The Egyptian Organization for Human Rights
REPORT
By Direct Order… |
EOHR's Criticisms against Law 153 of 1999 on Associations and Civil Institutions
Cairo
22 June 1999Each day, the Egyptian authorities assert, with proof and evidence, that they are moving in a direction opposite to the logic and movement of history. At a time in which the world is preparing to enter the third millennium and enlarging the role and importance of civil society, the Egyptian government with its ruling party insists on carrying on with its scheme to stifle civil society in Egypt. This is after it stifled the largest trade and professional unions, destroyed the base for an independent unionist movement, and minimized the role of political parties by paralyzing their activities and blocking their way to communicate with their constituencies. This is also after it promulgated the ill-reputed press law and its legal amendments, which led to arbitrary measures such as placing several journalists behind bars in connection with publication offenses.
Needles to say, it makes no sense to talk about democracy day and night while maintaining a huge arsenal of laws which are against the development of people's capabilities, impede their progress and hamper their movement and contribution towards the making of general policies. These laws violate the rights of the people by adding new restrictions to limit the freedoms stated in the Egyptian Constitution in articles 55 and 56, as well as in many of the provisions of the International Declaration of Human Rights. The Egyptian Constitution and the International Declaration guarantee people's right to set up civil associations, to express themselves and defend their democratic, economic, social and cultural interests. If the Egyptian Constitution and the Declaration were truly enforced, they would necessarily lead to a comprehensive increase in the formation of civil society institutions, including professional, trade and farmers unions. We would also see an upsurge in the formation of human rights organizations, women's rights groups and other civil society institutions. Moreover, enforcing these rights would lead to freedom of the press.
Pre-fabricated laws!!
On 13 May 1999, the Egyptian Cabinet approved the draft law on associations and referred it to the People's Assembly for approval and issuance. The law was entered for discussion very late in the evening on Sunday, 16 May 1999, to be discussed by both the Legislative Committee and the Social and Religious Committee. The hastiness in which the draft law was passed raises a lot of concern and suspicion.
Strikingly, the draft was not yet out of the corridors of the Cabinet before it was stripped of all what was imagined to be positive points. The new draft kept the spirit and provisions of Law 32 of 1964, which restricted the freedom of civil work. The draft even adds a number of administrative restrictions regarding the foundation of associations and their purpose. It also strips general assemblies of their responsibilities and allows intervention into each organization's board of directors, dissolving NGOs and controlling the obtention of funds. In one phrase, this means imposing more control and hegemony by the administration and the government on non-governmental organizations, as well as on civil society as a whole. While drafting this law, the government purposefully ignored the views of civil society and human rights organizations. It destroyed their efforts during one year and a half towards building a real and meaningful dialogue with concerned governmental authorities. During this period, NGOs presented governmental authorities a number of studies, critical reviews and comparative studies with previous Egyptian laws and similar international and Arab ones. They even prepared an alternative new draft, which was presented to the People's Assembly by four parliament members. Unfortunately, it was a dialogue of the deaf, as the government persisted in realizing its plan to stifle civil work. All that was left was to legitimize the crime and to deceive the local and international public into believing that these organizations "are satisfied with the law and support it." This is a falsification of the fact that the government has completely disregarded the efforts made by NGOs, even the conclusions of the drafting committee formed by the Ministry of Social Affairs, and the promises made by the Minister herself during consultation meetings held in Cairo and Alexandria.
The new draft law, made of 75 articles, was passed in 90 minutes at a joint meeting of the Legislative Committee and the Religious and Social Affairs Committee. The draft met a similar fate in the general debates. It has become clear that the government insists on passing this law to discredit human rights groups under claims of protecting the national security and avoiding the politicization of civil work. Given the sliding majority enjoyed by the ruling National Democratic Party in the Assembly, the government was able to achieve its aim. Parliament approved the draft law at midnight on 26 May 1999, and the law was ratified by the President of the Republic on Thursday, 27 May 1999. The law was issued under number 153 of 1999 on civil associations and institutions.
