(Beirut) – Egypt’s newly elected parliament should amend or revoke several abusive laws that President Abdel Fattah al-Sisi and his predecessor, Adly Mansour, have issued by decree since the military ouster of President Mohamed Morsy in July 2013.
These laws have, among other things, effectively banned protests, legalized emergency police powers, and expanded military court jurisdiction over civilians, leading to the imprisonment of thousands of people.
“Egypt’s new legislators should embrace their role as a check on the harsh powers the country’s leaders have wielded since 2013,” said Nadim Houry, deputy Middle East and North Africa director. “This parliamentary review can offer a glimmer of hope for the restoration of rights in Egypt.”
Egypt’s constitution gives the new unicameral parliament, which convened on January 10, 2016, only 15 days to consider hundreds of laws issued by presidential decree since 2013.
Such decrees must be “presented to, discussed and approved” by parliament, and if legislators do not ratify them, “their force of law shall retroactively be revoked,” the constitution states.
Human Rights Watch is particularly concerned about five laws. Most urgently, the new parliament should revoke the laws banning protests and expanding military court jurisdiction and write legislation to cancel all prison sentences handed down under these laws.
The protest law, issued on November 24, 2013, effectively gives the Interior Ministry discretion to ban any protest on vague grounds and allows police to forcibly disperse protests at the slightest indication of disorder. The authorities have used the charge of participation in an illegal demonstration, often combined with other charges, to jail thousands of people.
The military courts law, issued on October 27, 2014, placed all “public and vital facilities” – ranging from electricity, gas, and oil facilities, to railroads and roads – under military court jurisdiction for two years and directed state prosecutors to refer any crimes at those places to their military counterparts.
Nearly 4,000 civilians have been charged or sentenced in military courts since al-Sisi issued the decree, according to reports by media and local groups.
Egypt’s military courts operate under the authority of the Defense Ministry, not the civilian judicial authorities. They typically deny defendants rights accorded by civilian courts, including the right to be informed of the charges against them, and the rights to access a lawyer and to be brought promptly before a judge following arrest.
Another law that opens the way to rights abuse is a major counterterrorism law issued on August 15, 2015, which defines terrorism so broadly as to encompass civil disobedience. The law created penalties for journalists whose reporting isn’t consistent with the government’s official statements and gives prosecutors greater power to detain suspects without judicial review and to order wide-ranging and potentially indefinite surveillance of terrorism suspects without a court order.
A law meant to curtail foreign funding, decreed on September 21, 2014, amended the penal code to penalize the receipt of foreign funding in certain cases with life in prison or even the death penalty. Independent Egyptian nongovernmental groups viewed the amendment as a serious threat to their work.
A pretrial detention law, decreed on September 26, 2013, amended Egypt’s criminal procedure code to dramatically extend the length of time people can be held in custody either before trial, during the appeals process, or while awaiting retrial.
The new parliament should refuse to ratify these laws or replace them with legislation in line with international standards, Human Rights Watch said.
It should also amend the constitution to forbid prosecuting civilians in military courts and ensure that this law applies retroactively to all civilians sentenced by military courts who remain in custody, who should be released.
“Egypt’s new lawmakers should exercise their mandate to the fullest and have the courage to stand for citizens’ basic rights,” Houry said.
The constitutionality of the decrees issued since July 2013 remains unsettled. Some lawyers and other legal experts have questioned their legality.
The current constitution has only been in effect since January 2014, around six months after al-Sisi removed Morsy, the country’s first freely elected president. Mansour, whom al-Sisi appointed as interim president, dissolved parliament shortly thereafter.
Some officials and experts have argued that parliament cannot review decrees issued between Morsy’s July 2013 removal and the January 2014 passage of the new constitution, a period during which Egypt was governed by a special constitutional declaration issued by Mansour.
Parliamentary Affairs Minister Magdi al-Agati told Al-Ahram newspaper on January 6, 2016, that parliament’s retroactive review power applies only to decrees issued after the passage of the new constitution. But he said that parliament should nevertheless review all of the decrees issued since July 2013 “as a precautionary measure.”
The current constitution gives the president authority to issue such decrees, but only “in [the] case [of] an event which requires taking urgent measures, which cannot be delayed.”
No court has ruled on whether Mansour or al-Sisi’s decrees met such a requirement.
Egypt has not had a fully functioning parliament since June 2012, when the country’s high court dissolved the lower house – the first legislative body to be chosen after the 2011 uprising – ruling that it had been elected under a constitutionally flawed electoral law.
The lower house had been led by the political wing of Morsy’s former organization, the Muslim Brotherhood, and its dissolution coincided with Morsy’s election.
