Two counterterrorism bills will intensify terrorist crimes and entrench an undeclared permanent state of emergency

In Statements and Position Papers by CIHRS

imageThe undersigned rights organizations categorically reject the two counterterrorism bills[1] approved by the Cabinet and referred to the president’s office to be issued after the Department of Legislation of the State Council submitted its observations to the government yesterday evening. We were able to obtain a copy of the two bills on March 20, prior to their referral to the State Council; one of these bills, which would amend several provisions of the penal code, was also published on news websites on Thursday, April 3, 2014. We demand that the interim president not issue these bills due to their flagrant violation of the constitution and international human rights treaties ratified by the Egyptian government. The bill codifies a permanent state of emergency and promises to exacerbate failing counterterrorism efforts. As long as the Egyptian government resorts to breaches of the law – including through the use of torture, extrajudicial killings, and the imposition of the death penalty against defendants en masse – it will not be able to put an end to terrorist operations. Rather, such breaches of the law will only result in the Egyptian state being responsible for a horrifying record of human rights violations.

The undersigned organizations believe that issuing laws that contravene the constitution and legalize repressive practices is not the way to counter terrorism. We again caution that setting aside the rule of law and favoring repressive security approaches that grossly violate human rights and public liberties will only further stoke violence and terrorism. We therefore appeal to interim President Adli Mansour to immediately withdraw the two bills which were approved by the government, as these bills represent an affront to the constitution and to the will of the Egyptian people who voted in the constitutional referendum. We further call on the interim president to undertake an investigation into the serious shortcomings of the security apparatus. One of these bills would amend certain provisions of the Penal Code, while the other introduces procedures for counterterrorism and international judicial cooperation. These two bills were previously part of one bill drafted by the Interior Ministry, which, as we noted in November 2013, represented a grave development that heralded the reconstitution of the pre-January 25 police state; we warned at that time that this bill would only intensify violence and terrorism.

We fully understand that the state has a responsibility to confront acts of terrorism as criminalized by Egyptian law and international human rights law. We, too, have profound concerns about the rising tenor and expanding geographic scope of political violence over the last few months, and we consistently condemn these criminal acts and emphasize the need to apprehend those involved and refer them to court to receive the appropriate penalty for their crimes through a fair trial. Nevertheless, we note that the policies and practices that are being pursued in the name of “counterterrorism” will directly fuel terrorist activity as long as such policies and practices continue to undermine the constitution, the rule of law, and human rights standards, which must be observed even in the framework of counterterrorism efforts.

It is unfortunate that these two counterterrorism bills have again been put forward following amendments made to them by the Ministry of Justice that sweep away virtually all constitutional guarantees for rights and public liberties and that manipulate and circumvent the requirements stipulated in the 2014 constitution for an exceptional state of emergency to be declared. These bills thus pave the way for the revival and extension of exceptional emergency procedures without a state of emergency being officially declared.

The 2014 constitution represents a notable step forward in the area of rights of liberties, particularly due to its affirmation of the rights of the accused at all stages of investigation and the recognition in Article 237 that the state is committed to countering terrorism while upholding rights and liberties. Nevertheless, the crafters of the two counterterrorism bills have disregarded these guarantees and drafted the bills to follow the philosophy of Article 179 of the 1971 constitution, as amended in 2007, which gave the state free rein to combat terrorism without regard for numerous rights and liberties upheld by the constitution. Indeed, this article was one of the reasons for which Egyptians took to the streets in protest on January 25, 2011.

In addition to infringing the constitution, the bills fly in the face of the valuable recommendations made to the Egyptian government by the UN special rapporteur on counterterrorism and human rights in a report published after an official visit to Egypt in 2009, in which he stressed the need to strictly define terrorism and avoid tailoring counterterrorism laws to indirectly impose a permanent state of emergency.