Based on its wish to sensitize the public opinion, EOHR affirms its complete rejection of the restrictions included in this law, which are contrary to the government's assertions that the law represents ‘a qualitative step forward' in the drive of civil work.
An objective review, provided in detail below, will show that the law is unconstitutional in many of its articles, particularly in article 11, which is its cornerstone. The law bans activities other than those prohibited by the Constitution. This is a constitutional contradiction and a violation of the right to association stipulated in the International Declaration of Human Rights. The new law reproduces the shortcomings of the annulled Law 32 of 1964 and even adds new restrictions. In addition, the language of the law is deliberately vague and flexible, open to different interpretations according to the situation and the interests of the moment.
The new law is undemocratic. Many of its articles impose blatant administrative hegemony and control on the jurisdiction of the general assemblies and boards of directors of the associations. It gives the administration the right to invite the general assembly to meet, and to appoint a representative who has power over the board of directors. It also compels the associations to send a copy of all their documents, papers and decisions to the administrative authorities, and to have their books sealed with the administration seal. It further gives the administration the right to interfere in the affairs of the board of directors by making objections and excluding members. Moreover, the association can be dissolved by a judicial decision upon the request of the administration, within the framework of many of the articles of the law. The law allows the government to define the activities and sources of funds. It grants the President of the Republic the right to intervene in the structure of the general federation of associations and civil institutions by appointing its head and one third of members. The new law deliberately removed the jurisdiction of the administrative judiciary in hearing disputes arising between civil associations on one part and the administration on the other, and made it the jurisdiction of civil courts. In addition, the law imposes tough penalties on associations. It dictates that associations must be closed down in case of the occurrence of what it calls irregularities by members of the board of directors. Also, the law impedes the right of a group to create an association, giving the administration the right to object to the statute of the association and subsequently preventing it from being registered. The law puts the burden of proof on the representatives of the founders. The provisions of this law are extended to associations even if they are established in legal form other than societies and associations, whose work could be organized by other laws. The law stipulates that ten persons are required for the formation of a foundation. An office must exist in advance, and the consent of the prime-minister (or his deputy) must be obtained to delegate civil servants to work for these associations, or to state the exemptions stated in the law. This is in addition to restricting associations from joining, collaborating with, affiliating to a club, association, or a body of organizations whose office is outside the country.
For reasons stated above, the law is objectively in contravention with all the following ideas and principles:
1. The general philosophy of the law must aim at liberating civil society and institutions by giving individuals the right to: (i) set up associations with free management; (ii) decide their fields of activities; and (iii) draft regulations which organize their work. The law must also give more responsibility to the general assemblies to supervise and oversee the leading bodies of associations, stressing the principles of transparency, accountability and self-control, as stipulated in article 55 of the Constitution.
2. The right of associations to register upon notification. This means that the legal personality of an association exists as soon as the founders' representative notifies the administration. In case the administration objects to the establishment of an association, it shall have to resort to the judiciary within a period of 30 days upon the date of the notification.
3. General assemblies of associations are the highest power to set general policies, decide areas of work, elect and oversee the board of directors, and approve the annual budget. No administrative authority should have the right to interfere with the work of these assemblies, including the selection of their leaders.
4. Civil associations should have the right to develop their resources and receive funds for their programs from individuals and institutions inside or outside Egypt, after informing the administration of the source of funds, the amount, the projects or programs for which they were obtained, provided that they follow appropriate accounting and bookkeeping procedures. At the same time, their books should be available for inspection by those concerned. The association shall also publish an annual budget revised by an outside auditor selected by the general assembly.
5. Associations shall not be dissolved by administrative order. In case the administration has specific reasons for dissolving the association, it must resort to the judiciary.
I. The Unconstitutionality of the Law
The right to set up associations is stated by the 1971 Constitution, which asserts in article 55: "Citizens shall have the right to form societies as defined in the law. The establishment of societies whose activities are hostile to the social system, clandestine or have a military character is prohibited." Also, paragraph one of article 56 states that: "The creation of syndicates and unions on a democratic basis is a right guaranteed by the law, and should have a moral entity."
