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This justice is not blind: New amendments to terror laws

Parliament approved amendments to the Law to Regulate Terror Group and Terrorist Lists and the anti-terrorism law on February 24.

The amendments have expanded the types of organizations that can be classified as terror groups beyond political organizations like the Muslim Brotherhood to include companies, associations and media outlets. The amendments target funding for terrorism, broadening the criteria for seizure and freezing of assets, funds and property of individuals classified as terrorists, including assets not used in terror-related activity. There are also new measures that can be taken against individuals placed on the terror list, including freezing their membership in syndicates, boards of companies, associations, and government institutions, barring them from running for local councils or “practicing any community or promotional activities,” and termination from government jobs or contracts with public sector companies. New changes also effectively eliminate any basis for appeals of terror list rulings from criminal courts to the Court of Cassation.

The government’s explanatory memorandum states that the purpose of said amendments is to rectify the shortcomings which have been revealed in the implementation of both laws — in response to an evaluation of Egypt’s legal system by the Middle East and North Africa Financial Action Task Force — and out of a need to comply with international and regional standards to combat money laundering and terror financing.

However, several judges and rights activists view these amendments as part of authorities’ efforts to ramp up the seizure of funds and properties of not only Islamists, but political dissidents in general, with as few legal obstacles as possible.

Debate in Parliament 

Parliamentary Speaker Ali Abdel Aal received a government-drafted bill proposing amendments to the Law to Regulate Terrorist and Terror Group Lists, and referred it on January 26 to a joint parliamentary committee consisting of the Constitutional and Legislative Affairs Committee and the Office of the Defense and National Security Committee.

The next day, the Defense and National Security Committee held a meeting to discuss the amendments that was attended by a delegate from the Justice Ministry and two delegates from the Interior Ministry, one of whom represented the National Security Agency.

A few days later, on February 9, the government submitted another bill proposing amendments to the anti-terrorism law. Abdel Aal promptly referred the new bill to the Constitutional and Legislative Affairs Committee, which in turn approved it on the same day and submitted it back to the speaker.

The following day, Abdel Aal held a discussion of both bills in the general assembly, in which he expressed reservations on the inclusion of TV channels and other media outlets in the definition of terror groups, explaining that it would contravene constitutionally enshrined press freedoms. Moreover, “placing so much emphasis on satellite TV channels in the law will provoke international criticism of Egypt at UN’s Universal Periodic Review of human rights,” said the speaker.

He later explained that: “the current definition of a terror group already implicitly covers satellite TV channels and broadcasters. It is better not to explicitly mention them in the law in order to avoid running afoul of press freedoms, the Constitution and international standards.”

His remarks were made in response to Chairman of the Constitutional and Legislative Affairs Committee, Bahaa Eddin Abu Shaqa, who insisted that TV channels and social media should not be excluded from the new definition, as they are tools of “fourth-generation warfare.” The chairman of the Human Rights Committee, Alaa Abed, was another proponent of including satellite TV channels established by individuals or groups in the definition.

Furthermore, Abdel Aal took out some of the measures that the government proposed should be imposed in case of a terror classification, most significantly termination from government jobs and deprivation of government subsidies. His reasoning was that the Law to Regulate Terrorist and Terror Group Lists is primarily meant to govern the interim period prior to a final judicial ruling on the terrorist classification for an individual or group.

The remaining changes were approved exactly as they were proposed by the government and the amendments were published later, on March 3, in the Official Gazette.

What has changed?

President Abdel Fattah al-Sisi had signed into effect the Law to Regulate Terrorist and Terror Group Lists in February 2015. The aim was to create an Egyptian register of individuals and groups deemed terrorists by the state. Later that year, in August, he ratified the Counter-Terrorism Law — just a month and a half following the assassination of then-public prosecutor Hesham Barakat. Both laws have been amended several times by the president since then.

The last batch of amendments is the third one to the Law to Regulate Terrorist and Terror Group Lists.

In addition to making companies and associations eligible for the terrorist classification, the law broadens the definition of funds. The new definition includes “petroleum and other natural resources,” which were not mentioned in the old version of the law. It also identifies several forms of wealth, such as “legal documents and instruments,” including “digital and electronic bonds and deeds,” with a clause stipulating, “regardless of the means by which they were acquired” In the amendments, funds now include “all rights pertaining [to digital and electronic bonds and deeds], including bank credit, traveler’s checks, banker’s checks and documentary credit, in addition to any interest, profit or other source of income that may result or originate from such funds or assets.”

The old definition of funds referred to “all financial assets and economic means — including holdings of any kind, whether material or moral, movable or immovable; national and foreign currency; securities and commercial papers; and any form of bonds and deeds to all of the above.”

One amendment to the Law to Regulate Terrorist and Terror Group Lists removes a caveat, “whenever used to practice terror activities,” which previously limited the kind of funds that could be frozen.

Other implications provided for in the amendments, in the case of individuals, include having their membership frozen in a range of organizations, including sporting clubs, any organization in which the state is a shareholder, and “any organization dedicated to the public good.” This is in addition to the measures currently in force, which include the loss of “reputability” — a requirement for obtaining and holding government jobs, public office and membership in Parliament.