In proposing these two bills, the government is seeking to cover up its blatant failure to confront terrorist attacks, which even targeted one of the most important security facilities in Egypt (the Cairo security directorate) and more recently the environs of Cairo University, resulting in casualties among civilians as well as security leaders. As we have noted numerous times, this crisis is not due to the lack of sufficient legislation, but to the inability of the security apparatus to protect even its own headquarters, let alone citizens’ lives. Because of its constant recourse to facile repressive measures, many lives have been lost and innocent people have been imprisoned and tortured, even as the real perpetrators elude security forces and continue their criminal operations.

The undersigned organizations realize that some Islamist groups espousing terrorism have plunged headlong into violence and sought to intimidate the political opponents of the Muslim Brotherhood regime. Nevertheless, it cannot be denied that the spike in political violence and criminal acts of terrorism has coincided with the excessive and often lethal force used and the extrajudicial killings committed during the dispersal of the sit-ins at Rabaa and al-Nahda Squares and at later protests held by Muslim Brotherhood supporters and others, the far-reaching campaigns of arbitrary arrest, and the widespread use of pretrial detention, not as a legitimate legal tool necessary for the investigation of certain cases, but as an extralegal measure aimed at imprisoning thousands of people without serious evidence of their involvement in criminal acts. In addition, abuse of detainees has increased and detainees are routinely denied their legal rights, while the law is deployed to block all outlets for peaceful expression, not only for Brotherhood supporters, but for anti-Brotherhood activists and politicians as well.

Based on a review of these two bills, we note:

1. The bills disregard the numerous criticisms repeatedly made by Egyptian and international rights organizations regarding the imprecise definition of terrorist actions and crimes, which allows the law to be used to suppress political opponents, undermine freedom of opinion and expression, and harass human rights defenders and civil society organizations. The bills further rely on exceptional measures and codify such measures in ordinary statutory law.

Despite the fact that Article 86 of the existing Penal Code defines terrorism expansively – which was a source of concern noted by the UN special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, who voiced his concerns in a report following an official visit to Egypt in 2009 – the first bill would amend this article to further expand the scope of actions considered to be terrorism, stretching the definition to allow the provisions of the law to be applied against crimes or even legitimate acts through imprecise terms such as “infringement of the public order,” “harm to national unity,” and “harm to communications and information systems.” The bill’s amendments would also criminalize any unspecified “behavior” undertaken with intent to achieve a “terrorist purpose” as well as “obstruction of the implementation of any provision in the constitution, laws, or regulations” (amendments to Article 86 of the Penal Code). This phrasing would allow for the targeting of political groups, political and social protest movements, and civil society organizations, even if their conduct is peaceful. For example, the government may deem a demonstration by political forces against the law on elections and the exercise of political rights to be obstructing the provisions of the law.

2. The desire to suppress peaceful political opposition and human rights organizations under the name of “counterterrorism” is made especially clear in the bill’s amendments to Article 86(bis)(a) of the Penal Code, which would permit the death penalty or life imprisonment to be imposed for “establishing or directing an association, body, organization, group, or gang” – without a terrorist crime having been committed. The bill thus imposes the death penalty based on intent, rather than committed crimes. It further imposes the penalty of life imprisonment for all who establish or direct any form of organization “whose purpose is to advocate, by any means, the suspension of provisions of the constitution and laws, the prevention of a state institution from operating, or harm to national unity or social peace”. Such phrasing would thus permit the punishment of persons or organizations that advocate constitutional or legal reform, even peacefully, as well as those that work peacefully to combat religious discrimination or protect minority rights.

At the same time, the bill’s amendments empty constitutional protections for freedom of opinion and expression and a free media of any real meaning. Article 86(bis)(a) of the amended Penal Code would allow prison terms of up to ten years for any person who promotes, in speech, writing, or other form, actions criminalized by the article.

The bill’s proposed form for Article 98(b)(bis) of the Penal Code would allow a prison term of at least seven years for any person who “promotes any form of terrorism, whether directly or indirectly, by any method of broadcast, publication, medium, website, or any means of public dissemination.” This same penalty applies to the promotion of ideas or beliefs that are deemed to be advocating the use of violence, as well as to any person who possesses writings, publications, or printed matter that contain such material.

