(New York) – The military prosecutor’s decision to prosecute the youth leader Asamaa Mahfouz for “insulting the military” is a serious escalation of efforts by military leaders to silence critical voices, Human Rights Watch said today.

The prosecutor has this week alone summoned both Mahfouz and Maha Abu Bakr, a lawyer, on charges related to speech protected by the right to freedom of expression. They are among a large number of protesters and other civilians facing trials in Egypt’s military courts. Civilians should not be prosecuted before Egypt’s military courts, which do not meet basic due process standards, Human Rights Watch said.

“The decision to try Asmaa Mahfouz is a major attack on free expression and fair trials, using the same abusive laws the Mubarak government used against its critics,” said Joe Stork, deputy Middle East director at Human Rights Watch. “The military is using her to silence potential critics, sending the message that criticizing the current military government will land them in jail.”

The Mahfouz case is the latest in a series of moves prosecuting critical expression by the military, which is increasingly setting narrower and narrower limits on what it permits, Human Rights Watch said.

Mahfouz, a former leading member of the April 6 Youth Movement, received a summons at her home on August 13, 2011, to appear before the military prosecutor the next day for questioning. The military prosecutor questioned her for over three hours about her comments on Twitter and media interviews during protests on July 23 in which she criticized the military for failing to intervene to protect protesters.

He then charged her with “calling for threats to social peace,” “spreading false information,” and “insulting the military,” but allowed her release on 20,000 Egyptian pounds ($US3,400) bail, an extremely high sum for most Egyptians. On August 16 Egypt’s official news agency MENA quoted a military justice official saying the prosecutor had decided to refer Mahfouz’s case to court on charges of insulting the military, dropping the other charges.

On August 14 the head of the military justice system, Gen. Adel Morsi, in a news release, started by affirming the important role of expression in society and then invited the public to look at Mahfouz’s Facebook profile to see for themselves “whether [her comments were] an opinion or an inappropriate violation of the law and incitement.” The comment in question, which Mahfouz posted on Twitter and Facebook, was: “If the judiciary doesn’t restore our rights then nobody should be surprised if we then see armed groups and assassinations taking place... if there is no law and no justice system, no one should be surprised.”

“Asmaa Mahfouz’s comments reflect her concerns about the need for justice and are fully protected by freedom of expression,” Stork said. “Yet the military is prosecuting her under a blatantly abusive law. This charge should be dropped immediately.”

Abu Bakr, a lawyer representing victims in the Mubarak trial and a Kifaya activist, received her summons to appear before the military prosecutor on charges of “insulting the military” on August 16. During the questioning, the prosecutor showed her video footage from the July 23 demonstration in Abbasiya, Cairo, of a protester who, the prosecutor told her, was “insulting” the military. The prosecutor dropped the charges against her when he realized the footage was not of her. Lawyer Ahmed Ragheb told Human Rights Watch that this footage was not filmed by the media, which would suggest that the military is filming protesters during demonstrations.

Military courts are currently trying numerous protesters. In an August 15 case, six protesters faced charges of “insulting the military” before a military tribunal for chanting “antagonistic” slogans about Field Marshal Mohamed Hussein Tantawi, the de facto ruler of the country, in addition to charges of assaulting a police officer. The military court sentenced Hassan Bahgat to six months in prison in another case, 3779/2011, for insulting the military in Tahrir square on August 6.

Military courts are also currently trying groups of protesters arrested in Cairo in late June and early August around Tahrir Square and in Alexandria on July 22. These include a group of 43 protesters arrested during a June 28 and 29 protest outside the Interior Ministry in downtown Cairo. One of them is the activist Loai Nagaty, whom military police arbitrarily arrested on June 29 on Falaky Street, near the Interior Ministry. They detained him for eight days in the military prison but then released him on health grounds. He faces charges of “assaulting a public officer” and “causing disturbance.” The next session of his trial is scheduled for August 23.

Military courts have sentenced at least 10,000 civilians since January 2011 after unfair proceedings, Human Rights Watch said. All of them should be retried before regular civilian courts.

The Military’s Red Lines

The Mubarak government frequently used overly broad provisions in the penal code to crack down on legitimate criticism of the government’s human rights record or criticism of the political situation, trying editors, opposition leaders, and activists on charges of “insulting the president” or “insulting public institutions.” The military government and courts are using the same provisions.

On April 11 a military court sentenced a blogger, Maikel Nabil, to three years in prison for “insulting the military establishment,” under article 184 of the penal code, and “spreading false information,” under article 102. The evidence presented against him consisted solely of a CD with details of Nabil's blog postings and commentary on Facebook over the previous months. Nabil’s lawyers have appealed his sentence but the court has not scheduled a date to hear his appeal.

Military prosecutors have summoned at least seven activists and journalists, including Mahfouz, to question them on charges of criminal defamation after they publicly criticized the Supreme Council of the Armed Forces (SCAF), the military leadership, or alleged abuses by the army. The labor activist and blogger Hossam al-Hamalawy was summoned after he said on television that he held the head of the military police, Gen. Hamdy Badeen, personally responsible for acts of torture by the military police.

A member of the military leadership told Human Rights Watch in June that military prosecutors “offered [Hamalawy and the others] American coffee and discussed the different issues with them. This did not take longer than one hour.” On another occasion, on June 19, the military prosecutor summoned a journalist, Rasha Azab, and an editor, Adel Hammouda, for questioning about an article Azab had written about alleged human rights abuses by the military.

A Human Rights Watch delegation met with a member of the SCAF on June 6 and voiced concern about the chilling effect that summoning people on criminal charges has on freedom of expression generally. One of the SCAF officers at the meeting responded:

We do not question everyone for criticizing the military, we only ask those who accuse, who defame the military or those who spread inaccurate information in order to spread suspicion about the armed forces to present their evidence. We summoned four journalists only to question them about their information and their sources since [what they said/wrote] involved the behavior of the armed forces and has serious implications for the perception of the armed forces.

In his August 14 news release Morsi said that there were “many who abused freedom of expression in the media in order to promote armed militias' plans for assassinations,” referring to Mahfouz’s tweet, and to “cross the limits of freedom of expression to insult and defame the armed forces and the SCAF.” He added that the SCAF does not limit freedom of expression but only investigates what Egypt’s penal code prohibits and that the military justice system was conducting the investigation based on the jurisdiction granted by the Code of Military Justice.

The broad jurisdictional basis of the Code of Military Justice is incompatible with international human rights standards because it allows for military trials of civilians without any subject-jurisdiction limitations, Human Rights Watch said.

Penal Code Is Incompatible With International Law

The United Nations Human Rights Committee, the expert body that provides authoritative interpretations of the International Covenant on Civil and Political Rights, to which Egypt is a party, states categorically in its recently-issued General Comment No. 34, on Article 19 on Freedom of Expression, that, “States parties should not prohibit criticism of institutions, such as the army or the administration.” By this standard, article 184 of the Egyptian penal code, which criminalizes “insulting the People’s Assembly, the Shura Council or any State Authority, or the Army or the Courts,” is incompatible with international law and should be amended accordingly, Human Rights Watch said.

Egypt’s penal code includes numerous provisions that violate international law by providing criminal penalties of imprisonment for “insulting” public officials and institutions, including the president (article 179), public officials (article 185), “foreign kings or heads of state” (article 180), or foreign diplomats (article 182). The Human Rights Committee further elaborated in General Comment 34: “The mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.”

“Egypt needs to urgently review the legal framework which Mubarak used for years to silence his critics,” Stork said. “It is unacceptable for the military to be using these laws to clamp down on speech, especially as elections near.”