On 14 April 2014, the Cairo Institute for Human Rights Studies (CIHRS) sent a letter to Egypt's president attaching a 28-page memorandum containing a detailed legal commentary on the most significant provisions of two counterterrorism bills drafted by the government: the draft law amending some provisions of the Penal Code and the draft law on procedural provisions for counterterrorism and international judicial cooperation.
CIHRS also sent a copy of the memo to the prime minister, after the president referred the two bills back to the cabinet for a public debate. The cabinet has previously approved the two drafts laws and referred them to the president on 3 April for adoption.
In the letter, CIHRS urged President Adly Mansour not to adopt the two bills because they constitute the most flagrant legislative assault on public freedoms and human rights initiated by the security apparatus in 37 years and would utterly undermine what limited rights and freedoms do exist in Egypt. Moreover, these two bills represent a gross breach of the constitution and a flagrant violation of rulings of the Supreme Constitutional Court (SCC), including some issued when the president was sitting in court.
The bills represent a serious breach of the rights and liberties of Egyptian citizens and a blatant infringement of Egypt's international obligations. At the same time, they will do little to strengthen counterterrorism efforts.
CIHRS reiterates the need to engage in a fundamental reconsideration of all relevant visions, policies, practices, and legislation adopted since 3 July 2013, some of which have contributed to the abject failure to suppress terrorism and observe human rights.
The police state and terrorism cannot be viewed as unrelated issues. The proposed counterterrorism laws are further proof of their intertwined nature, as previously noted by 15 rights groups, among them CIHRS, in joint position paper on the bills issued on 5 April 2014.
"The framers of the bill, the Ministries of Justice and Interior, consider the freedom of expression of Egyptian citizens as much of a threat as explosive belts and car bombs."
CIHRS sees the two proposed laws as the most serious assault on civil liberties in Egypt since 1977, when late President Anwar al-Sadat launched a similar attack on human rights two weeks after the 1977 uprising through the creation of repressive legislations. Sadat's actions succeeded in shutting down the public sphere and suppressing civil liberties. By doing so, Sadat contributed to an increase in terrorism that continued for the next two decades, and which eventually claimed his own life. Egypt continues to pay the price for these repressive policies to this day.
CIHRS noted in the legal memo that the law amending the Penal Code adopts an overly broad definition of terrorism that violates the most basic rules of penal legitimacy upheld by the SCC, which dictate that penal clauses be clear and specific in their intent. The bill also institutes sanctions for the mere intent of criminal agreement in terrorist crimes, which revives Article 48 of the Penal Code. That article was ruled unconstitutional by the SCC when interim President Mansour was a justice in court. The bill also institutes numerous restrictions on freedom of opinion and expression and oversight of web content, meaning that citizens who exercise these rights risk long prison sentences.
In his letter to the president, the director of CIHRS pointed out that under Article 86 the new counterterrorism law, this very memo and letter to the president could easily be classified as proof of a terrorist crime punishable by death. As this article prescribes a death sentence for any person who establishes, founds, organizes, or administers an association, body, organization, or group whose purpose is “advocating by any means the obstruction of provisions of the constitution or laws.” The counterterrorism bill thus deems the director of an advocacy organization or the president of a political party peacefully demanding a change to the constitution or any law as much of a danger as the leader of al-Qaeda and prescribes the same penalty—death—for all. The framers of the bill, the Ministries of Justice and Interior, consider the freedom of expression of Egyptian citizens as much of a threat as explosive belts and car bombs.
CIHRS emphasizes that the draft law on counterterrorism in essence legalizes a permanent, covert state of emergency, in violation of the constitution and in betrayal of the Egyptian public's trust. The constitution places restrictions on the declaration of a state of emergency in Article 154, requiring the approval of a majority of members of the House of Representatives for a declaration and a two-thirds majority for an extension of a maximum of three months.
The counterterrorism bill thus deems the director of an advocacy organization or the president of a political party peacefully demanding a change to the constitution or any law as much of a danger as the leader of al-Qaeda and prescribes the same penalty—death—for all.
In contrast, the bill allows the president to take some counterterrorism measures—nearly identical to those named in the current emergency law (Law 162/1958)—without a special majority, but rather by a simple majority of parliamentarians present. The article also does not comply with the duration of the emergency set by the constitution and allows the emergency to be renewed indefinitely without requiring the approval of a special majority.
In a flagrant violation of Article 54 of the constitution, which requires arrestees to be referred to the investigating authorities within 24 hours of arrest, the bill gives security personnel the ability to hold terror suspects for 72 hours before bringing them before the investigating authority. This period may be extended by another week, meaning that suspects can be detained for ten days before appearing before the prosecution.
The bill is in direct contradiction with the recommendation issued by the UN expert on the promotion and protection of human rights and fundamental freedoms while countering terrorism in his report following an official visit to Egypt in 2009. In this report the UN expert stressed the need to adopt a strict definition of terrorism and cautioned against any counterterrorism law that would entrench a permanent state of emergency.
Finally, CIHRS urged the president to protect the constitution from repeated attempts at circumvention by the security and intelligence branches of government, and to defend established constitutional principles, not only in his capacity as the president, but in recognition of his past position as the chief justice of the highest court in Egypt, the SCC. In this respect the president is required to defend constitutional rulings that he himself helped to craft and uphold the principle of penal legitimacy and respect for human rights.
The first predation against the constitution came with the issuance of the demonstration law, which flagrantly violated the constitutional declaration issued on 8 July 2014, in force at the time the law was issued, as well as the text approved at the time by the Rights and Freedoms Committee of the 50-member commission tasked with drafting the 2014 constitution.
Amr Mousa, the president of the constituent 50-member commission, and the commission's members bear the moral responsibility to protect the constitution that they drafted on behalf of the Egyptian people. Their continued silence may be interpreted as tacit approval of the repeated breach of the constitution, just as their previous silence constituted tacit approval for the violent security assault on those who demonstrated in front of their headquarters, the sexual harassment of women at the demonstration, the trumped-up charges against some demonstrators, their referral to unfair trials, and the unjust sentences some demonstrators were given. The real crime for which these young people were imprisoned is the exercise of their right to express their opinions and contribute to the debate of the 50-member commission drafting a constitution that regulates the rights and liberties of Egyptians.
The continued silence of the president and members of the commission in the face of successive breaches of the constitution in the last five months makes them morally complicit in the undermining of the liberties and rights of Egyptian citizens, and only encourages further assaults on civil liberties, human rights, and even to the flawed rights protected within the current Egyptian Constitution.
To read the letter which was sent to the president, see the following link: http://www.cihrs.org/A-Mansour-memo-on-terrorism-laws.pdf
To read the legal memorandum regarding the two bills, in Arabic, see the following link: http://www.cihrs.org/?attachment_id=8533