The treachery law: a return to the ways of the former regime Toward democratizing the system of legal accountability for members of the former regime to guarantee victims’ rights - Cairo Institute for Human Rights Studies (CIHRS)

The Cairo Institute for Human Rights Studies (CIHRS) has followed the debate regarding holding former regime figures accountable for the crimes they committed or caused to be committed against the Egyptian people. Consequently the Cabinet ultimately revived Law 344/1952 on the crime of treachery, revised by Law 173/1953. It is an exceptional law, which was issued after the revolution of July 23, 1952, to isolate the pre-revolutionary political leadership from government and political positions and deny them the exercise of their political rights for up to five years. While CIHRS stresses the importance of prosecuting and punishing former regime figures and their aides, and indeed believes that former regime figure proven to have been involved in crimes of financial, administrative, or political corruption should by denied the right to run in any elections—parliamentary, presidential, or local—for a set period of time. Yet, for this to be achieved in a democratic framework requires a set of rules that must be honored when making such decisions. Although the changes introduced to the treachery law by the Cabinet have partially improved it , the law remains to have several flaws and shortcomings. The amendments are simply an attempt to improve one of the many disreputable laws used by the former regime to oppress its opponents. Thus, CIHRS believes that the law, even after the Cabinet’s amendments, is far from an ideal application of transitional justice. Additionally, it is seen to directly violate established legal norms honored in most nations around the world. From a legal perspective, the treachery law violates legal principles governing punitive rules. In defining those persons subject to the provisions of the law, Article 1 of the treachery law is expansive, noting that “any person, whether public employee, minister, or otherwise…is considered to have committed the crime of treachery…” This formulation lends itself to being used as a tool to eliminate political opponents or activists, particularly since the punishable actions are formulated in extremely broad, unspecific terms. As Article 1 notes, these acts include “taking action liable to corrupt governance or political life by harming the country’s interest, cooperating with it, or violating the law” (paragraph “a”), while paragraph “f” of the same article defines the acts as“harmful interference in the public interest.” All of the crimes enumerated in Article 1 are vague, ambiguous, and expand the scope of criminality, in violation of Penal Code rules that dictate that a criminal action be defined clearly, specifically, and in unequivocal language. Additionally, there is no need to stipulate the penalties enumerated in Article 2 of the law (in paragraphs b, c and e), since all of these penalties are found in other laws or can be applied as secondary penalties if the original charges are proved, such as the revocation of membership in the People’s Assembly, Shura Council, or local councils, or five-year bans on candidacy declaration or political party membership. Other penalties could be applied as administrative decrees issued by the Prime Minister, such as the penalty in Article 2, paragraph a a, dictating dismissal from senior public positions. The debate over how to deal with former regime figures and their political and ordinary crimes, in addition to crimes of financial and political corruption, has become a defining feature of the transitional period. Some argue that the government should strive to seek justice and simply prosecute former regime figures, while others, including CIHRS, believe that justice entails fairness, a disclosure of the truth, and punishment for all those involved in any crimes that corrupted the public sphere in Egypt. On the other hand others believe that a general amnesty is the preferable course and the means to rebuilding the state, arguing that the new regime must let go of the past and focus on the future. The last argument is the only one that is inimical to human rights values and principles, as it further entrenches the culture of impunity established by the Mubarak regime as an article of faith, enabling those who rule Egypt and its future to act without oversight or accountability. Due tothe vagueness of the provisions of the treachery law, we fear that it may be used not only against many who corrupted governance or political life, but also against persons and leaders who long opposed the former regime and suffered under its thumb. The definition of the crime, its elaboration, and the people to whom it may legally apply will all be determined by those who hold power, and they may use it in the future to rid themselves of their political opponents . In terms of how well the treachery law achieves justice, we must realize that transitional justice is not solely limited to the prosecution and punishment of perpetrators of human rights crimes. This is but one part of a set of lengthy measures. It should be preceded by the formation of a judicial commission with full financial and administrative independence from the Justice Ministry or any executive authority, to accept complaints of ordinary, political, or economic crimes committed by members of the former regime, investigate them based on principles of the Egyptian Penal Code and international law, and levy appropriate penalties on those persons responsible for these violations. Realizing Justice and fair trials that satisfy the victims of abuses of the former regime also require legislative and judicial measures aimed at protecting victims, their families, and witnesses from any harassment or abuse they may face as a result of testimonies incriminating former regime figures. Another extremely significant step in the program of transitional justice is the disclosure of the truth, to prevent a repeat of these crimes in the future. This can only happen by making information about past crimes and those involved in them public, enabling by all means the victims and their representatives to know the circumstances and reasons behind the harm that was inflicted upon them. A plan must also be formulated to provide justice and damages for the victims through offering legal, medical, psychological, and social services to them. Compensation and damages for harm serve three basic functions: first of all, they help the victim overcome the material aspect of their loss. Secondly, they constitute an official recognition by the state of the harm done, and thirdly, they deter later governments from committing the same crime, by imposing costly financial burdens on the perpetrators of the crime. The Egyptian government must remember that those who took to the streets in pursuit of freedom on January 25 seek a democratic society in which citizens exercise freedom and enjoy full human dignity. As such, the current government can only cling to the new democratic principles which features were drawn by revolutionaries throughout Egypt’s public squares. CIHRS believes that the most important goal of transitional justice is making a clean break with the past and ensuring it will not be repeated in the future. This cannot be done by forgetting the past, but by firmly establishing new democratic instruments that represent a decisive break with the most critical method long used by the former regime to oppress its enemies—exceptional laws, of which the treachery law is one. Exceptional laws are those set of laws that contain extraordinary rules devised only to deal with particular situations or persons, thus violating all local and international legal customs. Justice will only be achieved if there is sufficient political will to make a clean break with the past, hold those responsible for violating Egyptians’ rights to account, and compensate the victims of these abuses. This can be realized in numerous ways, but disreputable exceptional laws are not one of them. Certainly a wide ranging program of transitional justice that involves trials, fact-finding commissions, and compensation and rehabilitation is a costly process in the short term. But failing to address these issues in a rational, democratic, and comprehensive way will be much more costly for the state and citizens in the long term.

