JURIST Guest Columnist Mohamed Abdelaal of Alexandria University Faculty of Law discusses Egypt’s anti-terrorism law…

After the revolution of 2011, which resulted in President Hosni Mubarak being forced to step down, delegating his powers to the armed forces, Egypt witnessed a huge wave of factional protest movements and escalated violence, nearly paralyzing the country’s facilities and services. However following the removal of President Mohamed Morsi by the Egyptian armed forces on July 3, 2013 amid wide popular demonstrations and protests against his rule and the Muslim Brotherhood’s regime, violence in Egypt took a more danger turn after the involvement of pro-Morsi Islamic-ideology driving terrorists.

The security situation in Egypt continued to deteriorate in 2014 and 2015. Islamic militants’ attacks were everywhere in Cairo. They detonated bombs in the metro and in Cairo University and assassinated the prosecutor general. Further, Egypt’s Sinai Peninsula has undergone a huge Islamic insurgency to the extent that some extremists swore allegiance to the Islamic State declaring the peninsula independent from Egypt and naming it Wilayat Sinai (The State of Sinai.)

To help facing this growing terrorism and insurgency, on August 15, 2015, Egypt’s President Abdul Fattah el-Sissi signed into law a new 55-article anti-terrorism bill [pdf]. The law was heavily criticized by international human rights organizations and political activists in Egypt that it is no more than a draconian law which widens the government power and restricts individual rights. However the Egyptian administration defended the new law arguing that it is an attempt to combat violence and terrorism and to restore stability in the country.

Here I provide my analysis to some of the most controversial articles in Egypt’s new anti-terrorism law.
Firstly, Article 2 of the law defines the act of terrorism to mean “The use of force, violence, threat or intimidation internally or externally for the purpose of disturbing public order or endangering the safety, security and interests of the community.” Pursuant to the article an act of terrorism is also any act that “undermines national unity, social peace and national security,” aims to “endanger the environment, natural resources, antiquities or public or private property” and “obstructs public authorities, judicial bodies, governmental local units, diplomatic or consular missions, regional or international organizations and places of worship.”

Apart from the fact that the article provides for a very sweeping-broad definition regarding what to be consider as an act of terrorism, the article failed to avoid one of the major criticisms that could be directed towards a punitive legislation; that is the criminal act must be unequivocally determined. Specifically Article 2 [pdf} could be criticized for using loose standards such as, “public order” and “social security and peace” in determining the terrorism crime without providing any guidance on how to define the borders of these loose standards. Accordingly, individuals could face the risk of being subject to the harsh punishments provided by the law for endangering the “public order” and “social security and peace” without actually knowing what is exactly meant by these terms, which significantly hurts the predictability of law. Further, such situation is likely to render the principle of legality vulnerable to such an extent that offenses would not be clear and ascertainable.

In fact in the context of the Egyptian legislation, using loose and vague standards to determine the content of a given crime is a common-frequently committed mistake. For example, under the now-abolished Egypt’s emergency law, the state of emergency could be declared “whenever the general security or the public order of the republic is threatened.” Further Egypt’s Protest Law of 2013 criminalizes protests that constitute “violations of general security, public order or production, calling for disrupting public interests…”

An equally significant aspect of vagueness and indeterminacy is evident in Article [pdf] 8 which shields law enforcement agents from criminal liability in case they “use force to perform their duty (in implementing provisions of the law) or to protect themselves from imminent danger that is likely to affect persons or properties, as long as this right (the use of force) deemed necessary and proportionate.” According to the article [pdf], law enforcement agents, likely police forces and the military, are immune from criminal liability if they use “necessary and proportionate” force to face “imminent danger.” The Egyptian judiciary has a long history applying what is known as the “average reasonable person standard.” According to this standard the judiciary would evaluate the law enforcement agent’s using of force as to how a typical “reasonable” agent would behave under the same or similar circumstances. Although as Oliver Wendell Holmes Jr. argued, the urgency of the “average reasonable person standard” has emerged from “the impossibility of nicely measuring a man’s powers and limitations,” the language of Article 8 elects the Egyptian judiciary to solely determine whether the used force was necessary and proportionate and whether the faced danger was imminent without providing any guidance or limitations. In fact Article 8 is likely to be construed as an absolute immunity for law enforcement agents from criminal liability given the record of the Egyptian judiciary that it has rarely held security forces and military men accountable.

