The following is a guest post by George Sadek, a senior legal research analyst at the Law Library of Congress. George has previously written posts for In Custodia Legis, including on legal processes available to imprisoned journalists in Egypt and various constitutional reform issues. This blog post is part of our Frequently Asked Legal Questions series.
On August 16, 2015, President Abu al-fattah al-Sisi, the current president of Egypt, ratified law No. 94 of 2015, known as the “Law on Combating Terrorism.” The law was published in the official gazette, Al-Jaridah al-Rasmyia, on the same day it was ratified by the president.
This law has generated debate among legal scholars, human rights organizations, and political activists. Supporters argue that it will play a vital role in combating terrorism and enhancing the stability and security of Egypt following a series of attacks against government officials, police, and army personnel. However, others claim that the law imposes unprecedented restrictions on the freedom of speech in violation of the Egyptian Constitution of 2014. Opponents also argue that it gives government authorities the ability to apply a broad definition of terrorism in order to arrest individuals who write statements, reports, and articles in newspapers criticizing the performance of the regime and charge them with promoting terrorism.
Law No. 94 of 2015, which consists of 54 articles, defines the terms terrorist groups and terrorist acts. It enhances the penalties to which natural and legal persons may be subjected if convicted of promoting, financing, or aiding terrorism. It also sets forth new procedural rules for terrorism cases, including the interrogation of persons accused of such crimes. Moreover, it creates special courts to adjudicate terrorism cases.
1. What are some of the most controversial aspects of the new law?
Among the criticisms of the law is that the definitions of “terrorists” and “terrorist acts” are overly broad, which enhances the risk of abuse of powers by the authorities.
Article 1(b) of the law doesn’t actually give a specific definition of the term “terrorists.” Instead, it refers to article 1 of Law No. 8 of 2015 on “Terrorist Entities and Lists.” Under that article, a terrorist entity is defined as any association, organization, group, gang, cell or other grouping that, through any means, inside or outside the country, calls for the harming of individuals; the spreading of terror; or the endangering of the lives, freedoms, rights, or security of the people. The second paragraph of article 1 also defines terrorists as individuals who call for or involve themselves in harming the environment; natural resources; antiquities; the communication infrastructure; and land, air, or sea transportation; or harming or seizure of public or private funds, buildings, or properties. The article bans both individuals and organizations that call for or are involved in the obstruction of public authorities, judicial agencies or bodies, government interests, local clinics, places of worship, hospitals, academic institutions, science institutes or other public facilities, or diplomatic missions. Finally, article 1 prohibits individuals and organizations that call for or are involved in infringing on public order; endangering the safety, interests, or security of society; obstructing provisions of the Constitution and of laws; or harming national unity, social peace, or national security.
Another controversial provision of the law is article 2. The article was criticized by some scholars for using various terms and phrases in defining “terrorist acts.” Some have criticized the definition as being general, obscure, or vague. For instance, the definition includes terms such as “public order,” “social peace,” “national unity,” and “national security,” without providing a clear definition of such terms. Article 2 defines a terrorist act as the use of force, violence, and threats to intimidate Egyptians living at home or abroad, with the purpose of disturbing the public order, social peace, harming individuals, endangering their lives, restricting freedoms granted by the constitution, undermining the national unity and security, or an act that targets the environment, natural resources, antiquities, or public or private property. It also prohibits acts that might impede government authorities from exercising their duties, or damage places of worship or buildings belonging to diplomatic missions or regional and international organizations in Egypt.
The second paragraph of article 2 criminalizes planning and promoting terrorist acts aimed at the destruction of communication systems, databases, financial or banking systems, the domestic economy, energy reserve and strategic reserve of water, goods, and food supplies.
b. Law enforcement powers and immunities
Opponents argue that the law authorizes law enforcement agents to detain suspects in terrorism cases without a warrant for up to 24 hours for the purpose of questioning and interrogation, which, among other things, violates due process. (art. 40.) The general prosecution or the designated investigating authority has the right to extend the detention period to seven days. While it allows the suspect to contact his family or a lawyer during the detention period, the investigating authority has the power to prevent the suspect from contacting his family or a lawyer for the interest of the investigation. (art. 41.)