The Cairo Institute for Human Rights Studies (CIHRS) has followed the debate regarding holding former regime figures accountable for the crimes they committed or caused to be committed against the Egyptian people. Consequently the Cabinet ultimately revived Law 344/1952 on the crime of treachery, revised by Law 173/1953. It is an exceptional law, which was issued after the revolution of July 23, 1952, to isolate the pre-revolutionary political leadership from government and political positions and deny them the exercise of their political rights for up to five years.

While CIHRS stresses the importance of prosecuting and punishing former regime figures and their aides, and indeed believes that former regime figure proven to have been involved in crimes of financial, administrative, or political corruption should by denied the right to run in any elections—parliamentary, presidential, or local—for a set period of time. Yet, for this to be achieved in a democratic framework requires a set of rules that must be honored when making such decisions.

Although the changes introduced to the treachery law by the Cabinet have partially improved it , the law remains to have several flaws and shortcomings. The amendments are simply an attempt to improve one of the many disreputable laws used by the former regime to oppress its opponents. Thus, CIHRS believes that the law, even after the Cabinet’s amendments, is far from an ideal application of transitional justice. Additionally, it is seen to directly violate established legal norms honored in most nations around the world.

From a legal perspective, the treachery law violates legal principles governing punitive rules. In defining those persons subject to the provisions of the law, Article 1 of the treachery law is expansive, noting that “any person, whether public employee, minister, or otherwise…is considered to have committed the crime of treachery…” This formulation lends itself to being used as a tool to eliminate political opponents or activists, particularly since the punishable actions are formulated in extremely broad, unspecific terms. As Article 1 notes, these acts include “taking action liable to corrupt governance or political life by harming the country’s interest, cooperating with it, or violating the law” (paragraph “a”), while paragraph “f” of the same article defines the acts as“harmful interference in the public interest.”

All of the crimes enumerated in Article 1 are vague, ambiguous, and expand the scope of criminality, in violation of Penal Code rules that dictate that a criminal action be defined clearly, specifically, and in unequivocal language.