Hence, the Constitution guarantees the right to set up associations and left the organization of this right to the legislature.
The Constitution specifically prohibits three kinds of activities with respect to practicing the right to set up associations:
1) organizations which practice activities that are against the order of society;
2) organizations which practice secret activities;
3) organizations which practice activities of a military nature.Given that the Constitution mentions the prohibited activities, the legislature should not prohibit other activities. It cannot be said here that the discretionary power of the legislature affords it the right to prohibit additional activities. This is because this kind of rights and public freedoms in which the Constitution sets specific and clearly stated restrictions or constitutional conditions, are binding to the legislature. If the legislature disregards them, it will be committing a constitutional contravention, which will render the law unconstitutional. The organization of a right should not infringe the guarantees of this right, as stressed by the Supreme Constitutional Court.
Asserted by court rulings, the legislature's power in organizing rights is a discretionary one, unless it has been restricted in a way that sets limits to its practice. Also when the Constitution refers the organization of a right to the legislature, the legislation should not infringe the rights guaranteed by the Constitution. The legislature should not curtail or go above the Constitution, as a vital frame for the given right to guarantee its effectiveness (ruling in challenge no. 27/8-Constitutional Judiciary, session of 4/1/1992, Official Bulletin issue of 23rd January 1992).
Article 56 of the Constitution affirms that the legislature should guarantee the right to establish societies and associations in a democratic manner. This is done by stating that general assemblies are the competent bodies to determine the association's policy, statutes, and its management. The administration is not allowed to restrict this right, as this would be a contravention of the Constitution. It is also prohibited to interfere with the decisions and policies of associations, their statutes or their management.
In this respect, article 20 of the Universal Declaration of Human Rights stressed the right to association by stating that: "Everyone has the right to freedom of peaceful assembly and association. No one may be compelled to belong to an association."
Paragraph two of article 29 of the Declaration states the restrictions on the organization of the rights included in the Declaration, including the right to set up associations. It asserts that: "In the exercise of his rights and freedoms, every one shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society."
Also, the International Covenant on Civil and Political Rights stresses this right in article 22 by stating that:
"Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right."
In addition, the African Charter for Human and Peoples Rights asserts the right to set up associations and the right to assembly (articles 10 and 11).
Thus, international standards recognize the right to association as a substantial human right. They also stipulate the limitations accepted by the international community according to the following criteria: (i) the limitations are stated by the law; (ii) they must be accepted in a democratic society; and (iii) they must be realized for specific purposes (such as national security considerations, public peace, protection of public health, protection of ethics, and protection of the rights and freedoms of others).
According to article 151 of the Egyptian Constitution, international treaties which have been ratified by the Egyptian government have the power of domestic laws and override contradicting provisions.
II. Main Shortcomings
An analytic review of the provisions of the new law on civil associations and institutions, which cancelled Law 32 of 1964, highlights the undemocratic nature of the law. This is manifested in the following:
1. Restrictions on the Activities
The new draft curtails the constitutional right to association. It prohibits certain types of activity in article 11 of the first part, second chapter. It imposes restrictions on the aims, rights and commitments of associations. It states that: "Clandestine associations are prohibited. Also, the following aims and activities are banned:
A. To form military units, or activities of a military nature.
B. To threaten national unity, to deviate from public order or morals, or to call for discrimination between people on basis of gender, origin, color, language, religion or faith.
C. Any political or union activities confined to political parties and unions.
D. Profit-making or performing activities for this purpose. Following commercial restrictions to make a product that would help in the realization of the purposes of the association is not an objectionable activity."
It is clear that the Constitution has defined, specifically and exclusively, the activities forbidden for civil associations and institutions. These do not include the additional ones included in article 11. Political activities for instance have a broader scope than the activities practiced by political parties, i.e. party activities are one form of political activity.
Until the executive regulations of the law are issued, and in the absence of an objective and conclusive definition of what is considered political or union activities which are confined to political parties and unions, it is important to recall what is common knowledge, i.e. that every public act is political activity.
