pre-trial detention is permissible, the accused may be remanded or deposited in a correctional centre or detention facility until interrogation in the presence of a lawyer. The detention order, its procedures, duration, extension, and appeal would be subject to the same rules as pre-trial detention.

The Committee's new wording constitutes a serious violation of Article 54 of the Constitution, despite citing it in their justification. It introduces an even newer alternative to pre-trial detention called the (order to deposit or remand the accused). This opens the door for the investigating authority to issue a detention order under the ambiguous pretext of the "impossibility" of interrogation without a lawyer—a subjective assessment left entirely to the investigating authority's discretion. Since the new amendment allows for the extension of this "deposit" using the same procedures as pre-trial detention, the accused could be detained for extended periods of time without ever being interrogated. Crucially, the period spent in remand detention before the accused if questioned in connection with an investigation is not counted toward the maximum limits of pre-trial detention if the authority later decides to formally detain the accused. This represents a clear circumvention of the maximum limits for pre-trial detention and severely undermines the fundamental liberties and rights of the accused.

This is but a  summary of just a few of the most obvious flaws that beset not simply a few provisions of this bill, but the whole legislative policy and methodology that produced  the most important of the laws that supplement the constitution and form the second layer of the state’s legal infrastructure., it is clear that the matter is grave. The gravity of the issue cannot be understated, and the lost opportunity is too rare to be squandered in this manner. The new amendments, strait-jacketed as they ended up being, did not fortify protections for rights and liberties; rather they ended up weakening and actually removing some protections. Those new set of amendments were, at best, deeply disappointing.

We therefore find ourselves obliged to reject and register our concern at these amendments. We appeal to the President of the Republic not to sign this bill into law and to refer it instead to the Senate in its second legislative session, mandating the Senate to prepare a report on the matter pending its return to the House of Representatives for further deliberation to take place in the new session of the third legislative term. This will allow ample timefor a comprehensive re-examination of the draft law's articles - a reexamination that considers the whole text as one body of law,- as well as a review of the myriad objections raised against many of its articles without undue haste. Approving this crucial piece of legislation in a suitable timeframe, without the shadow of  political uncertainty caused by the nearing end of the current parliamentary term, will ensure the new law is issued in a healthy legislative climate that achieves its intended purpose of enhancing respect for human rights and guaranteeing swift, just and equitable criminal justice.

Signatories

• Popular Socialist Alliance Party

• Al-Karama Party

• Bread and Freedom Party

• Egyptian Communist Party

• Labour Secretariat of the Conservative Party

• Helwan Bar Association

• Arab Center for the Study of Law and Society

• Egyptian Center for Economic and Social Rights

• Egyptian Initiative for Personal Rights

• Association for Freedom of Thought and Expression

• Centre for Egyptian Women’s Legal Assistance

• El Haq Foundation for Freedom of Opinion, Expression and Human Rights

• New Woman Foundation

• Tebyan for Rights and Freedoms

• Mizan Initiative for Law

• Themis for Rule of Law

• Hala Douma and Partners Law Office - Freedom of the Legal Profession Law Firm

• Egyptian Commission for Rights and Freedoms

• Egyptian Human Rights Forum

• Egyptian Front for Human Rights

• Egypt Wide for Human Rights

• Regional Center for Rights and Freedoms

•  Defense Law Firm - Khaled Ali

• Cairo Foundation for Development and Law

• Egyptian Observatory for Journalism and Media