Article 8 affords law enforcement officials and members of security apparatuses immunity from prosecution for use of force while exercising their duties under the law or to protect themselves from eminent danger.
c. Expedited process for terrorism trials
The Egyptian government announced that the intent of article 50 is to guarantee an expedited trial process by creating special court chambers to adjudicate terrorism-related cases. Such court chambers will include two divisions: First Instance Courts, which will oversee misdemeanors; and Criminal Courts, which will handle felonies.
d. Restrictions on disseminating information on terrorism cases
The new law penalizes dissemination of information that contradicts official statements of the Egyptian authorities. Under this law, any information that differs from that provided by the government on the same subject may be labelled as “false information.” Another controversial provision is article 35 which imposes large fines (between 200,000 L.E. (about US$26,000) and 500,000 L..E. (US$64,000)) on individuals convicted of spreading false news or statements about acts of terrorism and terrorism trials. It imposes the same penalty on legal persons, such as newspapers or media outlets.
The law prohibits recording of trial proceedings in terrorism cases. Article 36 makes the recording, broadcasting of any visual or audio information, or taking of still photos of terrorism proceedings without first obtaining permission from the court handling the matter an offense, on conviction, punishable with a fine ranging from 20,000 L.E. (about US$2,500) to 100,000 L.E. (US$12,500).
2. What are some of the other crimes and their penalties?
a. Crime of promoting terrorism
The law criminalizes the direct and indirect promotion of terrorist activities and the use of violence. Article 28 bans the promotion of the use of violence and terrorism in the forms of publishing written articles, public speaking, and broadcasting propaganda materials for the benefit of terrorist groups. The same article makes the use of places of worship to promote the ideology of terrorists an offense punishable by a minimum of seven years in prison. Furthermore, article 29 criminalizes the promotion of terrorists’ ideology via the Internet. A person who establishes a website for the purpose of inciting and promoting terrorism and its ideologies, misleading security agencies, affecting the outcome of a trial, or exchanging and collecting information in an illicit manner about judges or police officials can be charged under this provision, and, if convicted, face five years of “strict imprisonment” (where the prison year will be the full 12 months instead of imprisonment for nine months out of the year).
b. Offenses for which the death penalty can be imposed
The law imposes the death penalty on individuals convicted of the following crimes:
1) killing another member of the same terrorist organization who decided to leave the group (art. 12.);
2) killing individuals who refused to join their organization (art. 12.);
3) participating in a terrorist attack on Egyptian soil (art. 14.);
4) killing law enforcement agents or members of their families (art. 27.); or
5) the use of a non-conventional weapon to carry out terrorist attacks (art. 23.).
For example, article 12 states that members of a terrorist group who force another individual to join their group will be, on conviction, punished by a period of life imprisonment. Under the same article, members of a terrorist group who kill an individual after he or she refuses to join their group, or who kill another member of the group who decides to leave it, will be punished by death. Under article 14, while collaborating with foreign entities to plan terrorist attacks in Egypt is an offense punishable by life imprisonment, a more serious form of the offense (actually carrying out the attack on Egyptian soil) is a capital offense. Likewise, article 23 imposes the death sentence on individuals who use non-conventional weapons to kill civilians. Finally, while injuring members of the police force or their families is an offense punishable with life imprisonment, causing the death of any of these persons is punishable by death. (art. 27.)
3. Can members of terrorist groups be pardoned under the law?
Article 38 of the law permits clemency for a member of a terrorist group if he or she reports to the authorities a terrorist attack during the planning stage or submits to the authorities the names of other members of the group who carried-out a terrorist attack after it had taken place.
4. What are the powers granted to the president under the law?
Under article 53, the president of Egypt may declare a state of emergency, impose curfews, and issue mandatory civilian evacuation orders for reasons of national security and public order. This article allows the president to declare a state of emergency if there are dangers resulting from a terrorist attack or an environmental disaster.
The state of emergency must not exceed six months. However, it may be renewed upon the approval of the majority vote in parliament. According to the same provision, the president has the power to extend the period of the state of emergency after obtaining parliamentary approval.