On the military investigation of Egyptian journalist Hossam Bahgat

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By Ru’aa Ghareeb

“During times of emergency, crisis and war, it will always be natural that the ruling powers resort to actions which they consider essential at the time in order to respond to the threat posed by the crisis. In the majority of such cases, governments enjoy popular support for those actions, principally on account of fear of the crisis. However, the experience of democratic and authoritarian states alike proves to us that times of crisis and emergency are when it is more important than ever that the media and opinion formers disclose the information they have and publish their opinions, even if the majority of the public, ruling power, and pro-regime elites do not wish to hear or believe them.”

“Defending the Revolution, Defending the Red Lines”, by Hossam Bahgat, published in the newspaper al-Shorouk, Monday 5 June 2011.

Hossam Bahgat was well aware of the possible consequences of his decision to work in investigative journalism in a fearful and confused legislative, political and social context. One that is prone to arbitrary policies, restrictions on expression and publishing conspiracy theories, that responds negatively to anyone who disagrees or who poses legitimate, but un-asked, questions.

Bahgat knew exactly what he would face and chose to do so all the same, perhaps in order to stir a stagnant pool with statements that should be made, and situations that should be criticised and opposed.

While the team at the Association for Freedom of Thought and Expression was delighted at the release of their colleague, Hossam Bahgat, on the afternoon of 10 November 2015, and relieved by his good health, the department of the Right to Knowledge and the Circulation of Information considers it essential to make some additional comments relevant to the events of Bahgat’s investigation in an attempt to identify the reasons and motivations behind it. We stress the importance of studying what happened not merely for Bahgat’s sake, but for the sake of what he defends and fights for.

Bahgat did not seek confrontation. However, his confrontation with the military brought together all of the components of the crisis of rights and freedoms in general, and the freedoms of the press and of information in Egypt in particular.

Every detail of this extremely important case is instructive, beginning with the nature of the investigatory body making the accusations against Bahgat, which brings to mind the tragedy of military trials for civilians, to the facts of the investigation and the allegations made which reflect a crisis in the repressive apparatus with regard to the way in which the media operates without boundaries and without regulation due to antiquated legislation, and concluding with the decision by military intelligence to imprison and then subsequently free him in unclear and surprising circumstances, after he signed a declaration in which he promised to “abide by legal and security procedures when publishing material pertaining to the armed forces”. This was presented to him by two officers, ranked general and colonel, who informed him that military intelligence had released him despite the fact that the military prosecutor had decided to imprison him. This reinforces the conviction of campaigners for human rights and freedoms in general, and journalists and activists in particular, that the legislative, political and social context of the public field in Egypt has become extremely dangerous with regard to thoughts, bodies and fates. There are no comprehensible standards whose objectivity and rationality can be trusted. Rather, they are arbitrarily applied in the policies and practices of the ruling regime and its institutions.

In the following discussion we consider a number of issues and questions relevant to the allegations made against Hossam Bahgat. They provide a broad overview of the attitude and approach of the regime and its institutions towards freedom of the press and freedoms of access to, and publication and distribution of, information in Egypt.

Did Hossam Bahgat write about an inappropriate topic?

What should and should not be discussed in the media during the investigation and ruling stages of court cases is specified by the law of criminal procedures and the law for penalties in cases where there is a ban on publication. Bans on publication therefore enjoy the force of law in the situations specified by the law. Publication bans can be issued by investigatory bodies, but their efficacy ends with the conclusion of the investigation stage, whether or not the case goes to court.

Publication bans can also be issued by courts, which may prohibit the distribution of details of some or all of the sessions of a trial. These bans end as soon as a ruling is made.

Otherwise, public trials, even if they are military trials, are governed by article 71 of the law for military courts, number 25 from the year 1966, which stipulates that:

“Hearings are public. However, the court may, with regard to public order or maintaining military secrets or moral standards, order that part or all of cases be heard in secret, ban specific individuals from attending, or prohibit publication of information about hearings.”

What should and should not be discussed in the media during the investigation and ruling stages of court cases is specified by the law of criminal procedures and the law for penalties in cases where there is a ban on publication. Bans on publication therefore enjoy the force of law in the situations specified by the law. Publication bans can be issued by investigatory bodies, but their efficacy ends with the conclusion of the investigation stage, whether or not the case goes to court.

