Stop Using Mubarak-Era Laws; End Impunity and Unfair Trials
(Cairo) – The latest crisis in Egypt highlights the urgent need for the government to finally begin reforming the security sector and ensuring accountability for past abuses, Human Rights Watch said today while releasing its World Report 2013. Egypt gained its first democratically elected president in 2012, but overall the year was marked by a series of missed opportunities to institute human rights reforms, Human Rights Watch said.
In the past week clashes between the police and protesters in the cities of Port Said, Suez, Ismailia, and Cairo have left at least 52 dead, prompting the president to re-impose the state of emergency in the first three cities. The emergency law, which gives the police broad powers to detain people for up to 30 days without charge, has historically been an invitation for abuse of the basic rights of Egyptians, Human Rights Watch said. The president should repeal the state of emergency and use the regular penal code to prosecute incidents of violence when the evidence warrants it.
“The optimism sparked by the end of interim military rule turned sour in 2012 as the new government challenged the rule of law, used Mubarak-era laws to limit the space for criticism, and reinstated emergency powers,” said Sarah Leah Whitson, Middle East and North Africa director at Human Rights Watch. “Elections are only one measure of a successful transition to democracy. Protecting the rights to free speech, assembly, and association, and insisting on accountability for police abuse, are also critically important.”
In its 665-page report, Human Rights Watch assessed progress on human rights during the past year in more than 90 countries, including an analysis of the aftermath of the Arab uprisings. The willingness of new governments to respect rights will determine whether the Arab uprisings give birth to genuine democracy or simply give way to authoritarianism in new clothes, Human Rights Watch said.
There were no significant structural or legislative rights reforms in 2012. Broadly worded and vague provisions on speech, religion, and the family in the new constitution have dangerous implications for women’s rights and the free exercise of social freedoms protected under international law. Six months after President Mohamed Morsy assumed power, criminal defamation and blasphemy prosecutions are increasing, police torture with impunity remains endemic, and civilians continue to face trials before military courts.
Morsy should take immediate steps to freeze the application of repressive laws handed down from the Mubarak era, Human Rights Watch said, in particular penal code provisions that criminalize free speech, archaic assembly laws, and provisions that severely curtail the activities of independent civil society groups and trade unions on pain of prosecution.
During Morsy’s six months in office, there has been an upsurge in prosecutions of journalists, bloggers, and others on charges of “insulting” officials or institutions and “spreading false information,” using Mubarak-era penal code provisions that punish defamation with imprisonment.
Morsy amended the Press Law in August to abolish pretrial detention of journalists, signaling his awareness of the problem. Yet the presidency has filed criminal defamation suits against at least three journalists on charges of “insulting the president.” An investigative judge appointed by the justice minister has questioned 18 other journalists and at least 3 political activists for publicly criticizing the judiciary for its lack of independence.
“Prosecutors should be investigating complaints of torture of detainees by police and prosecuting the torturers rather than trying to penalize critical speech and imprison journalists,” Whitson said.
In a positive move, one of Morsy’s first actions after assuming office was to appoint a fact-finding committee to investigate all incidents of violence against protesters since the Egyptian uprising began in early 2011. The committee submitted its report at the end of December, but the president has not made its contents public, prompting concern that there will once again be political compromise at the expense of accountability. Meanwhile, his government has taken no steps to reform the security sector, the source of widespread abuses under Hosni Mubarak, or to address the endemic and unremitting police violence against detainees.
The police this week appeared to have used excessive force in responding to sometimes violent demonstrations and riots in Port Said, Human Rights Watch said after its researchers interviewed witnesses to, and participants in, those events. Thirty-seven demonstrators and two police agents died in those clashes. Responding to an armed assault on a prison during the demonstrations, the police used lethal force, fatally shooting several unarmed bystanders. Under international norms, law enforcement agents may use lethal force only when strictly necessary to protect life.
Morsy’s response to violent clashes between opposition critics, and his supporters and members of the Muslim Brotherhood outside the presidential palace in December was also worryingly one-sided, Human Rights Watch said. He failed to acknowledge the overwhelming evidence suggesting his political allies and supporters were active participants in the violence, blaming only the opposition. He also rode roughshod over the presumption of innocence, claiming that people detained in the incident had confessed their guilt, although prosecutors were still questioning them, and, soon after, released them for lack of evidence.