The statements made by some public officials reflect clear contradictions in this regard. The Minister of Social Affairs said that with respect to not engaging in political activity it is meant not getting involved in the process of peaceful circulation of power through elections, and that concerning union/syndical work, it means not issuing licenses to practice the profession or defend the interests of union members. She added that every public activity is a political one, be it defending women's rights, human rights, protection of the environment or the like, and that it is unimaginable to prohibit it (Al-Ahram newspaper on 9 June 1999).
However, in other statements, the same minister asserted that the political activities of human rights institutions in particular, shall not include writing hostile reports, distributing them abroad, and focusing completely on political rights while totally disregarding the economic and social rights stated in the international bill of rights. She added in a statement: "… societies whose activities are far from social work, and speak about workers' rights, wages, and syndical struggles … the places for practicing such activities are not associations but parties and unions."
In the meantime, the statements of the Prime Minister reflect a different view, i.e. that he who wants to get involved in political activities must join political parties, and that goes also for union activities. He added that there is no room for politicizing civil society institutions and allowing them to form "a state inside the state", or to threaten national security! His exact words were: "Is what is issued by those a protection of human rights? Is claiming that there is religious persecution, spread of corruption, disrespect for women in Egypt among human rights? If you want to engage in political party activities, you should go to political parties, if you want to do union activities, you should go to unions, and if you want to do harm for Egypt, there is no room for you!"
Amidst this intellectual and political confusion, it is important to make up our minds about an objective definition of what is political and what is syndical in the work of human rights organizations. Some introductory points are needed in this regard:
1. That the points of reference of the Egyptian human rights movement are mainly the covenants and declarations of the international bill of rights, as stated in the constitutions and statutes of human rights organizations. Therefore, they are not an expression of certain political ideologies. They do not aim to reach power or to issue licenses for practicing various professions. They are simply the conscience of the nation in defending and protecting human rights and freedoms and monitoring any violations of them.
2. The points of contact between the activities of these institutions and what is political or syndical are not a goal in itself, but a natural result of the references of these organizations, which determine their constitutions and stances. They firmly adhere to the universality of human rights principles and their indivisibility in whatever circumstances. These principles are of a higher rank than domestic legislation. Moreover, governments are committed to produce constitutional and legal provisions that are in conformity with these basic principles of human rights. States which violate them are subject to be held accountable by the United Nations and its various monitoring bodies. Many of these standards give individuals the right to complain against their governments in case these violate human rights, and give states the right to complain against any state party that violates these rights. Thus, the claims made by governments that human rights are at the core of internal sovereignty is not true. This sovereignty is restricted by showing respect for international standards of human rights. We would like to note here that the reference and statutes of the Egyptian Organization for Human Rights, such is the case with other human rights organizations, is based on the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Optional Protocol to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Right to Development, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination Against Women, the International Declaration on the Rights of Persons of Religious or Ethnic Minorities, the International Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the General Comment adopted by the Human Rights Committee on the Right to Freedom of Thought, Conscience and Faith.
3. With respect to justice, freedom, and equality, these organizations struggle for: the defense of the rights to individual freedom, personal safety, inviolability of personal life; ending the use of torture and degrading treatment; the right to an impartial and fair trial before a natural judge; protection against arbitrary arrest or exile; freedom of movement; the right to nationality, ownership; freedom of thought, conscience, and faith, freedom of opinion and expression without being subjected to harassment, freedom to seek news and information and to circulate them, freedom to peaceful assembly, to participate in the conduct of public affairs and hold public positions; the right to national security, to work in fair conditions; freedom to set up unions; the right to a proper standard of living; women's and children's rights; the right to education; peoples' right to self-determination, to develop their resources and wealth, and to guarantee equality in economic, social, cultural, health, and environmental rights.
4. Discussing in detail article 11 is justified by the fact that it represents the core of the new law and the base on which many of its articles are built and refer to, as detailed later. Also, placing syndical work among the restricted activities constitutes an expansion in the use of restrictions. Moreover, the legislature reiterates the practice of using inexact terms that can bear many interpretations and have no specific meaning, such as "national unity", "public order", and "ethics/ morals". The executive regulations must clearly and definitely specify the political and syndical activities which are prohibited for associations in order to prevent any misinterpretation. In addition, banning associations which call for discrimination on the basis of gender, origin, language, religion, or belief, could raise questions about the situation of Islamic or Christian societies, whose membership is exclusive to those of certain religion given their nature, or women's societies, or societies for the protection of certain nationalities.
