What is not known about the Egypt's Counter-Terrorism Law

By Ahmed Tanikhy

In the past few days, a number of enquiries have arisen in response to Egypt's adoption of a new counterterrorism law, Decree Law no. 94 of 2015. The following is a brief explanation of the objectives of the law, and a response to some of the remarks raised in this regard:

* The adoption of a new terrorism law in Egypt comes at a time in which Egypt is facing an unprecedented wave of terrorism and violence which have targeted and killed numerous innocent civilians, as well as military and law enforcement officials.

* The adoption of new terrorism legislation is in conformity with Egypt's obligations under Security Council Resolution 1373 (2001) which required all states to take all necessary measures to prevent the commission of terrorist acts, suppress the financing of terrorism and ensure that any person who participates in or supports terrorist acts is brought to justice. Many members of the international community responded by amending existing ant-terrorism legislation or adopting new legislation.

* Simultaneously, Egypt is committed to its human rights obligations under the Egyptian constitution and international human rights treaties and conventions, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which are directly enforceable in Egypt once ratified.

* The need to strike a balance between the preservation of security, law and order on the one hand, and the protection of human rights on the other is a major concern and has informed the whole process of drafting the new terrorism law. Before adopting Decree Law no 94 of 2015, broad consultations made sure that the concerns of civil society groups and the Supreme Judicial Council were taken into consideration, which is reflected in the new law.

1 - The definition of "terrorist", "terrorist group" and "terrorist act":

There is no universally agreed definition of terrorism. It is therefore up to every domestic jurisdiction to develop its own definition, taking into consideration relevant international agreements and resolutions.

The definition of terrorist and terrorist acts embodied in article 1 and 2 of the new law are based on the definition enshrined in article 86 of the Egyptian Penal Code as amended by law no. 97/1992 and 95/1993. This definition has been developed to match the evolving nature of terrorist crimes.

Article 2 clearly defines what is meant by a "terrorist act", specifying both the actus reus and the mens rea. Subsequent articles supplement article 2 by prohibiting certain specific acts (such as training persons to use weapons, raiding government headquarters or embassies), with the intent to commit a terrorist crime. This is in line with the principle of legality, according to which all crimes must be clearly defined.

As for the issue of the designation of "terrorist groups" this is subject to Decree Law 8 of 2015 on terrorist entities, which requires the Public Prosecution (which is part of the judicial authority) to make a list of these organizations in accordance with judicial decisions.

2 - Streamlining judicial procedures:

It is our firm belief that justice delayed is justice denied. One of the main objectives of Egypt's new counter-terrorism legislation, therefore, is to streamline and simplify procedures so as to expedite the delivery of justice.

Unlike the media has widely reported, the new law does not establish special courts to try terrorism-related offences. It establishes special chambers/circuits within ordinary courts (criminal courts and courts of first instance) that are presided over by ordinary judges. This is a more efficient and effective way of dealing with the large caseload of the judiciary. In no way does this affect the rights of the accused, their fair trial guarantees or their right to appeal.

In fact, in order to expedite the judicial process, restrictions have been placed on the period of temporary pre-trial custody. Under the new law, this period is 24 hours (before the accused must be brought before a judicial authority), and can be renewed only once for a period not exceeding seven days. Shortening the period of pre-trial custody has always been an important demand of civil society and human rights groups so it is surprising that these same groups would criticize this provision of the new law.

3 - The issue of impunity for the excessive use of force:

It has been argued that article 8 of Law no. 94 of 2015 shields military and police officers who have used force from accountability. This is an inaccurate reading of article 8, which places clear restrictions on the use of force. According to article 8, officers who use force to implement the law or to defend themselves from an imminent threat to life or property are not criminally responsibly, provided their use of force is necessary and sufficient to repel the threat (i.e. proportionate).

It is a general principle of law common to all major legal systems that self-defense is a grounds for excluding criminal responsibility. This is reflected in the domestic legislation of states and international instruments addressing prosecution for international crimes. Moreover, it is axiomatic that law enforcement officials may use force in pursuance of their official duties. Both these uses of force are limited by the principles of necessity and proportionality under article 8, which clearly conforms to international standards and guidelines on the use of force. In other words, article 8 does not, under any circumstance, allow for the abusive or arbitrary use of force.

4 - Penalties for reporting false news:

As for restrictions on reporting false news, article 35 provides that this is punishable by a fine of LE 200,000 – 500,000 and/or suspension from the profession for one year, if it is evident that the person spreading false news has done so in violation of the codes of his/her profession. The government department responsible for providing information on terrorist attacks and threats is the Ministry of Defense.

This provision was amended after a period of intensive discussion with various civil society groups, including the Journalists Syndicate which had expressed their reservations to the previous text that had established a two-year prison sentence as a penalty for false reporting. Ultimately, the provision was amended so as to conform to Egypt's constitution, which bans custodial sentences for publishing offences.

5 - Other positive aspects:

The law also contains many other positive aspects such as the rehabilitation of perpetrators. It also guarantees that those who report a terrorist crime before it takes place or cooperate with the authorities to catch the perpetrators will not be prosecuted. Finally, it expands the grounds on which Egyptian courts can exercise jurisdiction over terrorist offences thereby ensuring there is no impunity for perpetrators.

Decree Law no 94 of 2015 has benefited from a comparative study of other available legislation, such as the US Patriot Act, the UK Terrorism Act (2000) and the series of counter-terrorism laws adopted by France. It is also inspired by the Arab Convention on the Suppression of Terrorism, adopted by the League of Arab States in 1998.

The new law is better capable of dealing with the evolving terrorist threat and the changing nature of terrorism. While taking into consideration human rights guarantees enshrined in Egypt's constitution and international obligations, it provides an essential tool to effectively combat terrorism and bring perpetrators to justice without delay.

6 - Procedure for adopting Law no 94 of 2015:

Law no 94 of 2015 has been adopted by the President in the absence of Parliament. However, once the new parliament is elected, it will be required to review all legislation adopted in its absence, including the new terrorism law.

The delay in parliamentary elections has resulted from the Supreme Constitutional Court's ruling that article 3 of the previous electoral law was unconstitutional. A new electoral law has been approved recently and elections are slated to take place before the end of 2015.

In addition, the law, like any law in Egypt, is subject to oversight by Egypt's Supreme Constitutional Court.

The writer is the head of press office at the Egyptian Embassy in Kampala Uganda