30 May 2017 :

Workshop on development of punitive legislations in light of the constitutional entitlements

Cairo 15-16 May 2017

Concluding Statement and Recommendations

       A national workshop on ‘ Development of punitive legislations in light of the constitutional entitlements’ was held in Cairo on 15-16 May 2017 through the initiative of the Arab Organization for Human Rights (AOHR) in partnership with the National Council for Human Rights (NCHR) and Egyptian Organization for Human Rights (EOHR). This relates to the activities of the international project on ‘Reduction of instances of death penalty, especially in the context of crises and combatting terrorism’ implemented by the AOHR in cooperation of Hands Off Cain (main partner), Arab Institute for Human Rights(AIHR) (Tunisia), and Somali Woman Agenda (SWA), with the support of the European Union. The project aims to reduce the aggravated penalties in the Arab region. The first phase shall target Tunisia, Egypt, and Somalia.   

   Messrs. Muhammad Fayek, President of the National Council for Human Rights, Alaa Shalaby, Secretary General of Arab Organization for Human Rights, Hafez Abu Seda, President of the Egyptian Organization for Human Rights, Alaa Abed, Chairman of Human Rights Committee, Egyptian House of Representatives, and Ms. Elisabetta Zamparutti, President of Hands Off Cain (HOC), Italy, and MP Margaret Azaar, House of Representatives, inaugurated the workshop.

      Seventy participants, mainly parliamentarians, and legal practitioners, including former judges, attorneys, criminal law professors, Islamic clerics, civil society associations in the field of human rights, women’s and children’s rights, specialist researchers, sociologists, physiatrists, writers, and media men from Cairo and governorates northern and southern Upper Egypt and Delta, took part in this workshop.

     Some lawyers and human right activists from Kuwait, UAE, Jordan, and Syria, attended as “observers”, as well as representatives from the Italian and German embassies in Cairo.

      The workshop addressed the following issues: an overview of the constitutional entitlements in the area of punitive legislations relative to the orientations and obligations, guarantees and measures; studies on the death penalty in the legislation and in practice, from the perspective of media and Islamic Law; measures and implementations to confront the current challenges, especially in the context of fighting terrorism; study of the social, economic, and psychological contexts related to the imprisonment and detention conditions in the punitive facilities as well as the conditions of the special segments during investigation and trial; and implementation of the penalty, across six sessions.

       After two days of the in-depth detailed discussions, that covered the thematic and technical issues, through a dialogue that enjoyed freedom, scientific generosity, experience, and pursuit towards doable outputs that respond objectively to the basic needs and current challenges, the participants agreed on the following:  