Additionally, there is no need to stipulate the penalties enumerated in Article 2 of the law (in paragraphs b, c and e), since all of these penalties are found in other laws or can be applied as secondary penalties if the original charges are proved, such as the revocation of membership in the People’s Assembly, Shura Council, or local councils, or five-year bans on candidacy declaration or political party membership.

Other penalties could be applied as administrative decrees issued by the Prime Minister, such as the penalty in Article 2, paragraph a a, dictating dismissal from senior public positions.

The debate over how to deal with former regime figures and their political and ordinary crimes, in addition to crimes of financial and political corruption, has become a defining feature of the transitional period. Some argue that the government should strive to seek justice and simply prosecute former regime figures, while others, including CIHRS, believe that justice entails fairness, a disclosure of the truth, and punishment for all those involved in any crimes that corrupted the public sphere in Egypt. On the other hand others believe that a general amnesty is the preferable course and the means to rebuilding the state, arguing that the new regime must let go of the past and focus on the future. The last argument is the only one that is inimical to human rights values and principles, as it further entrenches the culture of impunity established by the Mubarak regime as an article of faith, enabling those who rule Egypt and its future to act without oversight or accountability.

Due tothe vagueness of the provisions of the treachery law, we fear that it may be used not only against many who corrupted governance or political life, but also against persons and leaders who long opposed the former regime and suffered under its thumb. The definition of the crime, its elaboration, and the people to whom it may legally apply will all be determined by those who hold power, and they may use it in the future to rid themselves of their political opponents .

In terms of how well the treachery law achieves justice, we must realize that transitional justice is not solely limited to the prosecution and punishment of perpetrators of human rights crimes. This is but one part of a set of lengthy measures. It should be preceded by the formation of a judicial commission with full financial and administrative independence from the Justice Ministry or any executive authority, to accept complaints of ordinary, political, or economic crimes committed by members of the former regime, investigate them based on principles of the Egyptian Penal Code and international law, and levy appropriate penalties on those persons responsible for these violations.

Realizing Justice and fair trials that satisfy the victims of abuses of the former regime also require legislative and judicial measures aimed at protecting victims, their families, and witnesses from any harassment or abuse they may face as a result of testimonies incriminating former regime figures. Another extremely significant step in the program of transitional justice is the disclosure of the truth, to prevent a repeat of these crimes in the future. This can only happen by making information about past crimes and those involved in them public, enabling by all means the victims and their representatives to know the circumstances and reasons behind the harm that was inflicted upon them. A plan must also be formulated to provide justice and damages for the victims through offering legal, medical, psychological, and social services to them.

Compensation and damages for harm serve three basic functions: first of all, they help the victim overcome the material aspect of their loss. Secondly, they constitute an official recognition by the state of the harm done, and thirdly, they deter later governments from committing the same crime, by imposing costly financial burdens on the perpetrators of the crime.

The Egyptian government must remember that those who took to the streets in pursuit of freedom on January 25 seek a democratic society in which citizens exercise freedom and enjoy full human dignity. As such, the current government can only cling to the new democratic principles which features were drawn by revolutionaries throughout Egypt’s public squares.

CIHRS believes that the most important goal of transitional justice is making a clean break with the past and ensuring it will not be repeated in the future. This cannot be done by forgetting the past, but by firmly establishing new democratic instruments that represent a decisive break with the most critical method long used by the former regime to oppress its enemies—exceptional laws, of which the treachery law is one. Exceptional laws are those set of laws that contain extraordinary rules devised only to deal with particular situations or persons, thus violating all local and international legal customs.

Justice will only be achieved if there is sufficient political will to make a clean break with the past, hold those responsible for violating Egyptians’ rights to account, and compensate the victims of these abuses. This can be realized in numerous ways, but disreputable exceptional laws are not one of them. Certainly a wide ranging program of transitional justice that involves trials, fact-finding commissions, and compensation and rehabilitation is a costly process in the short term. But failing to address these issues in a rational, democratic, and comprehensive way will be much more costly for the state and citizens in the long term.