Following the high court ruling, Morsy governed under the mostly symbolic oversight of the remaining upper house of parliament until July 2013, when al-Sisi, then the defense minister, removed him. Mansour, the chief of the Supreme Constitutional Court, ordered the upper house dissolved two days after Morsy’s removal.
After he took office as president in June 2014, al-Sisi established a Supreme Committee for Legislative Reform to help review and draft legislation in the absence of a parliament. The committee, appointed by al-Sisi, included the prime minister, the transitional justice minister, the deputy leader of the country’s highest institution of Sunni Islam, and the grand mufti – the country’s top Islamic official – in addition to lawyers and law professors.
The new parliament will consist of 568 elected members, and al-Sisi will appoint 28. Al-Sisi’s largest opposition, the Muslim Brotherhood, has been effectively banned from public life and its political party dissolved. Courts have sentenced thousands of its members in unfair trials and a government panel has frozen hundreds of schools, medical clinics, and nongovernmental organizations allegedly tied to the group.
Protest Law – Law 107 of 2013 on the Right to Public Meetings, Processions and Peaceful Demonstrations
Mansour, the former president, issued this law on November 24, 2013, about four months after al-Sisi chose him to lead the interim government.
The law effectively gives the Interior Ministry discretion to ban any protest on vague grounds and allows police to forcibly disperse protests at the slightest indication of disorder.
Article 8 requires organizers of demonstrations, processions, and public meetings of more than 10 people that take place in a public place to notify their local police station three days in advance.
Article 10 gives the Interior Ministry an absolute right to deny the protest request on the vague basis of “serious information or evidence that there will be a threat to peace and security,” without a requirement to provide that evidence.
Organizers can in theory appeal that denial before a court, but the law sets no time frame for review, meaning that the court could hear the appeal after the scheduled date of the event.
Article 7 prohibits a host of vaguely defined behavior at protests, stating:
Participants in public assemblies or processions or demonstrations are prohibited from violating security or public order or impeding production or calling for this, or impeding the interests of citizens, or harming them or exposing them to danger or affecting their ability to perform their rights and their work, or influencing the course of justice, or public facilities, or blocking roads or public transportation, or ground, sea, or air transportation, or blocking traffic, or assaulting individuals or public or private property or endangering them.
Violating these prohibitions is punishable by between two and five years in prison and a fine of 50,000 to 100,000 Egyptian pounds (US$7,200 to 14,500), under article 19.
Article 11 allows the police to forcibly disperse a demonstration if “any criminal act emanates from the participants, or if the assembly diverges from peaceful expression.”
Though article 12 specifies that police should use escalating levels of force, beginning with warnings, Egyptian police have not abided by these standards. In January 2015, more than 20 people died in demonstrations marking the anniversary of the 2011 uprising, including the socialist activist Shaimaa al-Sabbagh, who died from birdshot wounds when police attacked her party’s small, peaceful protest stand in a downtown Cairo square.
The authorities have used the Protest Law to jail scores of activists, such as Ahmed Douma, Sanaa Seif, and Alaa Abdel Fattah; the April 6th Youth Movement founders Ahmed Maher and Mohamed Adel; and human rights workers such as Yara Sallam and Mahienour al-Masry.
The new parliament should retroactively revoke the Protest Law by declining to ratify it as required by the constitution. If legislators determine that they do not have retroactive review authority over the period during which the Protest Law was issued, they should draft a new assembly law aimed at updating the existing laws, including the Illegal Assembly Law of 1914 and Public Assembly Act of 1923, to bring them in line with international standards.
This new law could include a provision requiring planners to notify authorities about a protest, but it should not make that requirement bureaucratically burdensome and should allow protests to respond to events in a timely fashion and recognize that spontaneous protests will occur.
The United Nations Special Rapporteur on the Rights to Freedom of Assembly and Association has stated that to protect freedom of assembly under the International Covenant on Civil and Political Rights, states should not require that demonstrations need prior authorization by the authorities, and at the most require a prior notification procedure, which should not be unduly bureaucratic.
Any new law should require the authorities to clearly define the reasons for prohibiting any particular demonstrations and require speedy judicial review of any appeal.
Similarly, prohibited behavior should consist of clearly defined criminal acts and should not include vague provisions such as impeding “the interests of citizens” or “affecting their ability” to work. It should not also hold organizers of demonstrations responsible for acts of individuals during the demonstrations simply because they are the organizers.