2. Restrictions on Founding
The new law is clearly undemocratic when it imposes administrative control over the decisions of general assemblies. The previous rule was that the legal personality of an association began as of the date when a representative of the founders informs the competent authority of the founding of the association. The administration then had to register a summary of the statutes of the association. However, article 6 of the new law states that in case the administration discovered, within sixty days, that among the aims of the association is an activity which is prohibited by article 11 of this law, it shall reject the registration request by a decision that shall be sent to the representative of the founders, who shall then have the right to challenge it before the competent court within sixty days and following the proper judicial procedures. To facilitate the process, the law should have made this the responsibility of the administration. The association's activities shall continue until the court issues a ruling.
Article 7 of the law stipulates the establishing of a committee and its membership. It states that one or more committees shall be set up within the jurisdiction of each court of first instance. An annual decision by the Minister of Justice shall be issued on the formation of this committee. The committee's head shall be at least a counselor of the court of appeal appointed by the court's general assembly with the following as members: a representative of the administration nominated by the Minister of Social Affairs, a representative of the regional federation nominated by the board of directors of the general federation of associations, and a representative of the association which is a party in the dispute, who shall be nominated by the organization's general assembly or the board of directors.
The executive regulations must include provisions to guarantee that the committee is held in its full composition when any dispute arises, and that members who do not attend the committee are replaced by another member to be selected by the competent authority. It is important to note that the law granted the President of the Republic the power to appoint the president of the general federation of associations and one third of federation members. As the committee is responsible for hearing disputes between associations and the administration, this article states that the committee shall not meet unless with the attendance of all its members, and that the committee shall issue its decisions within sixty days as of the date when the dispute was referred to it. Decisions shall be made be a majority of votes. In case of a tie, the side supported by the president shall prevail. In order to hinder access to the courts, the said article states that the suit on the dispute shall not be accepted by the competent court unless after a decision is made on the dispute by the committee, or after the elapse of the mentioned sixty days. The suit shall be brought within sixty days as of the day when the decision was made.
In this context, we would like to point out to paragraph two of article three, which states that "Each society that has as one of its purposes or performs an activity related to one of the NGOs referred to, even though legally constituted in a form other than an NGO, shall, as a requirement, be legally constituted as an NGO, and shall accordingly amend its statue, and shall apply for registration under the provisions of the attached law within the term provided for in the preceding paragraph. Otherwise, it shall be deemed as dissolved under this law, in which case, the provisions of chapter 4 part 1 of the law shall apply." This paragraph clearly shows an unjustifiable intervention in the affairs of other legal entities which are subject, in the organization of their activities, to other laws such as the companies law, even though some aspects of their activities may be within the activities stated for private societies and associations.
On the same issue, article one of chapter one of the new law is more arbitrary than Law 32 of 1964 in making the founding of an association more difficult. Said article stipulates that: "For the purpose of enforcing the provisions of the present law there shall be deemed as an association, each group of an organization continuing for a definite or indefinite period, comprising natural or judicial persons or both of them with a total of at least ten person in all cases, and oriented to a purpose other than material profit." In the cancelled law, the number of founders required was from two to ten. In the context of adding more restrictions to the founding of associations, item three of article three requires that the address of the association's premises must be included in the application. This would raise a question about the status of the association applying for registration, and not for adapting its legal form to the new law. Will it actually carry out its activities and then apply for registration? And in this case, shall its activities be considered against the law? Or shall it apply without mentioning the address until the registration takes place?
The provisions of article four raise another question. This article states that: "In no case shall a statute of an association stipulate for its property to return, upon termination, to any party other than the NGO Assistance Fund or any other association or NGO or federation governed by the provisions of this law." This differs totally from what was stated in the previous law, as the article restricts that an ‘endowment' may be dedicated to the activities of the association in order to provide local sources of finance, which shall, in case of dissolution, be returned to those who contributed to it, and not to areas unlawfully determined in this article.