Within weeks of becoming president, Morsy instituted a review of the cases of civilians sentenced by military courts since the start of the uprising and later issued a presidential pardon to release 700 of them. He declined to press for the retrial of 1,100 others, citing “security” grounds.
But at least 32 civilians are currently being tried before unfair military tribunals. These include 25 people arrested in November, when military police sought to evict them from Qursaya island in Cairo, and Mohamed Sabry, a journalist arrested while reporting on the new property law in the Sinai border region.
Before Morsy took office, parliament failed to curb the military’s power to try ordinary citizens before military courts, and the constituent assembly ultimately rejected language in early drafts of the constitution that would have halted the practice. Article 198 of the constitution now allows for military trials of civilians in cases deemed to cause “harm” to the military. Military trials of civilians are prohibited under international law.
“Morsy should halt all further military trials of civilians by instructing the defense minister to transfer these ongoing military trials to civilian courts,” Whitson said. “He should also end trials before Emergency State Security Courts, one of the worst relics of the Mubarak era, and transfer existing cases to the regular criminal courts.”
Despite the end of the more than 30-year state of emergency in May, Emergency State Security Courts continue to operate, under Article 19 of the emergency law, which lawyers are challenging before the Supreme Constitutional Court. Morsy failed to transfer the remaining trials before these courts to civilian courts, and in September appointed 3,649 judges to these courts.
On January 20, 2013, one of these courts began retrying twelve Christians and eight Muslims accused of participating in sectarian violence in Abu Qurqas in April 2011, during which two Muslims died, people on both sides were injured, and scores of Christians’ shops and homes were burned. A first trial in this case before an Emergency State Security court in Minya resulted in life sentences for the 12 Christians and the acquittal of the Muslim defendants, but this verdict was annulled.
Egypt’s new constitution guarantees places of worship for Muslims, Christians, and Jews but not for those of other faiths, such as Baha’i’s, whose right to religious practice is not protected. Sectarian violence has continued against a legacy of impunity. The president ordered a criminal investigation into sectarian violence in Dahshour in August, but there have been no investigations of numerous other incidents of sectarian violence since the uprising. The government has not taken steps to amend archaic laws that discriminate against Christians who want to build or renovate churches.
Freedom of association is also still curtailed by the notorious Associations’ Law of 2002, under which staff members of Egyptian and international nongovernmental organizations are currently standing trial. With the Mubarak-era trade unions law still in place, hundreds of newly formed independent trade unions have to operate precariously, with their members liable to prosecution for engaging in union activities.
Egypt’s first post-Mubarak parliament sat from January until the Supreme Constitutional Court ordered its dissolution in June. It discussed draft laws that would have enhanced freedom of association and information and made it easier to prosecute torture, but it did not finalize or pass them. In May, parliament failed to amend the Code of Military Justice to limit military trials of civilians.
In the following months, there were new assaults on the rule of law and judicial independence, first by Egypt’s outgoing military rulers in June and then by Morsy in November, with both issuing constitutional declarations awarding themselves special privileges and legislative authority. Two months after his election, the president overturned the military declaration.
But his November 21 Constitutional Declaration provoked outrage and allowed the constituent assembly to vote through the draft constitution in an overnight session and in the absence of liberal party members and church representatives. Morsy then announced the December 15 national referendum on the constitution, despite calls to postpone the vote and hold negotiations over some of the constitution’s more controversial provisions. The constitution is designed to allow vaguely-drawn provisions on morality and “the true nature of the Egyptian family” to qualify the rights it sets out. It also fails to guarantee key rights to free speech, religious belief, women’s equality, and the protection of civilians from trial before military courts.
In early 2014, Egypt’s human rights record will be closely scrutinized by the United Nations Human Rights Council for the first time since the January 25 uprising under the Universal Periodic Review process. This will be a key moment for assessing the progress, or lack of it, that Morsy’s government has achieved in carrying through long overdue human rights reforms and breaking with the legacy of the Mubarak years, Human Rights Watch said.
“The constitution drafting process was, at best, a missed opportunity, both failing to take adequate account of Egypt’s international human rights obligations and adopting language that directly undermines key rights that the 2011 uprising was intended to secure,” Whitson said. “The action on the constitution was tantamount to an act of betrayal and it has set an ominous precedent, which Morsy needs to overcome with genuine reforms.”