Publication bans can also be issued by courts, which may prohibit the distribution of details of some or all of the sessions of a trial. These bans end as soon as a ruling is made.

Otherwise, public trials, even if they are military trials, are governed by article 71 of the law for military courts, number 25 from the year 1966, which stipulates that:

“Hearings are public. However, the court may, with regard to public order or maintaining military secrets or moral standards, order that part or all of cases be heard in secret, ban specific individuals from attending, or prohibit publication of information about hearings.”

As an investigative journalist, he found a number of questions that needed to be asked. Bahgat was not convinced by the answers provided on Muslim Brotherhood-affiliated media outlets, which were concerned primarily with opposing the ruling Egyptian regime. This led him to doubt the objectivity of their analysis and interpretation of what had happened to the defendants in the trial.

Foreign coverage, represented by the BBC Arabic article, merely cited the statement received from military sources. The statement itself says that it wishes for the information contained within to be distributed and nothing more. Meanwhile, the Egyptian media was silent on the issue.

This is where investigative journalism comes into play. Bahgat sought to answer questions as to what really happened in the case, to view each of the involved parties impartially, to interview first and second degree relatives in the pursuit of information and to study the available court documents. He also attempted, unsuccessfully, to contact the military establishment, via a military spokesman, after waiting to see if the Ministry of Defence and body for military justice would officially comment on the issue.

With a background as a human rights campaigner, he found that those convicted had been subjected to gross violations during the investigation (extreme physical torture to extract confessions), motivating further investigation into the case. Bahgat knows well the role of human rights campaigners and activists in pressuring the Egyptian authorities to uphold their international commitments as specified in international treaties and agreements. The most important of these is the International Convention against Torture, of which Egypt has been a signatory since 1986. The second paragraph of article 2 of the Convention states that:

“No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Human rights campaigners are therefore obliged to investigate and publish information relating to this issue, without regard to prohibitions or obstacles put in place by a power accused of committing the crime of torture on the grounds of national security or the public interest. This is similarly emphasised in the text of the Global Principles for National Security and the Right to Information, (the Tshwane Principles), article 1, paragraph 1 of principle 10 states that:

“… there is an overriding public interest in disclosure of information regarding gross violations of human rights or serious violations of international humanitarian law, including crimes under international law, and systematic or widespread violations of the rights to personal liberty and security. Such information may not be withheld on national security grounds in any circumstances”.

It is worth mentioning that the Egyptian Initiative for Personal Rights participated in the drafting of this document in June 2013, during which time Hossam Bahgat was the director of the organisation.

We can deduce that the military institution was dissatisfied with the way in which Bahgat covered the events, rather than with the fact that they were covered at all. It was unhappy with Bahgat’s article which rejected the statements of the “military media” which deals with the media and the public using the logic of military orders, leaving no room for discussion, questioning, or the possibility of accountability of investigation.

The body that summoned and imprisoned Bahgat made no response to coverage of the events on websites and media platforms affiliated with the Muslim Brotherhood discussing and offering interpretations both during the trial and after the ruling was issued. No official information was published to clarify the facts of the case from their perspective. The body did not realise that failing to respond to the allegations made, either in Bahgat’s article or in other news outlets, and refusing to respond to Bahgat’s attempts to contact them while writing the article, violates the right of citizens to know the truth. This makes them prone to believing whatever is broadcast or published by the media so long as it is neither denied nor clarified by the bodies in question.

This conclusion is reaffirmed by a statement made by Bahgat’s lawyers about the nature of the questions with which he was faced during the investigation. These included questions about: the sources of his information; why his article featured the personal and social details of the convicted individuals; why he did not use information from the armed forces; the sources of his information concerning the torture of those convicted; and why he did not publish the article immediately after the ruling was issued.

In a detailed and clear response to these questions, he emphasised that he had written the article in order to end confusion about the facts of the case and added that he was “more than willing to correct any errors, if there were any”. Ultimately, the investigatory body accused him of distributing false news which disturbed public order, caused panic and harmed national interest.

Citizen, investigator or journalist? Would these labels change the nature of the investigation?

