The Arrests of 20 September 2019: Massive Breaches of the Constitution, and Violations of Personal and Public Freedoms using Repressive Laws
Egyptian Commission for Rights and Freedoms (ECRF)
Legal Commentary
ECRF monitored massive violations of the right to peaceful protest, freedom of thought and expression, and the right to privacy based on unconstitutional laws, or even in violation of existing laws. This is based on our monitoring of arrests and stops, as well as the process of interrogation of the detainees by the Public Prosecution following the demonstrations that took place in different governorates during the past few days. Number of people arrested is almost 1500. The Public Prosecution pressed charges against approximately 962 people until now. Charges included frequently used accusation: involvement with a terrorist group in the execution of its purposes, joining a group to organize a demonstration without prior notification of competent authorities, establishing a social media website in order to disseminate the ideas of a terrorist group, and publishing and disseminating false news via social media platforms. These are mainly the accusations in case no. 1338 of the Supreme State Security Prosecution. These accusations are based on restrictive laws which do not conform with the Constitution like Anti-Terrorism Law of 2015 and protest Law of 2013, and some articles of the Penal Code.
Security forces waged a massive arrest campaign following the outbreak of anti- Sisi demonstrations in several governorates last Friday. Security measures taken included various unconstitutional violations including random stops and arrests, searches of pedestrians near main squares including forcing them to unlock their phones, reading their private messages and personal accounts on social media in flagrant violation of the inviolability of private lives of citizens including their electronic correspondences and phone calls which are constitutionally prohibited to be examined or confiscated except pursuant to a substantiated judicial order[1]. Also, arbitrary arrests, and random stops and searches contradict the rights to personal freedom, privacy, safety, and security which are not supposed to be violated via arrest, search, imprisonment, or restriction of freedom by any restriction except in cases of flagrante delicto, or pursuant to a substantiated judicial order necessitated by an investigation[2]. Moreover, conducting these stops, searches, and arrests particularly near main squares entail restriction and breach of the freedom of movement which is constitutionally guaranteed[3]. The campaign included breaking into houses and arresting a number of activists, politicians and leaders of political parties for no reason except their peaceful expression of their opinions, their political opposition or human rights activism. This included: labour rights activist, Kamal Khalil; Cairo University Professor, Hazem Hosny; Journalist and Former Leader of Al-Dostour Party, Khaled Dawood; human rights lawyer, Mahineur Al-Masry (who was kidnapped from in front of the building of State Security Prosecution in Cairo); and Cairo University Professor, Hassan Nafaa (after he left the University). This practice of breaking into and searching private homes without judicial warrant took place in several governorates: security forces broke into houses of citizens who filmed and broadcasted the protests (on FB) and documented the security response to these protests. These illegal measures terrorized safe citizens. They may not be described by anything less than repressive and contradictory to the provisions of the Constitution that guarantee the inviolability of homes and prohibit entering and searching them except pursuant to a substantiated judicial order[4],the right to safety and the state obligation to provide security and safety to its citizens[5], which also guarantee freedom of thought and expression, accessing, publishing and receiving of information, as well as expression in all forms of expression and publication.
It is worth to mention that the above violations of the Constitution, which included flagrant assault on personal liberty and sanctity of the privet lives of citizens, are considered in the Constitution of Egypt crimes with no statute of limitations for both civil and criminal proceedings, and in which victims may file a criminal suit directly without abiding by the general procedural rule that makes suing public officials an exclusive prerogative of the Public Prosecution. The Constitution also obliges the state to guarantee just compensation for those who have been assaulted [6].
The list of accusations to those arrested included; involvement with a terrorist group in the execution of its purposes, publishing and disseminating false news, using an account on social media to disseminate rumors, and unauthorized demonstration. These accusations are the ones usually used by the authorities in most cases of political and opinion-related nature. These cases are referred to trial courts pursuant to punitive provisions included in several criminal legislations entailing constitutional violations because of their enactment by presidential decrees during a state of emergency. This includes articles added to the amendment of the Penal Code in 1950s and 1960s, which were issued by the President of the Republic at that time and are still effective and used in referral to courts, in addition to provisions in legislations like Anti-Terrorism law[7] and Protest Law[8], which recently enacted when the People’s Assembly was not convening based on the state of necessity which authorizes the President to enact decrees that have the force of law in order to face an exceptional situation. The Parliament was supposed to review all these laws after its convention. This was formally done. However, the Parliament approved all these laws in sum without reviewing its accordance with constitutional provisions and international obligations. Thus, these laws are characterized by unconstitutionality on procedural grounds for violating constitutional standards of enactment.
It is worth highlighting that the above-mentioned punitive provisions are mostly characterized by its loose wording, and use of imprecise and inaccurate terms which lack constitutional and legislative standards of punitive provisions. Pursuant to these standards, criminal provisions should be clear and obvious so that they don’t become a trap for the accused. These standards were confirmed by various rulings of the Supreme Constitutional Court because of the gravity of imprecise wording of criminal provisions which violate the presumption of innocence[9], and entail restriction of principles, rights and freedoms protected by the Constitution and International Law, prominent among which is the principle of democratic republic[10], which obliges the state to abide by international standards followed by democratic states in guaranteeing public rights and freedoms, and subsequent principles including rule of law, supremacy of the Constitution, sovereignty of the people who are the source of all powers[11], and peaceful transfer of power[12]. These provisions also violate the right to personal freedom[13], freedom of thought and expression thereof via any form of expression or publication[14], free access to information,[15] and restriction of the rights to peaceful assembly, demonstration and protests which are guaranteed by the Constitution upon providing notification[16].
The above-mentioned punitive provisions suspend and restrict the rights and freedoms that are inherent to human person. The Constitution states that no law that regulates the exercise of these rights and freedoms may restrict them in such away as infringes upon their essence and foundation or reduce from them[17]. These provisions also contradict International Law, and provisions of international instruments ratified by Egypt, especially the International Covenant on Civil and Political Rights of 1966.
ECRF condemns the odious practices of security forces in the suppression of peaceful demonstrations, and assault on public freedoms during its campaign of stops, arrests, random searches and breaking into private homes without judicial orders. It calls upon investigation authorities to perform its role to achieve justice, abide by the Constitution, and refrain from referral of the accused to courts pursuant to false accusations and flawed legislations. It demands the release of all people arrested in the recent events.
[1] Article 57 of the Constitution.
[2] Article 54 of the Constitution.
[3] Article 62 of the Constitution.
[4] Article 58 of the Constitution.
[5] Article 59 of the Constitution.
[6] Article 99 of the Constitution.
[7] Law issuing the Anti-Terrorism Law no. 94 for 2015 enacted on the 15th of August 2015, published in the Official Gazette on the 15th of August 2015, and became effective since the 16th of August 2015.
[8] Law on the Regulation of the Right to Organize Public Meetings, and Marches and Peaceful Demonstrations no. 107 for 2013 issued on the 24th of November 2013, published in the Official Gazette on the 24th of November 2013, and became effective since the 25th of November 2013.
[9] Article 96 of the Constitution.
[10] Article one of the Constitutions.
[11] Article four of the Constitution.
[12] Article five of the Constitution.
[13] Article 54 of the Constitution.
[14] Article 65 of the Constitution.
[15] Article 68 of the Constitution.
[16] Article 73 of the Constitution.
[17] Article 92 of the Constitution.