Article twelve states that civil servants may be delegated to work with associations to provide necessary support upon the association's request. The assignment shall be for one renewable year upon a decision by the competent minister and subject to approval by the Prime Minister or his deputy. There is no need for the consent of the prime minister, and that of the competent minister should be enough in order to facilitate the procedure.
Although EOHR appreciates the positive points included in article 13 regarding the exemptions given to associations, paragraph 3 of this article, which deals with exemptions from custom duty and other duties on imported equipment, tools, production requirements as well as gifts, donations and grants received from abroad, states that this exemption shall be "under a resolution by the Prime Minister based on a proposal by the Minister of Social Affairs and presentation by the Minister of Finance, on condition that these objects are necessary" the association's main activity.
Given the enormous responsibilities of the Prime Minister, this procedure must be made easier. A permanent committee appointed specially for this purpose must be commissioned to take up this responsibility in order to facilitate the bureaucratic procedures. It should be noted here that the executive regulations must extend this exemption to include all taxes, specially those on cultural events held by associations to raise funds. In the same context, it is important that the executive regulations define the service and productive activities which are not considered profit-making in order to avoid that associations be held accountable for performing illegal activities.
In addition, article 16 restricts the right of associations to join, collaborate with, or affiliate to a club, association or organization based outside Egypt to those that practice activities that do not conflict with the purposes of the association. It further stipulates that the administration must be notified, and that sixty days must elapse after this notice without a written objection by the administration.
Moreover, article eight gives the administration the right to object against the association's statute or its founders.
Article 17 of the law gives the association the right to receive donations or to collect them from natural or judicial persons, but it left it to the executive regulations to define the manner in which this shall be done. However, the same article states that permission must be obtained from the Minister of Interior before receiving funds from a foreign individual or body or their representatives in the country, and before sending funds to individuals or organizations abroad. This condition raises fears about the bureaucracy involved taking into account the current number of around 15 thousand associations.
More complications follow. Article 19 states that all the records of the association must be stamped by the administration before they are used. This restriction disregards the personality of the association. It should have sufficed to stamp the records with the association's seal. Also, it must be pointed out the obscurity and uncertainty of article 23, which states that:
In cases where an association issues such a resolution that the administrative body deems to be in conflict with the law or its statute, the administrative body may demand the association, by a registered letter with an acknowledgement of receipt, within ten days from being so notified under Article 38 hereof, to withdraw the resolution.
Should the association fail to withdraw such resolution within fifteen days from being so notified, the administrative body shall have the right to submit the matter to the committee set forth under article 7 hereof. Each party concerned shall have the right to challenge any resolution to be issued by the committee before the competent court.
3. Eroding the Jurisdiction of the General Assembly
Article 25 of the new law gives the administration the right to invite the general assembly to convene. This invitation is made through the appointed commissioner according to article 40 of the law. This article states that in case the number of directors is not sufficient for a valid meeting, "the Minister of Social Affairs may, if necessary, subject to consultation with the General Federation of NGOs and Associations, appoint, under a justifiable decision, a commissioner from among the rest of directors or otherwise, who shall be vested with board of directors' terms of reference." He shall convoke the general assembly, within 60 days, to elect a new board of directors. In case the assembly has not been invited within this period, it shall be deemed invited by virtue of the law on the first Friday following the elapse of the mentioned period. The executive regulations (!) will determine the arrangements for this meeting. The task of the commissioner ends with the election of the new board of directors.
The above article should have stated that, in case the number of directors is not enough to hold a valid meeting, a new date shall be set for another meeting, which shall be valid with those who attend it and shall make its decision by a majority of attendants. This board shall have the right to convoke an extraordinary general assembly to elect a new board of directors without the need for the commissioner's intervention, who is given the jurisdiction of the board of directors! The purpose of this is to ward off any possibility of intervention by the administration, which can deliberately aim for the non-attendance of members of the board of directors in order to get rid of a board with which it is not satisfied.