In addition, the proposed amendment of Article 92(bis)(a) of the Penal Code would provide for at least five years imprisonment for any person who establishes a website with the purpose of disseminating ideas or beliefs that could be categorized as advocating terrorism. The same penalty applies to any person who disseminates materials likely to “influence the course of justice in terrorism crimes.” The article would also permit the investigating authorities to suspend the website or block its content.

3. The desire to adopt imprecise definitions of terrorism and to expand the scope of criminalization to acts that do not necessarily constitute terrorism puts the law, in both its penal and procedural aspects, outside the framework of the rules of criminal legitimacy. This is further exacerbated by the disproportionate nature of the sanctions prescribed for criminalized acts. This is clearly demonstrated in Article 88(bis)(c), which carries the same penalty for attempted felonies and misdemeanors considered to be “terrorist crimes” as for completed crimes.

Even as the international community is moving toward eliminating the death penalty, or at least limiting capital crimes in national legislation, the drafters of this bill have allowed for the death penalty in ten cases under the proposed amendments to the Penal Code. In several cases, the death penalty applies even if the action did not lead to any deaths. The proposed amendments draw no distinction in sanctions between acts that intend to kill or to claim the greatest possible number of lives and those which might unintentionally claim casualties.

4. Article 15 of the second bill on “procedural provisions for counterterrorism and international judicial cooperation” gives the president or his surrogate exceptional license to confront the threat of terrorism – or even natural or environmental disasters – by “taking appropriate measures” to preserve security, order, and calm, including measures for arrest, search, detention, the evacuation or isolation of certain areas, or the imposition of a curfew, stipulating that such measures must be put to the House of Representatives within 15 days. Notably, this article allows for the imposition of these exceptional measures with fewer restrictions than required by the 2014 constitution for the declaration of a state of emergency. While Article 154 of the 2014 constitution requires the opinion of the Cabinet to be taken for a state of emergency to be declared and for the declaration to be put to the House of Representatives within one week for adoption by a majority of all MPs, Article 15 of the bill allows the aforementioned exceptional measures to be approved by a majority of MPs present in the session. While Article 154 of the constitution states that the duration of the state of emergency cannot exceed three months and may only be renewed once by a vote of two-thirds of House members, Article 15 of the bill does not restrict the duration of the exceptional measures and allows them to be extended more than once by a simple majority of MPs present in the House of Representatives. More gravely, the same article gives the president the right in urgent cases to take any of these measures by oral decree, to be confirmed in writing within eight days. Since the decrees are not declared in writing, it would be difficult to legally challenge them and to determine the date they were issued orally.

The undersigned organizations warn that if this article is retained in the final law, it is likely to return the country to an exceptional state of emergency, whose catastrophic effects were born by Egyptians for three decades under Mubarak. This time, however, the exceptional state of emergency will be covertly instituted without need for an official declaration, as required by the constitution and the International Covenant on Civil and Political Rights, to which Egypt is a party.

The undersigned organizations stress that the decisive measures needed to counter the evils of terrorism should aim first and foremost to protect the human rights and public liberties of all citizens. To the contrary, however, both the first bill amending certain provisions of the Penal Code and the second bill on counterterrorism procedures flagrantly breach these rights and liberties, thereby contravening not only Egypt’s international commitments, enshrined in numerous human rights conventions ratified by the state, but also provisions of the 2014 constitution, which overall protects these rights and liberties.

5. The provisions of the two bills undermine standards of equality before the law, guarantees for freedom and personal safety, and guarantees for a fair trial. Provisions in the bills deprive persons accused in terrorist cases of the legal and procedural guarantees the law grants to other accused persons, in particular:

