Egypt's Counterterrorism Law: Enshrining Security at the Expense of Civil Rights

By Mai El-Sadany
Tuesday, August 18, 2015, 7:10 AM

After months in the making, Egypt's new counterterrorism law was ratified by President Abdul Fattah El-Sisi and published in the August 15, 2015 edition of the Official Gazette. The law comes in to color already-existing terrorism legislation in the Criminal Procedure Code, the Penal Code, and the Terrorist Entities law.

Much like the previous definition for "terrorism" under Article 86 of the country's penal code, the definition of a "terrorist act" in the new law is vague. It incorporates "the use of force, violence, threats or incitement inside of Egypt or outside of it with the purpose of disturbing the public order, putting the security and interests of society at threat, harming individuals...violating national unity, social peace, and national security... or impeding the implementation of the Constitution," among other clauses. Much of Egypt's prior terrorism legislation was comparably broad, thus contributing to a fear that the new law may similarly be applied both to individuals who are undeniably terrorists, but also to persons who non-violently propagate opposition viewpoints and challenge the government.

An unusual legal provision is enshrined in Articles 5-7 of the law which collectively state that individuals who attempt, solicit, or incite to commit a crime are to be punished to the same degree as individuals who actually commit the crime. Typically, criminal laws tend to hand down lesser sentences to those who do not fully and directly partake in a crime.

The new law further protects authorities tasked with implementing the law in their decision to use force "to perform their duty" or for the purposes of self-defense or the defense of others as long as such force is found to have been necessary. In a country in which security forces have largely been left to act with impunity since even before the Revolution, such language enshrines immunity and significant discretion despite long-standing calls regarding the need for security sector reform.

With regards to specific substantive punishments, the new counterterrorism law reiterates some of the previous punishments sprinkled throughout the penal code and adds a number of new crimes like kidnapping and social media incitement. Founders and leaders of terrorist organizations are subject to death or life imprisonment. Financers of terrorist organizations or specific terrorist acts face a possible death sentence; financers of individual terrorists face a life sentence. A prison sentence of no less than 10 years is laid out for those who participate in weapons and military training for terrorist purposes, the forcible storming of government buildings, the overthrow of the government, and the kidnapping of persons to pressure government action. A prison sentence no less than seven years is set forth for the hijacking of planes and ships and the interference with gas or electricity lines. A minimum of five years in prison is handed down to religious figures, media personalities, and persons on social media who incite terrorism. The publication of terrorism statistics that contradict the numbers provided by the Ministry of Defense is to be punished by a fine of 200,000-500,000 Egyptian pounds (between $25,000 and $65,000) and a possible work ban (presumably for journalists) for up to one year.

On the procedural side, the law creates a new concept within remand detention; when a terrorism crime or harm is imminent, individuals can be held for a 24-hour period (subject to one 7-day extension) even before a complaint is submitted, a case is compiled, or charges are brought. Thereafter, persons can be held in regular remand detention as laid out by the Criminal Procedure Code. Although the temporary detention period can be challenged, investigating officials enjoy expansive discretion in this regard. Further, authorities can seek permission for a 30-day allowance (upon a showing of adequate cause) in which they may monitor and record phone conversations, social media exchanges, and even private citizen interactions related to the terrorist crime in question.

Terrorism crimes will be heard by a designated court from among the country's existing criminal courts. Misdemeanor terrorist crimes will be heard by a designated court from among the country's existing courts of first instance. Appeals to any sentences for these terrorist crimes will be heard by another designated court from among the existing courts of first instance. Although establishing a designated court system creates areas of expertise, there is also simultaneous fear that it produces overly-harsh sentences and concentrates power in the hands of a few justices.

Ultimately, Egypt's counterterrorism law enshrines a number of substantive and procedural areas of legal concern; this becomes especially worrisome in light of the fact that the country continues to have no parliamentary body and that the President has issued over 175 extraparliamentary laws in its absence, instead relying on the feedback of largely-appointed advisors. There is also no doubt however that Egypt has both the duty and right to apply effective counterterrorism measures to fight the serious threats that it is contending with; as mandated under international law, however, this emphasis on security should not and need not come at the expense of civil and human rights.

Thus, there are questions about whether a law that enshrines harsh sentences, employs procedural due process irregularities, and is modeled after much of the same previously-ineffective legislation that the country has adopted, will be able to provide Egypt with the simultaneous security and transitional justice that it so desperately needs.