At the 2015 funeral of the assassinated Egyptian Public Prosecutor Hisham Barakat, President Abdel-Fattah El Sisi expressed the urgent need for exceptional measures in order to achieve “prompt justice.” A new counter-terrorism law, amendments to the Code of Criminal Procedures, and other legislation would become the main vehicles used in the war waged by the authorities against terrorism, which later engulfed civil society. A general deterioration in the rule of law facilitated by a harsh security crackdown and far-reaching legislation have given way to unprecedented violations of fair trial guarantees and an increasingly hostile environment for lawyers.
Law as a “tool” in a permanently-normalized state of exception
Human rights lawyers have been particularly impacted by the state crackdown, especially those working on cases handled by the State Security Prosecution (SSP). Egyptian Initiative for Personal Rights Lawyer Adel Ramadan elaborates on how the state perceives law in a time of urgency and stresses that legislation has merely become a “tool” for the interests of the state. This disregard for the law is apparent in the “extremely high rate of legal amendments” that constitute an attempt at codifying already-existing violations. At the prosecutor’s funeral, Sisi signaled a nuanced shift in attitude towards the role played by the judiciary in the coming phase and the priorities it would entail in terms of a “prompt justice” over considerations of due process. In the time since, near-continuous pre-trial detention orders and charges against individuals based on vague terrorism legislation have been, in part, a result of this re-articulation of the judiciary, and more specifically, the prosecution’s role.
The constantly-renewed state of emergency, coupled with wide-ranging measures at the disposal of the prosecution’s authority, has exacerbated an already dire situation when it comes to the prospects for fair trials. Prosecutors and courts interpret the law with “arbitrariness,” according to lawyer and human rights activist Ahmed Ezzat, who argues that the duality embedded in the pre-2011 Mubarak days, whereby an imposed state of emergency ran in parallel with regular judicial measures, has effectively “collapsed,” as emergency measures have gradually become integrated into criminal procedure and counter-terrorism legislation, and in turn, become the norm.
As violations, in part as a result of these legal changes and amid expanded prosecutorial authority, continue; lawyers recount and reflect on prosecutorial practices and how these affect their own legal practice and the perception of themselves and the law in the current context.
Working under pressure in a restrictive environment
As lawyers attempt to navigate obstacles posed by prosecutors exemplified in restrictions such as banning them from entering prosecution offices, denying them the ability to visit their clients, or preventing them from viewing case files, pressure is building up. “As if you’re crossing red lines,” one lawyer said, describing his experience in providing legal assistance to his client when dealing with the SSP. Lawyers have been forced to acquiesce to unfavorable conditions, which at times amount to a complete breach of the rights of legal defense, in order to be able to get any form of assistance to detained clients, whether it be food, clothes, or other items. They need to constantly negotiate and compromise in order to get prosecutors to approve the provision of rights already granted to lawyers, such as being able to discuss cases with their clients in private.
All of these challenges have taken a toll on lawyers and their ability to undertake the role they have been trained to do: to provide legal counsel. In addition to violations during investigation, lawyers have come to accept that—more often than not—their clients’ releases are not due to legal defense or sufficient evidence; but rather, as a result of orders from chief prosecutors or the public prosecutor himself. Given the hierarchical structure of the prosecution and the high degree of executive interference in its affairs, individual prosecutors are increasingly unable to determine the fate of each detainee without reporting back to their supervisors, further deteriorating the strength and independence of the prosecutorial institution, instead giving way to a discretionary and politicized system.
This atmosphere has prompted feelings of “incapacity” and “weakness,” as lawyers in general and human rights lawyers specifically strive to achieve the bare minimum for their clients, while remaining incapable of challenging illegal phenomena, such as enforced disappearance, prolonged detention, the “recycling of cases,” and torture or ill-treatment while in custody. The current environment has also negatively affected lawyers’ ability to develop and grow in their practice, as Ezzat noted, and “tarnished the reputation of the entire practice,” as the syndicate lacks the capacity and willingness to affect any change after having been “completely breached” by the state.
“We are drifting away from the law-abiding state,” Ramadan says, as escalating measures are taken with the law not being implemented in its true spirit; and with the exception usually invoked as normative practice.
A transformed role for the lawyer
The lawyer’s role has undergone a radical, albeit imposed transformation. Amid crackdown, it is often lawyers who are the only ones with some form of access, and accordingly, the only ones able to deliver resources to detainees and reassurances to family members, and to communicate and report information about detainees to the outside world.
Lawyers also described the role of the practitioner now as being “passive,” unable to influence the trajectory of any given case, and mostly “acquiescent” to measures imposed by prosecutorial authorities and courts. Lawyer Aziza al-Taweel explained that colleagues might be “surprised” with decisions that involve a client being added to a new case or receiving a detention renewal. While lawyers strive to safeguard their clients’ rights, they are ensnared in a constant tug-of war with prosecutors over those rights, forcing them to prioritize some over others in order to attain desirable outcomes for their clients.
Despite this perceived passivity, lawyers still affirm that their role is absolutely necessary, as it is only by invoking and exercising the law that the legal system can be challenged and improved, that norms can be established, and that individual rights can be affirmed over time.“Monitoring and documentation” were also frequently brought up as crucial tasks that could only be done by lawyers given their presence at prosecution offices and the courts and their knowledge of how decisions take place and what factors drive them. Such efforts are vital, both in helping others understand the system to bring about immediate changes, and also for long-term efforts toward accountability and transitional justice. Lawyers also brought up the importance of “strategic litigation” as one of the remaining methods of resisting the status quo in an attempt to establish legal precedent.
Resistance through the courts
Some lawyers have opted to wage their battles in court in order to challenge the current legal order and possibly contribute to developments in favor of the rights of detainees.
In an effort to challenge the recently common practice of forcing individuals to serve their probationary sentences (12 hours every night) inside their local police stations, al-Taweel managed to secure a ruling from the Administrative Court to invalidate a security director order compelling April 6 Youth Movement co-founder Mohamed Adel to spend his probationary period inside a police station. In what is deemed as an unprecedented ruling, the court ordered that Adel spend his probationary period at home instead; which is already sanctioned by the law. Despite the success of this case, it has not yet set a precedent for other detainees in similar situations.
Lawyers working to promote social change are part of a wider socio-professional movement that deploys strategic litigation as a tool to challenge the state’s policies and counter its narratives. However, lawyers who defend victims of human rights violations and engage with cases of public interest more broadly are finding it increasingly difficult to pursue their causes and to challenge widespread obstacles through traditional legal means.
Given recent developments on the legislative, judicial, and executive fronts, the work of lawyers, while at times successful, remains under severe threat. Much needs to be done, and not just by the human rights community, in order for the legal practice to regain its prominence and for lawyers to re-establish their trust in the system, become able to provide legal defenses for their clients, and systematically challenge violations by the state.