Military Courts Law – Law 136 of 2014 for the Securing and Protection of Public and Vital Facilities
Al-Sisi issued this law on October 27, 2014, three days after an unprecedented attack on the armed forces in North Sinai by the extremist group Ansar Beit al-Maqdis, which later pledged allegiance to the Islamic State, also known as ISIS. The attack left at least two dozen soldiers dead.
The law placed all “public and vital facilities” under military court jurisdiction for the next two years and directed state prosecutors to refer any crimes at those places to their military counterparts.
The law included electricity stations, gas pipelines, oil wells, railroads, road networks, bridges, and any similar state-owned property in its definition of public and vital facilities.
In November 2014, the prosecutor general issued an internal decision requiring prosecutors to send any case that met the law’s requirements to military prosecutors whenever asked, no matter what stage of investigation, according to a copy of the decision published by the Egyptian Observatory for Rights and Freedoms, a local activist group. Civilian prosecutors subsequently referred to military prosecutors hundreds of cases that predated the decree, most of them involving protests, including some involving university students.
Military judges have presided over trials of civilians in Egypt for decades, despite efforts by activists and some politicians to eliminate the practice. In the months following the 2011 uprising, military courts tried almost 12,000 civilians on an array of regular criminal charges.
Ending the prosecution of civilians in military courts became a top goal for many activist groups, but each post-uprising government has maintained the practice.
The use of military courts to try civilians violates the 1981 African Charter on Human and Peoples’ Rights, which Egypt’s parliament ratified in 1984. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance, issued by the African Commission on Human and People’s Rights, explicitly forbids military trials of civilians in all circumstances.
Parliament should refuse to ratify this law and should amend the constitution to forbid prosecuting civilians in military courts. It should ensure that this amendment applies retroactively to all civilians sentenced by military courts who remain in custody, who should be released.
Counterterrorism Law – Law 94 of 2015 for Confronting Terrorism
Al-Sisi issued this law on August 15, 2015, a month and a half after Prosecutor General Hisham Barakat died in a car bombing near his home in Cairo. Barakat was the first high government official to be assassinated since 1990. Al-Sisi pledged at Barakat’s funeral to change laws to “implement the law and justice in the fastest possible time.”
The law defines a “terrorist act” as any “use of force or violence or threat or terrorizing” that aims, among other things, to:
Disrupt general order or endanger the safety, interests or security of society; harm individual liberties or rights; harm national unity, peace, security, the environment or buildings or property; prevent or hinder public authorities, judicial bodies, government facilities, and others from carrying out all or part of their work and activity.
Although there is no generally agreed international definition of terrorism, the UN Security Council unanimously agreed in 2004 on elements of what should be considered terrorist acts, focusing on “criminal acts committed with the intent to kill, cause serious bodily injury, or take hostages with the aim of intimidating or terrorizing a population or compelling a government or international organization to do or to abstain from doing any act.” Egypt’s law goes far beyond this.
The law attaches stiff penalties for incitement or for propagating ideas that advocate terrorism. Article 6 states that “incitement to commit any terrorist crime … whatever the means used” is subject to the same punishment as committing the crime itself, regardless of whether the incitement is public or private or the crime occurs.
The law sharply restricts the media in article 35, which states that anyone who publishes or promotes “untrue” news about acts of terrorism or news that contradicts official Defense Ministry statements about counterterrorism operations can be punished by a fine of 200,000 to 500,000 Egyptian pounds (US$25,000 to $64,000). If the person is a professional journalist, a court can bar them from their job for up to a year.
The law also punishes anyone who uses a website for the purpose of “promoting ideas or beliefs advocating the commission of terrorist acts” with at least five years in prison.
The new parliament should retroactively revoke the Counterterrorism Law. It should begin the process of drafting a new comprehensive counterterrorism law by inviting independent groups and human rights experts to contribute. The parliament should invite the UN special rapporteur on counterterrorism and human rights to visit Egypt to assess the state of Egypt’s counterterrorism efforts.
Any new counterterrorism law should adopt narrower elements to define terrorist acts such as those approved by the UN Security Council in 2004. It should not provide any punishment for journalists or other citizens merely for expressing their opinion or reporting on events and should not give courts the power to ban journalists from their work. It should ensure strong, independent judicial review of the authorities’ actions at every step, including of surveillance and detention orders.
Foreign Funding Law
Al-Sisi amended article 78 of Egypt’s penal code on September 21, 2014, to penalize the receipt of foreign funding in certain cases with life in prison. Independent Egyptian groups viewed the amendment as a serious threat to their work.