A question posed throughout the summons and investigation was whether it would have made a positive impact on Bahgat’s legal position during the investigation if he were to have been a member of the Journalists’ Syndicate. We absolutely believe in the importance of the Journalists’ Syndicate with regard to protecting and supporting all practitioners of journalism without discrimination.

AFTE considers that no distinction should be made, even if the law grants members of the Journalists’ Syndicate special privileges during legal proceedings concerning what they have published. This is regardless of whether the issue at hand is the protection of journalists’ right to not identify their sources, or their right to safety, according to article 7 of the law for the regulation of the press, number 96 of 1996. This is in addition to the syndicate’s commitment to providing journalists with the necessary protection and the right of journalists to obtain and distribute information, according to articles 8, 9 and 10 of the above mentioned law, despite the restrictions resulting from vague formulations such as “according to the law” in articles 8 and 10, or unclear exemptions such as “without breaching the requirements of national security and the defence of the nation and its interests” in article 9.

Even if the law regulating journalism and journalistic work in principle guarantees protective privileges and special considerations with regard to the way in which journalists handle information and sources, reality shows that they can be overturned and reconfigured using unclear wording, vague terminology or other legislation. Such laws include: the law of penalties, the law for the establishment of the documentary archive, the law for the preservation of official state documents and the regulation of their distribution, the law prohibiting the distribution of any news about the armed forces and the law for general intelligence.

In reality, the key issue in the investigation is not Bahgat’s professional affiliations, but rather the nature of what he did. An organisation which relies on a philosophy of “orders” is usually not interested in context, motivation, character, profession, or even the extent of the action, but merely with the action itself.

This conclusion is supported by the legal articles referenced by the investigators while accusing Bahgat of circulating false news, which appear in chapter 14 of the penalty law number 58 of 1937, entitled “crimes occurring by means of the press or other channels”. They referred to the first paragraph of article 102 which specifies that:

“Anyone who intentionally broadcasts false news or information or rumours shall be punished with imprisonment and a fine of not less than 50,000 LE and no more than 200,000 LE, if it negatively affects public security, causes public panic, or damages the national interest”

Article 188 of the same law stipulates that:

“Anyone who publishes in bad faith, using advanced means, false news or information, rumours, fabricated documents or documents falsely attributed to others shall be punished with imprisonment for no longer than one year and a fine of no less than 5,000 LE and no more than 20,000 LE, if it disturbs the public peace, causes panic amongst the people or harms the national interest.”

It might appear to a non-specialist at a first reading of these two articles that there is no difference between the crimes described in each case other than the use of different synonyms. However, article 102 connects the crime with the act of distribution, while article 188 requires the intention of disturbing the public peace for a crime to have occurred. One article therefore punishes the act of distributing false news where it can be proven that the person responsible intended to disturb the public peace, while the other punishes the act of distributing false news in and of itself.

Thus, we can conclude from the accusations made against Hossam Bahgat that the investigatory body was convinced that Bahgat intended to disturb the public peace by publishing the article under investigation and that if intent could not be proven, the crime would lie in the mere distribution of news which it considered to be false.

In terms of Bahgat’s summons, investigation and punishment, it made little difference whether intent to disturb the peace could be proven or not.

Let us not dwell then on whether a journalist affiliated with the Journalists’ Syndicate in Bahgat’s position would have enjoyed stronger protection of his right to access, publish and distribute information or of his professional legal position in the event being subjected to legal proceedings by a military or public prosecutor.
Even if journalists belonging to the syndicate are unique and protected, what about the writers of opinion pieces, or researchers in the human or scientific fields, for example, who often employ journalistic and media outlets as well as other forms of publishing and promotion in the practice of their work, and who publish and distribute what they write and the information and data that they obtain and produce. Do they have no legal support designed to protect them and regulate their work?

What about ordinary citizens like Ahmed Araby (18 years old), who posted a video clip on his personal Facebook page about an attack on an Egyptian navy boat off the Damietta coast and was subsequently referred to a military trial on the same charge that was levied against Bahgat, based on article 102 of the penalty law? The allegations made against him by the East Cairo Prosecutor accused him of “deliberately broadcasting false news and information which disturb the public peace and harm the public interest since publishing the video clip on the social media site Facebook from their computers harms public safety and the armed forces according to article 102, paragraph 1 of the law of penalties”. The Eastern Military Misdemeanour Court sentenced him to three years imprisonment and a fine of 200 LE.