• This workshop represents one in a series of an ongoing dialogue that has to be constant and intensive to adopt the concept of community consultations on diverse legislations, and call for expansion of the scope of this dialogue to include all stakeholders. The participants commended the general conference on amendment of the Criminal Procedures Law organized by the Presidency of the Council of Ministers through the Higher Committee for Legislative Reform in January 2017. This resulted in a positive draft law that the Council of Ministers adopted two days before the workshop in preparation for referral to the House of Representatives.
• Emphasis on the inevitable observance of the Constitution as a primary reference for legislation and as a social contract. In addition, the legislative authority is not absolute; all legislations have to comply with the Constitution and act thereupon. It is worth mentioning that the legislative responses to the urgent challenges should not violate the Constitution. It is essential to enact comprehensive and holistic legislations. The urgent partial legislations cannot disrupt the need to issue expeditiously comprehensive legislations, especially the organic laws that effectuate the Constitution.
• This workshop synchronizes with expediting the legislative efforts, assuring the need for these efforts through the intensive efforts of the House of Representatives and the presidential decree to re-form the Higher Committee for Legislative Reform a few days before the workshop.
• Egypt, after the political transition period in the wake of 2011 and 2013 revolutions, is experiencing a legislative transition period by virtue of dozens of primary legislations complementary to the Constitution, and numerous obligations to effect wide-scale legislative amendments of several existing laws.
• The Constitution represents a major driver to respect human rights and public freedoms as it explicitly adopts the international human rights standards through its diverse provisions, and even enriches some aspects according to the best practices.
• The Constitution stipulates in Article (93) that the international conventions that Egypt ratified constitute part of its national legislations which stresses the importance of alignment of the existing and potential legislations with the Constitution and the international human rights standards.
• The Egyptian Constitution subject to referendum in 2014 has constituted a historic leap, be it at the level of major principles adopted or the guarantees it secures to maintain human rights; in the core comes the right to a fair trial.
• The need to expedite the promulgation of the Judicial Authority Law in the context of enforcement of the Constitution and according to the set guarantees; and through a wide-scale community consultation that shall enable the well-established judicial authority to upgrade its structure, manage its affairs, observe the efficiency criteria, entrench citizenship rights, and secure equality and equal opportunities.
• The significance of the pivotal role of the judicial authority – through its different structures and agencies- in enforcement of these principles. The participants contemporaneously commended the historical contribution of the Egyptian legal jurisprudence to the development of punitive legislations as of the foundation of the modern state in Egypt.
• Recognition of the grave threat of terrorism phenomenon at all levels; and that the control of terrorism is the original state responsibility to protect the society. This shall be done professionally and efficiently under the rule of law and its tools; and within a context that secures the citizens’ rights and public freedoms that the Constitution uniquely and decisively secured.
• The Constitution met the needs of Egyptians with respect to a judicial system that guarantees the requirements and criteria of a fair and equitable trial; and secures the judicial control on the work of the executive authority to underline the principle of legitimacy and rule of law. However, it is noted that though three years had lapsed ever since the adoption of the Constitution, the legislations had not been amended in a manner that keeps abreast with the constitutional entitlements and realizes the citizens’ aspirations.
• Given the efforts of the competent agencies towards the development of the punitive legislation system to meet the constitutional entitlements, especially the efforts of the Higher Committee for Legislative Reform, Human Rights Committee at the House of Representatives, National Council for Human Rights, and Civil Society Organizations (CSOs), it is noted that the legislative development faces an array of challenges. These challenges entail the slow litigation measures, legislative ‘flaccidity’, issuance of selective legislations, as well as the lagging behind of some laws away from the level of development within the community; laws that contradict with the standards enshrined in the Constitution and the international conventions that Egypt ratified; and the judicial principles that the Egyptian judiciary has entrenched in its rulings.
• Concern about the excessive number of legislative provisions and crime patterns that allow expansion in the implementation of death penalty. It is urgently needed to address this issue as follows: (i) reduce the number of legislative provisions in a manner that restricts the death penalty to most atrocious and hazardous crimes; (ii) reinforce the guarantees in the trials for crimes that may lead to the death penalty of convicts, especially that the penalty does not lead to deterrence, including the crimes of terrorism that may take the form of suicide explosions. If these explosions occur, they are irreversible and the impact of which cannot be averted.
• Appreciation of the key role of the Court of Cassation in securing the justice of trials, particularly towards the aggravated and severe penalties, paramount of which is the death penalty. Appreciation of the role and impact of Fatwa Council in some typical cases, in addition to the role of the Presidency in ratification of the rulings and the potential use of its constitutional and legal competencies to mitigate the sentence.  
• Concern about the expansion in the scope of preventive custody for defendants under investigation and trial in spite of the efforts exerted by various concerned institutions given the economic, social and psychological effects of such custody as well as the extra burden borne by the security institutions.

 In light of the discussions, exchange of ideas, and consensus of opinion, the participants called for the following:

• Building the modern state in Egypt requires adaptation with the provisions set forth in the Constitution and punitive legislations, taking into account the international obligations of Egypt, especially what pertains to international human rights standards.
• The urgent need for legislative amendments that lead to refining the legislative provisions and replace the obsolete provisions with new ones in consistency with the new reality in the country based on what the Constitution adopted to build modern Egypt.
• Adoption of the philosophy of punitive laws according to the fundamentals incorporated in the punitive systems; securing that the laws are sustainable and express the community and state needs, based on a fine balance that exceeds temporary reactions and needs.
• Response to the community need and re-arrangement of the legislative agenda to move towards the relevant priorities to provide justice guarantees at the procedural and thematic levels; issue the laws set forth in the Constitution, mainly, review of penal codes and counter terrorism laws.
• The Public Prosecution and judicial entities to implement the preventive measures prescribed in the Criminal Procedures Law in lieu of the preventive custody.
• Expansion of the scope of the parliamentary consultations during the discussion of the draft law concerning the amendment of Criminal Procedures Law to strengthen the diverse guarantees in investigations and trials; meet the constitutional entitlement for litigation at two degrees in felonies; mitigate preventive custody measures; set a ceiling for the duration of preventive custody; adequately compensate those who are acquitted; secure protection for witnesses and informants; use alternative measures , such as house arrest; and regular judicial review of travel and mobility prevention measures.
• A general conference to review the Penal Code and the relevant laws to guarantee the participation of all community stakeholders; recourse to expertise in criminology, sociology, medicine, and psychiatry; and examine and adopt the international best practices. All this shall consider the new jurisprudence in the punitive philosophy and the alternative penalties in lieu of freedom restrictive penalties, especially in simple or civil offences, and other crimes that do not necessarily require restriction of freedom.
• Promotion of the right to access justice for women, children, persons with disability and other segments that require care.
• Expeditious issuance of a law that protects witnesses, informants, and
• Benefit from the international experience in protection of victims’ rights, particularly with the increase in the number of victims of terrorist crimes.
• Launch of the march of community consultations to build consensus on the Transitional Justice Law as stipulated in the Constitution.
• Expeditious amendment of the National Council for Human Rights Law by virtue of the constitutional entitlement, in a manner that guarantees expansion of its mandate in consistency with its position, and autonomy; and facilitates shouldering its responsibility, including the legislative aspect, its regulatory role, and maintenance of its prominent international position (Class A).
• Involvement of civil society organizations in the current dialogue and consultations about development of the punitive legislation system as the CSOs are capable of expressing the community concerns and aspirations. This shall provide wider horizons for success and promote national consensus to meet the human rights entitlements set forth in the Constitution as well as the international obligations that conform to Egyptian specificity; and support the civil state and move towards democracy.
• Attending to the role of media in their different forms and channels to undertake their essential role in developing the community discussion on the punitive legislation system according to the professional rules that govern constructive dialogue, given that media help formulate the public opinion, and express the community trends, opinions and interests.
• The development of punitive legislations necessitates rehabilitation of the key actors in the justice system through promotion of their technical efficiency or provision of the necessary financial resources to meet the requirements of the desired legislative development. This entails as well capacity building of law enforcement officers and public service employees to maximize the impact of potential legislative developments and secure proper implementation.
• The need to effectuate all the provisions of the Child Law to realize the Legislator’s goal towards a better justice that serves the interest of the community and the child. This goes hand-in-hand with the expansive adoption of a conciliatory justice for children to realize the principle of the best interest of the child; and endeavor to provide specialist police officers, public prosecutors, and judges to deal with children in a legal dispute.
• Means to surmount any hurdles that impede the adoption of the different punitive measures prescribed in the Child Law to reform, rehabilitate, and protect the child.
• The development of the punitive legislation system also necessitates mitigation of the psychological effect on the inmates in prisons and detention centers through the successful international experiences; training the prison staff on basic psychiatric skills; subjection of the prisoners to post-release care to monitor the social adaptation that started in the punitive facility and help the former inmates to benefit from the training, educational, and recreational programs.
• Strengthening the judicial authority as prescribed in the Constitution through the establishment of a professional judicial police that provides judicial supervision on prisons; implements the judicial rulings; and secures the role of justice and support agencies.
• The main purpose of custodial penalties is ‘deprivation of freedom’ and not humiliation, insult, denial of humanity, or exclusion of the convict, but rather the inclusion of the offender in the community after rehabilitation and reform.
• Utilization of psychiatrists in dealing with, reform and rehabilitation of the prisoners in punitive facilities; and consider the balance between implementation of the penalty and maintenance of the humanity and dignity of the convicts.
• The punitive legislations shall observe the conditions of persons with disability at all stages by virtue of the Constitution and its diverse aspects.
• Implementation of the constitutional provision to establish the National Anti-Discrimination Commission assigned to combat extremism and hatred through preventive measures before they grow and turn into terrorism that starts in the minds.
• Opening different channels for the civil society to promote civic culture in order to curb the voices of hatred, extremism, and terrorism, or the parties that justify and accept terrorism.
• Welcome the announcement of the Chairman of the Human Rights Committee at the House of Representatives to transfer the outputs of this event to the House of Representatives, its Speaker and ad hoc committees. The participants delegated the three organizations that held the workshop to deliver the findings in a separate report to the House of Representatives and the different relevant entities in the area of legislation. The said organizations were asked to collaborate with the competent authorities to hold new rounds of dialogue on relevant issues; and to benefit from the international experience that commensurates with the current challenges in Egypt.