(New York, October 26, 2011) – Cabinet proposals to amend and implement Egypt’s 1952 “Law on Political Treachery” have negative implications for the country’s political freedoms and upcoming election, Human Rights Watch said today. In a televised interview on Dream TV on October 20, 2011, Supreme Council of the Armed Forces (SCAF) Maj. Gen. Mohamed al-Assar said that the military was studying the draft law, renamed “The Political Corruption Law.” Candidate registration for Egypt’s parliamentary elections, which will start on November 28, closed on October 24.

The law would allow the authorities to imprison anyone convicted of vaguely defined crimes of “political corruption” and to deprive them of the right to vote or run for office. Such a law would set the stage for mass political exclusion based on vague allegations of association rather than criminal responsibility, Human Rights Watch said. The overly broad provisions would also invite arbitrary restrictions by future governments on legitimate peaceful political activity.

“The new authorities have a legitimate interest in excluding corrupt and abusive former officials from determining Egypt’s future, but passing a law that will invite arbitrary exclusion is no way to go,” said Joe Stork, deputy Middle East director at Human Rights Watch. “Exclusion from voting rights needs to be on the basis of conviction after a fair trial for clear and specific crimes, not vague allegations of political corruption.”

New opposition parties have stated they want to exclude former members of the long-governing National Democratic Party (NDP) from running for parliament. They say they fear that former party members who relied on patronage and local prestige to win seats will dominate the 30 percent of parliamentary seats reserved under the newly decreed electoral law for individual candidates.

In recent months these parties have called for the implementation of the “Treachery (ghadr) Law,” no. 344, passed in December, 1952, and implemented during the presidency of Gamal Abdel Nasser. It sets out penalties, including imprisonment and deprivation of the right to vote and run for office, after conviction for involvement in “the corruption of political life by harming the interest of the country.”On August 17 and October 6 the cabinet approved an amended draft of the law and submitted it to the SCAF for ratification.

On August 9 Justice Minister Abdelaziz al-Guindy, at the first meeting at the Justice Ministry of the Coordinating Committee to Combat Corruption, said that “political corruption is a threat greater than financial corruption” and that the committee would discuss re-activating the Treachery Law.

On August 10 the cabinet published the draft law on its official Facebook page and on August 17 the cabinet stated in its meeting minutes that it had approved the amended version “after it had been publicly debated” and that “the minister of justice had confirmed that the Treachery Law was still in force since it had not been cancelled by any other law.” It said “that a period of application of the law could be determined but this would not prevent its application at a future date if the circumstances stipulated in the law apply.”

On October 1, in a concluding statement issued after a meeting between the armed forces chief-of-staff, Sami Anan, three other SCAF generals, and the heads of 13 political parties, the SCAF announced that it would “study depriving NDP leaders who contributed toward corruption in political life before January 25 of political work for a period of two years.”

The following day, the daily Al-Masry al-Youm quoted an official saying that the Treachery Law would not apply for the upcoming parliamentary elections except in cases of people convicted by courts of crimes. But on October 3 an unnamed military source told Al-Dustour that the SCAF has been studying proposals submitted by political parties and would focus on excluding former NDP leaders, members of parliament who had seats in 2005 and 2010, and former members of the local councils. Egypt’s state newspaper Al Ahram reported on October 16 that the SCAF would issue the new law within hours.

“There is a big problem with any law that singles people out for punishment solely on the basis of group affiliation instead of individual actions,” Stork said.

In a speech on February 12, Gen. Mohsen Fangary, a member of the SCAF, declared that Egypt would abide by its international obligations under the treaties it had signed. Those international treaties include the International Covenant for Political and Civil Rights (ICCPR), which obligates countries to protect and ensure the right to fair trial and freedom of expression.

As a party to the ICCPR, Egypt is obligated to allow its citizens equal opportunity to compete as candidates in elections without being subject to “unreasonable restrictions.” The covenant requires that elections guarantee the “free expression of the will of the electors.” In General Comment 57, the United Nations Human Rights Committee provided an authoritative interpretation of article 25 on the right of citizens to take part in the conduct of public affairs, to vote, and to be elected. The committee found that “the right of persons to stand for election should not be limited unreasonably by requiring candidates to be members of specific parties.”

“Egypt’s military and the caretaker cabinet should at the very least do no harm in this transitional period and ensure that new laws are in line with international law,” Stork said. “Adding repressive laws to those already on the books is only an extra burden on Egypt’s transition.”

Recommendations

Human Rights Watch opposes laws that penalize belief, peaceable expression, or association. Countries that have suffered under dictatorship and are struggling to build democratic societies in which individual rights are respected have a legitimate concern that these efforts could be undermined by agents of previous dictatorships or by people whose past conduct in office reflected the criminal, repressive, or corrupt character of those dictatorships, Human Rights Watch said.

