In the wake of last week’s deadly attacks in Sinai and the assassination of Prosecutor General Hesham Barakat, the government has been trying to rush through a new counter-terrorism law that has been heavily criticized for violating human rights standards.
The Cabinet submitted the controversial bill to the State Council and the Supreme Judicial Council (SJC) for review, in accordance with the constitutional provision enabling the government to solicit the opinions of judicial bodies on laws related to the judiciary. Once the State Council signs off on it, the draft will be sent to President Abdel Fattah al-Sisi for final approval.
The proposed law would impose harsher penalties for those convicted of carrying out terrorist attacks, joining terrorist organizations or aiding them with funds, training, equipment or communications. Sentences would range from 10 years in maximum security prisons, to life in prison, to the death penalty.
The Cabinet has been going back and forth with the State Council over the bill for months, but the government was spurred to get the law ratified after a series of deadly attacks coincided with the second anniversary of former President Mohamed Morsi’s ouster last week. Critics fear that if passed, the law would introduce legal precedents that could further endanger an already fragile state of human rights.
One of these provisions includes absolving security forces from legal repercussions for employing violence while enforcing the law. It also allows the prosecution to extend pre-trial detention periods, and authorizes prosecutors to issue orders to tap and record private conversations and messages, as well as to monitor what happens online, on the phone or in private spaces when investigating terrorism-related crimes.
The Supreme Judicial Council objected to some of the bill’s articles in a statement published by the privately owned daily newspaper Al-Shorouk. In particular, the SJC pointed to the stipulation that defendants are not obliged to attend trial sessions if their lawyers are present, which council members described as violating basic guarantees for fair trials.
The SJC also objected to deadlines of 40 days for appealing court verdicts, suggesting a deadline of 60 days instead. The council took further issue with the proposed formation of terrorism courts, which would be similar to economic and family courts, and recommended that constituencies investigating terrorism cases fall under the Appeals Court.
Another major change proposed by the bill is the Court of Cassation’s role in reviewing verdicts issued by a criminal court. According to the current Criminal Procedures Law, the Court of Cassation only looks into the procedural grounds of any verdicts issued by a criminal court. If the Court of Cassation determines that a case should be appealed on procedural grounds, it overturns the verdict and refers the case to another criminal court.
The new law stipulates that the Court of Cassation would not refer the verdict to another criminal court on the second round of litigation, but would look directly into the verdicts instead. The SJC is undecided concerning this precedent. According to the Al-Shorouk statement, the SJC is also deliberating over an article that would only allow convicted defendants one chance to appeal their sentences.
Adel Ramadan, a lawyer at the Egyptian Initiative for Personal Rights (EIPR), told Mada Masr that the bill adds nothing new to existing legislation in terms of the penalties imposed on those convicted of terrorism or the definition of terrorism-related charges — it would only change how such cases would be tried.
He noted that only giving defendants one chance to appeal a guilty verdict does not, in and of itself, conflict with legal norms and international standards.
“It is left generally to be decided by the legislators, and here comes the real problem,” he said, “We don’t have a legitimate legislative authority — we have an executive authority abusing its powers.”
According to the Constitution, the counter-terrorism law should be passed with a two-thirds parliamentary majority and cannot be ratified without a legislative authority.
In regards to the specifics of the bill, shortening the litigation process could be unconstitutional, Ramadan asserted, because it is an obvious intervention into the powers of the judicial authority. He also believes that curtailing the litigation process is at odds with lengthy pre-trial detention periods, which may last as long as two years. A 2013 amendment to the Criminal Procedures Law cancelled all limits on pre-trial detentions.
“The law here intends to give higher powers to the prosecution,” Ramadan explained. “It shortens the trial period, but still keeps a longer pre-trial process, when it should be the reverse.”
Two other provisions in the bill specifically related to the press and social media have also provoked controversy and criticism.
The law would stipulate five-year prison sentences for the propagation or intended propagation of “ideas and beliefs calling for the use of violence” through social media or other outlets. It would also impose two-year prison terms for publishing false information concerning terrorist attacks, or reports that conflict with official statements or narratives. Critics believe this provision is related to the government’s anger that foreign media outlets reported a higher death toll in the recent Sinai attacks than what was reported by the military.
“This article in the law kills the essence of journalism entirely,” Ramadan argued. “It does not impose punishment for spreading false news generally, but for spreading news that could be true but that contradicts the official narrative. It would be easier for the government to just shut down newspapers and issue one paper with official statements.”
For Ramadan, the spirit of the bill is opposed to the principle of deterrence, which laws should be designed to promote.
“The law deals with what happens after the crime is committed, but does not offer solutions on how to prevent it from happening,” he asserted. “Terrorists are not deterred by harsh laws imposing death sentences, because they already commit suicidal acts. We need a terrorism law, but it should be part of a larger state policy.”
This piece has been amended since it was first published.