The amended law states that anyone who receives funds from a foreign country, individual, or organization with the aim of pursuing acts harmful to the nation’s unity, interests, or territorial integrity, or destabilizing its general peace and safety, shall be penalized with a life sentence and a fine of no less than 500,000 pounds ($64,000) and up to the amount the person planned to receive.
Under the amended law, anyone who receives foreign funding for the prohibited purposes described in the amendment in a time of war or for the purpose of terrorism could face the death penalty, as could any government employee.
The previous version of the law had set a maximum punishment of a much shorter period of imprisonment and a fine of not less than 1,000 pounds ($128), and only applied to the receipt of funds from a foreign country or someone acting in its interests.
Al-Sisi issued the amendment two months before a government deadline for non-governmental groups to register under Egypt’s onerous 2002 law on associations, which gives the government tight control over nongovernmental groups’ work and funding.
The government did not enforce the deadline or issue a new law regulating these groups, leaving organizations unsure about how it would treat them if they received foreign funding, which makes up a large part of many independent groups’ budgets.
Egypt’s Social Solidarity Ministry opened an investigation into the foreign funding and legal standing of nongovernmental groups after the 2011 uprising, and a court convicted and sentenced 43 employees of foreign groups, including Americans and Egyptians, in June 2013. The investigation into local organizations remains open.
The right of groups to access funding is protected by article 22 of the International Covenant on Civil and Political Rights, which guarantees the right to freedom of association. In 2002, after Egypt passed its current associations law, the UN Human Rights Committee – the body tasked with overseeing the covenant – found that the law’s restrictions, including on access to foreign funding, were inconsistent with article 22.
Restrictions on freedom of association should be proscribed by law; imposed solely to protect national security or public safety, public order, public health or morals, or the rights and freedoms of others; and necessary in a democratic society. States should demonstrate that the restriction of freedom of association is necessary to avert a real danger to national security and that less intrusive measures cannot be used.
The new parliament should revoke article 78 entirely. If the new parliament wishes to criminalize the receipt of specific funds, it should create proportionate penalties that fit narrowly tailored crimes.
Pretrial Detention Law
Mansour amended article 143 of Egypt’s criminal procedure code on September 26, 2013, to dramatically extend the length of time people can be held in detention either before trial, during the appeals process, or during retrial.
The amendment added new language to the article, allowing judges to indefinitely renew detention orders for defendants who are appealing death or life imprisonment sentences or who have been granted a retrial after such sentences.
Morsy and hundreds of Brotherhood members, including almost the entirety of the organization’s leadership, have been sentenced to death or life in prison and have appealed. Human Rights Watch has documented the basic lack of fairness in the mass trials that led to these convictions.
Since Morsy’s removal, Egypt has held thousands of other defendants in pretrial detention regardless of the seriousness of their crime or their risk of flight. In July 2014, the Prisons Authority, a division of the Interior Ministry, told a government fact-finding committee that 7,389 of nearly 13,000 people arrested after Morsy’s removal remained in pretrial detention. This number was impossible to verify, and other anonymous security officials told news agencies that the total number of people arrested after Morsy’s removal was nearly twice as high.
These figures reflect a disproportionate use of pretrial detention “as a punitive measure against political prisoners,” the Robert F. Kennedy Center for Justice and Human Rights stated in September 2015.
Under article 142 of the criminal procedure code, judges can order suspects held for 15-day detention periods and renew those detention orders up to three times. If a judge determines that the investigation is still incomplete after 45 days, the judge can continue to renew the pretrial detention.
Before Mansour’s amendment, article 143 stated only that pretrial detention should not exceed six months for minor offenses, 18 months for serious crimes, or two years for crimes that carry the death penalty or life imprisonment.
Under international human rights law applicable in Egypt, detention before trial should be the exception, not the rule, and anyone subject to pretrial detention should be brought promptly – and at regular intervals thereafter – before a judge to review the legality and necessity of their detention. Such detainees are entitled to a trial within a reasonable time or release. The new parliament should pass laws to ensure that all these provisions apply to all pretrial detention in Egypt.
Nevertheless, prosecutors and judges have held hundreds of defendants arrested after Morsy’s removal in pretrial detention for periods that exceeded those legal limits.
In one case, nearly 800 defendants accused of participating in a mass sit-in in Cairo’s Rab’a al-Adawiya Square in 2013 were arrested in August of that year and only referred to trial in September 2015, 25 months later.
The judge in that case renewed the defendants’ detention order multiple times without seeing them, as there was no courtroom in Cairo large enough to hold them. Another judge has repeatedly renewed a pretrial detention order for Mahmoud Mohamed, a 19-year-old student detained for wearing an anti-torture T-shirt, for more than 600 days.