Another controversial provision is Article 29, which sets a sanction of five year aggravated imprisonment for “the establishment of a social media account or a website that promotes ideas and beliefs that call for the commission of terrorist acts, or that broadcasts for information and news that misleads the security forces or obstructs the administration of justice.” Similarly Article 35 prescribed a fine up to 200,000 Egyptian pound ($29,000) without exceeding 500,000 Egyptian pound ($71,000) for “the publication, broadcast or promotion of false news or statements regarding terrorist attacks committed within the country or operations associated with fighting terrorism that differ from official statements by the Defense Ministry.”

A careful reading to these two articles reveals that practicing press and journalism could be a crime in Egypt and imposes further restrictions of the freedom of expression. Further these two articles could be seen as unconstitutional for being in conflict with Article 71 [pdf] of the Egyptian Constitution [pdf] of 2014 which prohibits to “censor, confiscate, suspend or shut down Egyptian newspapers and media outlets in any way [and that] no freedom restricting penalty shall be imposed for publication or publicity crimes.”

Another provision that could be seen as curtailing individual rights and personal freedoms is Article 40, which authorizes law enforcement agents to arrest suspects “if a serious danger associated with the terrorism crime has arisen and if avoiding such danger necessitates the detention.” Indeed this article shifts the law enforcement agents from being responsible for guaranteeing individual freedoms into a mere repressive tool. Precisely since the article does not give any guidance regarding what might be considered “a danger associated with the terrorism crime,” the authorities are delegated a huge deal of discretion to determine the nature and the content of this danger, which may render individual rights and freedoms subject to arbitrary acts of public authorities.

Also worth noting is Article 50’s approach in assigning one or more circuits of Egypt’s criminal courts to preside over terrorism-felonies cases and circuits of Egypt’s first instance courts to decide terrorism-misdemeanors cases, provided that these cases are to be expeditiously settled. Indeed the article failed to define the scope of the expedited judicial decision and to mention what guarantees available for the judiciary to render its decision expeditiously. Nevertheless the article did well in avoiding the establishment of special courts to decide terrorism-related cases pursuant to the constitutional command found in Article 97 [pdf] of the Egyptian Constitution of 2014 that “No person may be tried except before the ordinary judge and exceptional courts are prohibited.”

In fact a careful examination of the Egyptian punitive legislations discloses the fact that many laws could serve the same purpose the 2015 Anti-terrorism law intends to serve. For instance consider the Egyptian Penal Code of 1937 [pdf] as well as the Egyptian protest law of 2013, which both include some crimes that are similar to those mentioned in the anti-terrorism law such as the possession of weapons and explosives, the dissemination of false news and information and the joining of an armed group. Further Egypt’s Penal Code contains a definition of what shall be considered an act of terrorism which to a great extent resembles that definition mentioned in the anti-terrorism law. Egypt’s conduct in being so active issuing new laws that govern areas that are likely to be already governed by existing laws could raise major discrepancies in courts regarding which law is applicable and whether a judge should favor a harsher sanction or a lesser one.

Finally in a country such as Egypt, that seeks stability and economic prosperity after the two popular uprisings in January 2011 and June 2013 that toppled two defiant regimes, those who spread terror, riots and chaos certainly need to be deterred. However this should be done the proper way. I am not arguing against the concept that a law must exist to help alleviating the severity of violence and to enable the government to extend its grip for the purpose of providing security and end the unrest state in Egypt. However such law must be subtle to the extent that it can precisely determine the scope and the consequences of the criminal offense in such a way that ensures the rule of law and promotes the predictability of law.

Mohamed Abdelaal is an Assistant Professor of Law at Alexandria University Faculty of Law. He specializes in constitutional law, administrative law, administrative judiciary and Islamic constitutional law. Professor Albdelaal recieved his JD and LLM from Indiana University Robert H. McKinney School of Law.

Suggested citation: Mohamed Abdelaal, Egypt’s Anti-Terrorism Law: A Needed Step or A Legislative Redundancy? , JURIST – Academic Commentary, August 31, 2015, http://jurist.org/forum/2015/08/mohamed-abdelaal-egypt-anti-terrorism.php