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Has the government finally found a mechanism to seize Brotherhood assets?
 
 

The Law to Regulate the Procedures for the Seizure, Enumeration, Management and Disposal of the Assets of Terrorist Organizations and Individuals was ratified by President Abdel Fattah al-Sisi, and published in the Saturday release of the Official Gazette, which was published on Sunday morning. Initially a government draft, the bill — now Law 22/2018 — was passed by Parliament on Tuesday, April 17.

The immediate backstory to this piece of legislation only tells a partial story, however. Situated in a wider context, the new law marks the beginning of a third round in the state’s campaign to seize the assets of the Muslim Brotherhood and other organizations. Two previous attempts to do so were deterred by the State Council and appeals courts, both of which challenged the legitimacy of the committee ordering the seizures.

Under the provisions of the new law, the government can directly confiscate assets for the first time, rather than merely freeze them. This may be the deciding factor in a protracted conflict, a move that shifts the balance in favor of the state.  

Round one

The government’s first attempt to address Muslim Brotherhood assets was through a ruling issued in September 2013 by the Cairo Court of Urgent Matters, which banned the group’s activity in Egypt and allowed for the seizure of its assets.

In the following month, the Cabinet — chaired at the time by Hazem al-Beblawi — issued Decree 1141/2013, forming “a committee to manage the Muslim Brotherhood’s assets,” based on “the court of urgent matter’s decision.”

The committee’s workload has increased since it was created, and it has ordered seizure of the assets of more than 1,500 people. Nevertheless, its decisions have been revoked by one ruling after another from the administrative judiciary. The grounds for the State Council’s rulings was that the committee’s decisions were administrative in nature rather than judicial. Thus, the court asserted that the committee is not entitled to order asset seizures, and its decisions may be appealed before the State Council.

Football player Mohamed Abu Treika was one of the individuals whose assets were frozen by the committee. In its report on the case, however, the State Commissioners’ Authority (SCA) pointed to a number of violations committed by the committee, including violating private property and jeopardizing the constitutional and legal rights of citizens.

The SCA also argued that the committee did not have the proper jurisdiction to intervene in an individual’s assets. “[The committee] unlawfully seized jurisdiction over the matter from the judiciary, as, even if the plaintiff has committed an act that constitutes a crime, it would not justify the interference by an administrative body by means of an administrative order, depriving the plaintiff from managing his assets and disposing of them,” the SCA wrote. “A ban on the management or disposal of assets should be issued by the competent criminal court, in accordance with the regulations stipulated in the Criminal Procedure Code, or as an immediate effect of a ruling to add [the holder of said assets] to any list provided in the terrorist organizations law.”

Following on from this argument, the SCA thus recommended that the order to seize Abu Treika’s assets be revoked, according to a February 2016 report by the privately owned Al-Shorouk newspaper.

Round two

The series of rulings issued by the State Council in this matter have cast aspersions on the committee’s legitimacy, and created a fog of uncertainty around its decisions. In an effort to work around them, the government proceeded to re-order the seizures once again, this time in compliance with the provisions of the Law on the Regulation of Terrorist Organizations and Terrorists.

The law stipulates that the public prosecution should draft a list of “terrorists and terrorist organizations.” This list is then submitted to a criminal circuit of Egypt’s Court of Appeal. If the court rules in favor of labeling the individuals and organizations on the list as terrorists, their assets are then seized.

In January 2017, the Cairo Criminal Court issued 1,538 judicial asset seizure orders to individuals whose assets had previously been frozen by the committee. A judicial decision was issued by the same court in May, ordering the reformation of the committee. Yet another decision followed in September, through which the court appointed committee members.

The committee resumed its duties, only to be hindered by a new obstacle: Plaintiffs resorted to the Court of Appeals in droves to challenge decisions to seize their assets. Many appeals were accepted, and the committee’s decisions were revoked, effectively reversing the freeze.

During the past week alone, the Court of Cassation revoked decisions to list defendants as terrorists in three different cases: The Province of Sinai, the Fayoum Special Operations Cells, and the case against those accused of killing journalist Mayyada Ashraf and creating special operations cells in Ain Shams. The three cases were then referred to other criminal circuits.

The Court of Cassation is also looking into a petition against the January 2017 decision issued by a lower criminal court. The petition was filed by several defendants whose assets had been seized, including football player Abu Treika. The court’s prosecutorial office recommended, in its report, that their appeals be accepted and the seizure orders be revoked.

The prosecutorial office, according to Al-Shorouk, found that the criminal court’s decision “did not clearly state the acts committed by the defendants,” nor did it “clearly outline and establish the evidence, according to the investigations and documents submitted to [the criminal court] by the attorney general. Instead, it only offered non-specific, unidentified statements shrouded in ambiguity.” The prosecutorial office therefore recommended that the decision to list the defendants as terrorists be revoked, and, consequently, the asset seizure be halted.