In the same context, associations are compelled to send to the administrative body a copy of all the documents submitted to the general assembly. The administrative body has the right to delegate a representative to attend the assembly and to send a copy of the minutes to the administration (article 26).
4. Intervention in the Affairs of the Board of Directors
Article 34 permits the administration, and any party concerned, to notify the association of those it believes should be excluded because they fail to meet the conditions for candidature to the Board. In case the nomination has not been withdrawn within 15 days as of the date of notifying the association, the administration shall have the right to refer the matter to the committee mentioned in article 7 of the law. Challenge against the committee's decision shall be made before the competent court, which shall decide upon the challenge before the date scheduled for the election. The following phrase should have been added to the text of this article: "In case the court has not made its decision by the date of the election, the election shall be postponed until the court has settled the challenge."
Also, the board of directors must notify the administration its decisions, as well as those made by the general assembly, within 30 days of their issuance (article 38).
5. Dissolution of an Association
Administrative intervention is clear in the provisions of article 42 of the law, which state that associations may be dissolved by a ruling of the competent court, at the request of the administration and after following the normal procedures for filing lawsuits, in the following cases:
1. Allocating its funds for purposes other than those for which it was established.
2. Receiving or sending finds from or to a foreign party, in contravention to article 17 of this law.
3. Committing a gross violation of the law, or the public order or morals.
4. Failure to hold the general assembly for two years successively or failure to convene the assembly at the invitation made in implementation of paragraph two of article 40 of the law.
5. Joining, collaborating, or affiliating to a club, association or an organization based outside Egypt in contravention of article 16 of the law.
6. Existence of proof that its aims are to target or practice activities prohibited by article 11 of the law.
7. Collecting contributions in contravention of paragraph one of article 17 of the law.
Paragraph two contains a particular implication. It deprives these institutions of sources of funds which can meet the requirements of their activities in the absence of a culture that believes in the role of human rights organizations, and which traditionally believes that the channels for donations and support are confined to charity societies. Also, the social role of businessmen does not extend to activities which monitor and investigate human rights violations by the authorities, as this would definitely put businessmen in confrontation with the authorities, and maybe even persecuted in case they support human rights organizations. Article 17 goes further in the restrictions it imposes: it states that: "In all cases, no association shall have the right to obtain money from abroad either from an Egyptian or foreign person or a foreign body or its local representatives."
Moreover, the flexible and inexact wording of paragraph three show the discretionary nature of what is a gross violation of the law, public order, or morals. Even worse, article five prohibits joining, collaborating, or affiliating to a club, society or organization based outside Egypt in contravention to the provisions of article 16 of the law. It must be noted that in the field of human rights, given the universality of the human rights movement regional and international links are common among organizations.
It is also important to point out to the following phrase in article 42: The competent court, whenever it is requested to do so, may issue an urgent order, within a maximum period of three days, to stop the infringing activity until a decision is made on the dissolution request. When the administrative body presents its request for dissolution before the competent court, this is given the right to issue an order to stop the activity within a maximum period of three days until a decision is reached on the dissolution. Given that the conditions included in this article are of a discretionary nature, such a firm and prompt reaction would destroy the association. Moreover, such haste is not provided in article six, which deals with the right of the founders' representative to challenge the administration's decision to reject the registration. The provision should have stated that the competent court, whenever it is requested by the founders' representative, shall make an urgent order, within a maximum period of three days, to decide the validity of the justifications for the refusal of the administration, and at the same time, to allow the registration of the association and the practice of its activities until it issues its final decision on the matter.
In all cases, the rule is that it is the jurisdiction of the general assembly to oversee and hold the board of directors accountable, and to withdraw trust from any of its members in case of violations of the association's statute. However, the new law not only takes away this jurisdiction from the general assembly but also makes an arbitrary identification between the association as a whole and any possible excesses committed by the board of directors. The law deliberately goes beyond this by stating the dissolution of the association, a procedure which morally constitutes an assassination of the association. In such cases, the association should continue its activities and the board members responsible for the violation should be held accountable according to the statute and to the relevant legal provisions.