Posting a popular video is far less than what Bahgat did, but the context is not of significant concern to the investigatory body or military court. Nor does it interest them whether the content of what was published is proven to have really happened or not, as the military itself ultimately announced in that case.

Finally, it bears consideration that in this case the reasoning of the special military institution, usually a closed organisation, agrees with that of defenders of the right to obtain and circulate information in its focus on the act of obtaining and distributing information. However there is a clear disagreement between their reasoning on how the act should be treated. The military institution was interested in the act of obtaining and distributing information in general, without looking at the character of the person responsible or the context or way in which it was obtained and distributed.

The clear disagreement in the reasoning regarding the appropriate response is that the military has consistently expanded and broadened the exemptions and prohibitions making it impossible for the act to not be a crime. It can determine the degree of the crime and its punishment using a wide range of articles from various pieces of legislation. It has established barriers that only it is able to define, interpret and use as and when required. Defenders of the right to obtain and distribute information, on the other hand, are concerned with whether acts are truly covered by precise and clear definitions of the circumstances for exemption and whether they intersect with other acts which might represent violations of other related rights and considerations, such as the right to privacy, and considerations of protecting the nation’s national security.

This makes it important to enact unified legislation to regulate the acquisition and distribution of information and withdraw all current contradictory legislation, in addition to establishing an independent body dedicated to adjudicating disputes regarding the disclosure or concealment of information, and routinely reviewing the standards employed to determine exemptions, the periods during which secrecy is imposed, and the prohibitions of coverage imposed by all institutes of state, including the institutions of the defence and security sectors as well as those of the private sector.

Who determines the credibility of Bahgat’s published reporting?

“The claimant is responsible for proving their claim and presenting evidence to support their claim.”

– Civilian cassation appeal number 59 of the judicial year 36 – session 7/4/1970

A famous legal and logical principle, known by the public and specialists alike, is fundamental in regulating the distribution of information. A judgment from the Egyptian Court of Cassation affirmed that there is something even more important than that in publication cases after a public prosecutor accused the editor in chief of the newspaper “Voice of the People” of publishing, in bad faith, false news leading to disturbance of the public peace and harm to the public interest in a story entitled “Government Guns and Horsewhips in the University”, published in its 469th edition. The story claimed that that government bodies had distributed guns and horsewhips to pro-government students in order to arm them against their fellow students. The editor was ordered to pay a fine of 50 LE and to stop. He appealed against the ruling via the court of cassation, which ruled that:

“The judgment under appeal is insufficient and legally mistaken. The evidence did not demonstrate that the appellant was aware that the news was false. His inability to prove the truth of what was published does not equate to him knowing that the story was untrue and there is no burden of proof upon him.”

From reading this judgment we can conclude that the judge was considering issues broader than the specific accusation, especially with regard to news which can be affected by many different circumstances. The prosecution was tainted by the impression that government bodies were seeking revenge following the publication of a story which implicated them in a crime. The court therefore came down on the side of assuring the role of the press and restricting the hand of the authorities from expanding its use of distributing false news in bad faith. It emphasised that the burden of proof rests upon the claimant and tightened the standards of proof needed to show bad faith and knowledge of false information.

Any institution or body can publish correct information available to it in response to the publication of information which it considers to be untrue. First, it can trust in publishers’ commitment to moral standards and second it can rely on the law to publish counter information according to paragraph 1 of article 24 of the law for the regulation of the press:

“The editor in chief or person responsible for editing is obliged to publish corrections of what has appeared in the newspaper, in the event of a serious request, within three days of receiving the correction or in the next issue of the publication, whichever occurs first, and in accordance with the newspapers publication schedule. The correction should appear in the same publication, location and font as the original article or story about which the correction was requested.”

– As regulated by the law in articles 24 to 29, the manner of publishing, operations and penalties for refusal.