Human Rights Watch supports efforts to see to it that all those holding positions of influence and power in government carry out their duties in a manner that is compatible with the development of democracy and the establishment of the rule of law. At the same time, the means pursued to achieve these ends should themselves reflect respect for individual rights.

In determining eligibility to hold positions of political authority, Human Rights Watch calls upon the Egyptian government to:

Refrain from basing judgments on eligibility solely on past or present associations. In the case of affiliations with organizations considered to be acting or to have acted in a criminal, corrupt, or repressive manner, the authorities should require clear and convincing evidence that the individual in question knowingly and actively furthered criminal practices of the organization;

Establish the opportunity for an individual facing such charges to be provided with the evidence against him or her and to obtain a fair hearing on such charges before an impartial tribunal; and the right to appeal the determination of that tribunal to the regularly constituted courts;

Establish accountability measures for past crimes of corruption or involvement in human rights abuses through a transitional justice process that comprehensively addresses longstanding abusive practices in a transparent and fair manner.

Provisions of the Draft Amended Treachery Law

Law 344 of 1952 defines treachery in article 1 as follows:

This law applies to all those who were public officials or ministers or members in one of the houses of parliament or local councils or in general any person who was tasked with public service or had an official role and committed one of the following acts:

Acted with the purpose of corruption of political rule or political life by harming the country’s national interest or cooperating in this or failing to respect laws.

Harmful interference with public good in the conduct of affairs without formal authorization to intervene or to accept intervention.

Terms such as “abuse of political life” and “harmful interference” are too vague to constitute crimes, Human Rights Watch said.

Article 1 also includes some provisions that can legitimately amount to corruption crimes but are best dealt with in separate legislation focused on such activities and not conflated with group affiliation, Human Rights Watch said. These provisions include:

Abuse of influence in order to obtain special privileges for himself or for others from any authority or company or government institution;

Abuse of influence to obtain a job in government or a position in a public institution for himself or for others;

Abuse of influence to conduct acts to directly or indirectly influence the price of real estate or goods or crops or other or currency or stocks... in order to benefit himself or others.

The proposed cabinet draft amends three provisions of the 1952 law and provides an additional set of political sanctions in article 2 against those convicted of the crime of “treachery”:

Article 2: without prejudice to the criminal and disciplinary stated penalties, treachery shall be punished by one or all of the following measures:

Dismissal from public office.

Denial of membership in the People’s Assembly or the Shura Council or the local councils.

Deprivation of the right to vote or to be elected to any of the bodies stated in b) for a period of five years from the date of conviction.

Deprivation of the right to hold public office for a period of five years from the date of conviction.

Deprivation of the right to belong to any political party for five years from the date of conviction.

Deprivation of membership in any board of directors of public institutions for a period of five years from the date of conviction.

The cabinet draft also made some improvements to the 1952 law, providing that the criminal court will have sole jurisdiction over these crimes, instead of military courts, as in the original provisions, and that due process guarantees in the code of criminal procedure will apply. Article 4 of the draft stipulates that only the public prosecutor may refer “treachery” cases to court, after conducting an investigation. Article 2 of the draft states that courts can order those convicted and their companies to pay compensation to those harmed by corruption.

International Law and Political Participation

In its interpretation of article 25 of the International Covenant on Civil and Political Rights (ICCPR) on the right to vote, the UN Human Rights Committee states that the grounds for the deprivation of the right to vote have to be “objective and reasonable” and “if conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”

The UN Human Rights Committee has on six occasions found Uruguay in violation of the right to take part in the conduct of public affairs because of the Acto Institucional No. 4 of 1 September 1976, which banned all candidates for elected office in the 1966 and 1971 elections from all political rights for a period of 15 years. In the case of Jorge Landinelli Silva et al. v. Uruguay, the committee dismissed the state’s argument that a derogation under a state of emergency justified these measures and said that “by prohibiting the authors of the communication from engaging in any kind of political activity for a period as long as 15 years, the State party has unreasonably restricted their rights under article 25 of the Covenant.” In the May 11, 2000 decision by the African Commission in Sir Dawda K Jawara v. The Gambia, the Commission found that “the imposition of the ban [to take part in any political activity] on former Ministers and Members of Parliament is in contravention of their rights to participate freely in the government of their country provided for under Article 13(1) of the Charter.”

The European Court on Human Rights has, however, allowed some discretion to new democracies emerging from dictatorship to place limited restrictions on the right of former regime members to stand for office, as long as the period of time is proportional and subject to judicial review. In Melnychenko, the Court observed that stricter requirements may be imposed on eligibility to stand for election to Parliament than is the case for eligibility to vote.