  1. In contravention of Article 54 of the 2014 constitution, which requires the authorities to refer any detainee to the investigating authority within 24 hours of detention, Article 2 of the bill on procedures for counterterrorism and international judicial cooperation allows the security apparatus to arrest defendants in terrorism cases and hold them for 72 hours, which may be extended an additional week with the permission of the investigating authorities. Defendants may therefore remain in police custody for at least ten days, making them vulnerable to various forms of pressure, including torture to solicit a confession, before they are referred to the investigating body.
  2. Under Article 5 of the bill on counterterrorism procedures, the prosecution investigating terrorist crimes is vested with the authorities and prerogatives of the investigating judge and the authorities of the appellate misdemeanor court convened in chambers. It may extend the pretrial detention of defendants in terrorism cases for successive periods, up to double the maximum period of pretrial detention for defendants in ordinary cases in the initial investigating phase and the criminal suit phase. This means that persons accused in terrorism cases are subject to exceptional procedural rules from the time of their detention, in contravention of the principle of equality before the law, which is enshrined in the constitution, as well as constitutional guarantees for individual freedom and ordinary procedural rules prescribed in the Code of Criminal Procedure for other detainees and accused persons.
  3. Article 10 of the bill on counterterrorism procedure designates particular circuits in felony, summary, and first-instance courts to hear terrorism cases, related crimes, and appeals. This may allow the executive authority, represented by the Ministry of Justice, to interfere in the course of justice, and it raises doubts about the neutrality of judges and the fairness of trials. These fears are exacerbated by the lack of a clear, precise definition of terrorist crimes and acts, which may give broad discretionary authority to judges, leading to divergent judgments for the same acts, which in turn undermines the credibility of court rulings.
  4. Showing further contempt for equality before the law, the bill amending certain provisions of the Penal Code denies courts hearing terrorism cases the ability to reduce the sentence at the judge’s discretion. Article 88(bis)(b) of this bill states that sentence reduction in terrorist crimes only applies to capital crimes, in which case the sentence may be reduced to life imprisonment. The bill also singles out those convicted in terrorist cases for supplementary sanctions in the form of precautionary measures, such as banning residence in certain areas, prohibiting the convict from frequenting certain places, and barring the convict from certain jobs or activities. These measures may be extended for five years; if the convicted person violates them, he is subject to at least six months imprisonment.
  5. It may seem reasonable that as part of the effort to track funding sources for groups and organizations involved in terrorism, the bill’s proposed amendments to Article 88(bis)(b) of the Penal Code would allow the court to order the confiscation of funds or the profits of the crime, or confiscate property equivalent to these funds and yields if they have been converted, partially or wholly substituted for, or combined with other legally acquired property. Shockingly however, this article sets the country back centuries and defies all logic and rules of the modern state by establishing the principle of the distribution of spoils. The article states that the competent minister to which the body that made the seizure is subordinate may order the convicted person’s property confiscated for that body, when he believes it is necessary for it to pursue its activities in countering terrorism and related crimes.

The undersigned human rights organizations therefore declare our categorical rejection of the two counterterrorism bills and warn that their adoption will only create more fertile ground for the spread of extremism, incitement to violence, and calls for revenge and retaliation.

We reiterate that acts of violence and terrorism will only recede when the rule of law and human rights standards are respected, constitutional guarantees for public liberties are secured instead of trampled underfoot, and impunity is ended for the crimes and gross human rights abuses that have proliferated in the past nine months.

The signatories:
  1. Cairo Institute for Human Rights Studies
  2. Andalus Institute for Tolerance and Anti-Violence Studies
  3. Arab Network for Human Rights Information
  4. Arab Penal Reform Organization
  5. Association for Freedom of Expression and of Thought
  6. Center for Egyptian Women’s Legal Assistance
  7. Misryon Against Religious Discrimination
  8. National group for human rights and law
  9. Nazra for Feminist Studies
  10. The Egyptian Coalition for the Rights of the Child
  11. The Egyptian Foundation for the Advancement of Childhood Conditions
  12. The Hesham Mobarak Law Center
  13. The Human Right Association for the Assistance of the Prisoners
  14. The Land Center for Human Rights
  15. The New Woman Foundation

[1] The undersigned organizations reviewed the two bills after the Cabinet approved them in principle and referred them to the State Council to issue its legal opinion on March 20, 2014. The organizations later reviewed the amendments made to the bill to amend certain provisions of the penal code, which was published in several newspapers. Due to the lack of transparency surrounding the drafting process, particularly for legislation of such magnitude, the organizations were unable to review the final version of the second bill on procedural provisions for counterterrorism and international judicial cooperation.

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