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Are Egypt’s anti-terror efforts 'shackled' by law?

There are concerns about the amendment of laws in the Egyptian parliament to impose more exceptional measures under the excuse of combating terrorism.

CAIRO — The Egyptian government has set its mind on finding a new legislation that would accelerate litigation procedures in terrorism crimes to a very tight timeline, with 30 days maximum as the government’s decisive measure to combat terrorism. However, it opens the door for exceptional procedures and widening the circle of suspects under the guise of “implementing justice.”

President Abdel Fattah al-Sisi used the concept of “implementing justice” in one of his speeches about the importance of amending laws and passing additional sanctions against extremists and terrorist organizations, particularly after the assassination of Prosecutor General Hisham Barakat in June 2015. Sisi said during Barakat’s funeral on June 30, 2015, “The hands of justice are shackled by laws.”

Sisi used the same concept again during his speech at the funeral of the victims of the St. Peter and St. Paul Church explosion on Dec. 12, when he said, “The laws are chaining, and the judiciary will never work decisively amid the current laws.”

One day after Sisi’s speech, the parliament made the first move not only to amend laws, but to propose the possibility of amending the constitution. “To allow the military judiciary to look into terrorism crimes, we will amend the constitution accordingly,” parliament Speaker Ali Abdel Aal said in the parliament’s general session on Dec. 13.

Despite Abdel Aal’s words, a number of parliamentarians said that such a step at the current time is ruled out. “The legal rights gained under the current constitution cannot be undermined. The parliament will put into consideration disapproving of any liberty-depriving laws that can be appealed against,” member of parliament Diaa Dawood told Al-Monitor.

Most legal experts believe that the set of laws issued since 2013 for combatting terrorism, such as the Penal Code and the Law on Terrorist Entities and Combatting Terrorism, are more than enough to deter terrorism. Moreover, the Law on Protecting Vital and Military Facilities even grants authorities the right to refer civilians to military courts without contradicting the constitution.

“Referring civilians to military courts is already standing, and there is no need to make legislative or constitutional amendments, as the law for securing and protecting vital facilities has been extended for five more years since the beginning of 2016,” Mohamed Nour Farahat, a constitutional law professor, told Al-Monitor.

He also condemned any demands to amend the constitution. “It indicates a distrust of the Egyptian judiciary to call for these demands and attempts to repeal constitutional articles that were a real gain deserved by Egyptians — such as guaranteeing general liberties and the distribution of public expenditure in the budget, as well as the duration of presidential terms.”

Concerns about issuing laws that impose exceptional procedures through accelerating the process of trials regardless of fairness of the litigation process — by exploitation of the terrorist tragedy that targeted Christians at St. Peter and St. Paul Church — stem from the government taking similar measures when it issued the Law on Combatting Terrorism one month after Barakat’s assassination in June 2015.

The Law on Combatting Terrorism includes a number of articles that generally target accelerating litigation procedures of terrorism lawsuits:

  • Increasing penalties through deterrence sanctions for whoever takes part in terrorist actions to reach life sentences up to 25 years or death penalties.
  • Exempting and immunizing the military and the police from persecution.
  • Imposing sanctions on any journalist who publishes unreal data on terrorist operations that contradicts with official data.
  • Granting the president the right to take precautionary measures to force a curfew to combat any terrorist danger.

The Law on Combatting Terrorism, in general, is considered enough to address perpetrators of terrorism crimes legally. However, litigation procedures remained pursuant to the Criminal Procedure Code, which allows challenging rulings before a cassation court and referring them back to criminal courts to look into them. Moreover, the Law on Combatting Terrorism did not explicitly state that civilians could be tried before military judiciary, which would contradict Article 204 of the constitution, which states that “civilians cannot be tried before military courts except for crimes that represent direct assault on military facilities.”

Typically, the Court of Cassation returns repealed cases to the criminal court to look into them. According to statements by Magdi el-Agaty, the minister of legal and parliamentary affairs, during the parliament’s general session on Dec. 12, the amendments that are now being carried out by the government seek quicker issuance of rulings through obligating the Court of Cassation to contest the same rulings of repeal it issued, without having to return them to criminal courts to reduce stages of criminal procedures. The amendments might also include adding a new paragraph that makes it optional for the court to hear witnesses, unless the court decided hearing was necessary for the trial.

Al-Monitor observed litigation procedures in Egyptian courts and noted that the pace of trials after June 30, 2013, showed that in about 16 cases where a large number of leaders from the Muslim Brotherhood and extremist groups were indicted, only four to eight months were taken to look into them. This contradicts the amount of time consumed by litigation in lawsuits being looked into ever since the January 25 Revolution, which are related to murdering demonstrators or trying Hosni Mubarak regime figures.

Moreover, protracted litigation in cases related to incidents of violence committed by Islamist suspects usually has nothing to do with requests made by lawyers or hearing witnesses. The drawn out time frame is usually due to logistic and procedural reasons, such as the police’s abstention from transferring suspects from places of their detention as well as the absence of prosecution witnesses who are National Security officers. Last but not least, the military judiciary has not yet decided on a number of lawsuits referred to it since issuing the Law of Combatting Terrorism in 2014.

Concerns do not end with fearing the amendment of laws to impose more exceptional measures under the excuse of combating terrorism. Concerns also include amending the constitution itself, which will directly threaten some of the political gains brought about by the two revolutions of January 2011 and June 2013. In the absence of a parliamentary majority that supports the political authority, the parliament might adopt a set of amendments that include extending presidential terms and authority without finding real policies to combat terrorism, which is no longer the main challenge before the political administration as socio-economic crises preside over the Egyptian scene now.

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