We also wish to indicate that the law’s most significant errors and deficiencies, which might negatively affect the distribution of information, are in need of review. The intention underlying publication need not be to “lie”, but erroneous, incomplete or ambiguous information may be published. This happens frequently and should be governed and reviewed according to the press and broadcast codes of conduct for publication and regulated with guarantees of the right of the parties involved to respond and present corrections and clarifications and the imposition of administrative penalties and monetary fines.

From another perspective, article 19 has crystallised a number of principles related to the circulation of information as standards which can guide the drafting of legislation regulating freedom of the circulation of information. Among the most important of these are the principles of mandatory publication and automatic disclosure of information obtained by institutions of the state. This will greatly contribute towards enriching and regulating practices of publishing and distributing information. This would also make intentionally publishing false news more difficult, if this is found to happen. Abstention from mandatory disclosure opens a space for interpretation, speculation and rumour that can truly damage the public interest. Governments that remain convinced that they can be silent and force their subjects to be silent are largely mistaken. That mistake will cost them dearly.

National security and the distribution of sensitive information

The Right to Knowledge and Freedom of the Circulation of Information has studied a great deal of legislation, studies and papers concerned with examining the problems and possibilities of the legislative and political environment, the administrative practices of Egyptian state institutions, and the standards for the availability and free flow of information between state and civil institutions and between different state institutions.

From this effort we can draw together a number of general impressions about the way in which the Egyptian state, from July 1952 to the present day, has understood the concepts of the public interest, public peace, and national security. The final of these is the most significant and most frequently cited in state addresses and media coverage.

On the level of the legislative environment, we can consider, for example, article 85 of the penalty law which is concerned with listing all of the issues which are considered military secrets, in order to try to understand the approach taken to definition adopted by Egyptian legislators. The phrasing of article 1 is a clear example of the type of definition employed by legislators, which tends towards extreme generality, “military, political, diplomatic, economic and industrial information” and relies on references to the unknown: “that due to their nature are not known apart from by specific individuals”. Who specifies their nature? What are the standards for defining their nature? “should remain secret” who specifies this necessity? For what period of time should they remain secret? How can anyone, including the author, know whether any piece of information constitutes a “military secret”? For more critical discussion of the legislation on this issue, refer to our comparative legal study (section three: the complete prohibition of the circulation of information pertaining to the activities of the military and security forces p41 in the report on the Freedom of the Circulation of Information).

The lack of legislation in Egypt regulating the freedom to obtain information according to internationally agreed standards and principles that would allow for a review of all current legislation is an important issue. A commission for information should be formed that can contribute to developing national definitions of key concepts and imposing standards and precise and practical definitions of exemptions. This is essential to strengthen open and regulated practices for obtaining and distributing information.

With regard to the policies and practices of state institutions, they can be summarised by considering the Global Principles on National Security and the Right to Information in order to define “legitimate national security interest”. The agreement states that:

“A national security interest is not legitimate if its real purpose or primary impact is to protect an interest unrelated to national security, such as protection of government or officials from embarrassment or exposure of wrong doing; concealment of information about human rights violations, any other violation of law, or the functioning of public institutions; strengthening or perpetuating a particular political interest, party, or ideology, or suppression of lawful protests.”

This is where the heart of the problem lies. The first response is to conceal rather than disclose, to aim for repressive fear rather than constructive trust in the rule of law and democracy. The security of the ruling regime is not differentiated from the security of the nation. As for the concept of legitimate national interest as explained in the Tshwane Principles, it is “an interest in the genuine purpose and primary impact of which is to protect national security, consistent with international and national law”. It is defined in the second section of the document entitled “information which may be concealed due to reasons pertaining to national security, and information which should be disclosed” (principles 9 and 10).

The preceding discussion clarifies the nature of the dispute between Bahgat’s understanding of national security, and those who share that understading, and the concept of national security as understood by the military and state.

We can conclude here that the desire of the ruling regime to reconsider its thoughts and approach is an important, if not the most important, factor. But can it be relied upon? The desire is self-generated, originating with developments and interactions within the state apparatus. Social pressure and demands should have parallel power in order to allow them to influence that desire. To test that hypothesis and genuinely implement it, it is both possible and essential that defenders and supporters of the right to knowledge have the freedom to obtain and distribute information and challenge the status quo, as Hossam Bahgat did.

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