The recommendation by the Court of Cassation’s prosecutorial office was yet another blow to the legitimacy of the committee. It argued that the two decisions issued by the criminal court in May and September regarding the appointment of committee members were “a subsequent effect of the listing decision, and orbit around it for better or worse. [The decisions] could not have possibly been issued without the decision to list [the defendants as terrorists.]” Accordingly, the decisions “may not stand, should [the listing decision] be revoked,” reads the report.

Round three

Parliament’s move to pass the bill last week marks the beginning of round three, and an attempt to circumvent the impediments that previously restricted the committee. To address the matter of the compositional nature of the committee, and hence the jurisdictional problems that plagued it in its two earlier forms, Article 2 of the law stipulates that the committee will be of “a judicial nature,” thereby investing it with a status it had not previously enjoyed.

This final legislative language, however, was not initially a matter of consensus. In the discussions on the bill, which took place two days prior to its approval, members of Parliament debated whether the committee would bear judicial characteristics or — being formed by the president as an executive authority and based on the several judicial rulings deeming it an administrative body — have an administrative nature.

To guarantee the committee’s independence, several MPs proposed that judicial members of the committee be delegated by the Supreme Judicial Council (SJC) rather than the president. Judge Mahmoud Fawzy, the adviser to the parliamentary speaker, moved against this proposal, however, arguing that the current provisions — which stipulate that the approval of the SJC is a requirement — are already “sufficient [for that] purpose.”

However, Parliamentary Speaker Ali Abdel Aal said that members of the committee would be judges in simple adherence to the law. He elaborated that they would be nominated by the justice minister then appointed by presidential decree, but only following the approval of the SJC. As such, he continued, the committee would be formed in compliance with the Constitution.

Abdel Aal’s argument would seem to lay the ground for an expansive understanding of executive authority less defined by administrative and judicial areas of concern. The parliamentary speaker also claimed that all constitutions across the world stipulate that the president rules over all branches of government, a stipulation he contended the Egyptian Constitution shares.

MP Bahaa Eddin Abu Shaqqa, the head of Parliament’s Legislative and Constitutional Committee, directed attention to Article 239 of the Constitution, which stipulates that Parliament shall issue a law to regulate the rules for the delegation of judges and members of judicial bodies and entities. According to Abu Shaqqa’s viewpoint, this article is the basis for deeming the committee a judicial body. He, however, did not explain the connection between the article and the formation of the committee.

Nevertheless, thanks to the new law, the committee is now safeguarded against the judicial disputes that had been a threat to it in the past. Additionally, the procedures set forth in the law on terrorist organizations and terrorists in connection with the seizure and management of assets shall be replaced.

How does the new committee work?

The law — which is composed of 18 articles — lays out the legal procedures for the seizure of the assets of “terrorist groups” and the creation of a committee of a judicial nature which shall have the sole authority to take all measures related “to the enforcement of rulings deeming a group, organization or person an affiliate of a terrorist group.”

The law stipulates that the committee will consist of seven members, all of whom will be Court of Appeals judges. The judges will be appointed by a presidential decree, following their approval by the SJC, according to Article 3 of the law.

The committee will undertake that task of enumerating all forms of assets related to asset seizure rulings, being empowered to take any and all measures or employ any bodies toward that end, according to Article 4.  

Where these rulings emanate from, however, is not specified in the law, according to Ahmed Hossam, the attorney of several defendants who were party to the appeal contesting the ruling to list 1,538 individuals as terrorists.

The most likely interpretation, says Hossam, is that the article refers to rulings issued by the criminal court to add individuals to terrorist lists as regulated by the terrorist organizations law. Hossam states that it is only such rulings that allow for the seizure of assets. The ambiguity, however, is likely to allow for abuse of the law, he says.

Requests to seize the assets of individuals listed as terrorists shall, according to the new law, be submitted by the committee — based on such rulings— to a judge pro tempore. If the request is approved by the judge, the management of the seized funds and assets becomes the responsibility of the committee.

Petitions against decisions are, as stipulated in the new law, to be submitted to a court of urgent matters rather than the State Council (as was the case in round one) or the Court of Appeals (as was the case in round two.) If a court of urgent matters rejects the appeal against the seizure order, the ruling holds as “final.”

The law, thereby, sets a precedent, allowing the government to confiscate assets and deposit them into the state budget, rather than merely seizing and managing them. Moreover, assets can be confiscated and deposited before their owners are convicted of charges related to terrorism.

“Hundreds of these people,” Hossam says, “including Abu Treika, did not have any charges brought against them in any cases related to terrorism. Most of them were never even summoned by the prosecution for interrogation in connection with any such cases or charges.”

The timing of the finalization of the law is also related to several rulings that have been issued by the Court of Appeals over the past few days, revoking orders to list individuals as terrorists, according to Hossam. The law came into effect just before a verdict was issued regarding two more appeals, including Abu Treika’s.

Ambiguous as it may be, the law marks the beginning of a new round, which may see the government finally seizing a win after years without progress.

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Mohamed Hamama 
Rania al-Abd