The definition of funds in the Counter-Terrorism Law has also undergone similar changes. The definition of funding terrorism as an offense was broadened to apply to “any collection or receipt of funds, other assets or information for any terror activities, whether individual or collective, organized or unorganized, within the country or abroad, directly or indirectly, regardless of [the] source or the means by which[they are] obtained.”

The new definition also criminalizes “providing [a terrorist] with weapons, documents or other items” and “knowingly providing [a terrorist] with any other means of assistance in the form of support, funding or travel, even if not directly related to the act of terrorism.”

Who is the target?

“The state has a database which shows members of the Muslim Brotherhood plotting against it in syndicates, universities and other state bodies,” says Legislative Committee Secretary Ehab al-Tamawy. The Constitution, Tamawy tells Mada Masr, requires the authorities to combat terrorism in all its forms and extinguish its financing, and keep Egyptians safe; as well as comply with international and regional agreements and accords pertaining to counter-terrorism and money laundering.

But Hassan al-Azhari, a lawyer at the Association for Freedom of Thought and Expression (and Mada Masr’s legal counsel), views the amendments as primarily targeting non-Islamist political dissidents, and secondarily aiming to facilitate access to funds that are at the disposal of Islamists. The speaker and several members of Parliament were against including broadcasting channels and media websites as potential categories of a terror groups, yet they acknowledge that the amendments target these categories, Azhari tells Mada Masr.

Stretching the definition of a terror group to apply to companies and, by implication, online media outlets which these companies own, is meant to ensnare dissidents beyond the Muslim Brotherhood, says Azhari.

Rights lawyer Negad al-Borai partially agrees with Azhari. However, he has a different interpretation as to the priorities. Borai believes that the state primarily aims to resolve the issue of the Muslim Brotherhood’s funds by depositing them into the state treasury as quickly as possible. For that, it needs to circumvent the restrictions imposed by the Court of Cassation on the terror classification process, from which follows the seizure of funds and property of dissidents, especially Islamists.

The Public Prosecutor and the Criminal Court rely solely on the information collected by the National Security Agency in terrorism cases, pressing charges without evidence, Borai explains. The Court of Cassation usually overturns these terror classifications. As a result, Islamists’ money has been in legal limbo since 2013, and the state has been unable to deposit it into the treasury. This is why, according to Borai, the caveat limiting the types of funds eligible for seizure was removed. Once the Public Prosecutor orders that a person or group be designated as terrorist based on information collected by the National Security Agency, all funds may be seized.

A judicial source at the Court of Cassation concurs. “The amendments give legal cover to infringe upon the inviolability of defendants’ funds,” the source says, and give the Interior Ministry and Public Prosecutor free rein. In the past, the source — who is one of the deputy presidents of the Court of Cassation — says, whenever the Court of Cassation finds a loophole through which it is able to overturn the classification of a defendant as a terrorist and block the consequent seizure of their money, the government resolves to bolster terror-related laws with new provisions.

For example, the source elaborates, the Court of Cassation had overturned criminal court rulings adding a defendant to the terror list, citing the fact that they rely solely on information collected by the NSA. This was done in compliance with Article 3 of the Law to Regulate Terrorist and Terror Group Lists, which required the Public Prosecutor to support its request with “interrogation [outcomes], documents, investigations or information.” On April 27, 2017, the president signed into law an executive-proposed amendment diluting what constitutes substantiating material, thereby robbing the Court of Cassation of the power to reject — as insufficient evidence — information collected by the NSA.

Khaled al-Masry, the attorney of several individuals on the terror list, notes that under the pre-amended version of the law, funds do not include personal property, such as the defendant’s residence, car, gold accessories and cash found at home; they only include bank accounts and fixed assets (companies, shops and investments). But the latest amendments, Masry says, place all of that at the disposal of the authority conducting the seizure.

Seizure of funds effectively means confiscation, says Masry. But he explains that, while the law limits the duration for which funds belonging to people on the terror list may be kept in custody to five years, it does not spell out a mechanism for the recovery of said funds afterward.

Thus far, the authorities have been able to seize the funds of defendants facing charges related to terrorism and block the defendants and their families from disposing of them, says Masry. However, he explains, they have not been able to deposit that money into the treasury because, for most such defendants, not all levels of litigation have been exhausted and no irreversible guilty verdicts have been issued.

Under the latest amendments, criminal courts would be able to uphold terror classification requests by the Public Prosecutor, and the Court of Cassation would have no choice but to give in, as there are effectively no more provisions that allow it to hear appeals for or overturn such rulings passed by criminal courts. The Committee for the Seizure, Enumeration, Management and Disposal of the Assets of Terrorists and Terror Groups would then be clear to dispose of funds previously belonging to terror groups.

Ultimately, for Borai, the issue is not with the provisions of the law, but with those who use it against non-terrorists, Borai says.. Egypt, according to him, does not implement the law in good faith. When investigative and arresting authorities — followed by the Public Prosecutor and criminal courts — charge dissident figures such as Abdel Moneim Abouel Fotouh, Hassan Nafaa, Hazem Ahmed Hosny, Alaa Abd El Fattah and others like them with membership in a terror group or assisting a terror group in its endeavors.

Borai referenced an expression that roughly translates to the saying “justice is blind” — meaning that “the law is deployed for the general public, not specifically targeted at anyone,” Borai explains. “But not anymore.”

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