Article 68 concerns the boundaries of the intervention of the President of the Republic in the structure of the general federation of NGOs and associations, which consists of thirty members. The President shall appoint the federation's chairman and ten of its members. This raises the issue of appointing members of the board of directors of the NGOs Support Fund in light of the provisions of article 71 of the law. Five members at least should have been left for direct and free election from among chairmen of boards of associations and NGOs. They must meet the conditions of nomination (i.e. that the organization was established according to the provisions of the law; that the reports of the auditor, its balance sheet and its closing account on the three years previous to the nomination would assert its sound financial situation (!); and that it has not committed any of the violations stated in the law in the five years previous to the nomination) after consulting the General Federation of Associations and NGOs, and provided that each of the five members shall represent a different specific activity.
6. Removing the Jurisdiction of the Administrative Judiciary
The new law, particularly in article two, states that: "… the competent court shall mean the court of first instance within which jurisdiction there lie the headquarters of the non-governmental organization or society, or the general, activity-specific or regional federation as the case may." This provision thus removes the jurisdiction of the administrative judiciary to hear disputes between civil associations and the administration and passes this jurisdiction to the civil courts. This is meant to avoid the powerful and neutral administrative judiciary in dealing with disputes between the state institutions and individuals and groups. This branch of the judiciary is celebrated for making very important rulings that are respected by all parties.
7. Exaggerated Penalties without Social Need
Article 75 points out that: "First: He who established a clandestine association or practices any of the activities provided for in items 1, 2, 3 of Article 11 hereof shall be penalized with imprisonment for a period not more than one year and a fine of no more than 10,000." Paragraph two and three state more lenient penalties. It is common knowledge that according to the principle of the legitimacy of punishment, the legislature should only penalize acts where there is a crucial need to do so. The reason for this is that punishment of acts is a detraction of the freedom of individuals and a restriction on their rights. Therefore, punishment must be associated with the protection of the interests of society, as their protection and observation is more important than the detracting the freedoms of the people. Except for acts that directly violate the provisions of the Civil Code or the Code of Criminal Procedure, and given the voluntary and social nature of civil work, no imprisonment sentences should be stipulated for social activities, the restriction of which has been a subject of substantial objection as it violates the Constitution, the law and the International Bill of Rights. It should have sufficed the stipulation of fine penalties instead of imprisonment, which will be an obstacle in the way of people's participation and discourage them from taking a role in civil work.
Finally, there is a contradiction in the new comprehensive philosophy on civil work. Those who created it thought that it achieves the balance between the freedoms and responsibilities of voluntary work, and between the rights and duties it should observe. However, claims of facilitating the founding of associations are challenged by article 11 of the law, which discredits the law altogether for the hegemony it grants the administration over the work of civil society institutions.
In light of all the above, and through the constant dialogue and exchange of opinions among human rights organizations, EOHR concludes the following:
1. The general philosophy of the law should be oriented towards liberating civil society institutions. This would be achieved by giving individuals the right to set up institutions at their free will, allowing them the right to determine the fields of activity and set the regulations that would organize their work, and deepening the role of general assemblies in overseeing and controlling the leading bodies of institutions. This would be complemented by stressing the principles of transparency, accountability and self-supervision, in accordance with article 55 of the Constitution.
2. Registration must be made by notification. This means that the legal personality of an association exists as soon as the founders' representatives notifies the administration. In case of objection by the administration, this shall resort to the courts within a maximum period of 30 days as of the date of the notification.
3. The general assemblies of associations are their highest power. They decide the general policies of the institution, determine the areas of work and the activities, elect the board of directors, supervise it, and approve the annual budget. The administration does not have the right to intervene in the work of the general assembly, including the selection of its leaders.
4. Civil associations must have the right to develop their resources and obtain funds for their projects from individuals and institutions inside or outside Egypt. However, they should: notify the administration of the sources and amounts of funds and the projects and programs for which they will be used; adhere to established accounting principles; maintain and make available to any concerned party all the records; and announce their accounts after they have been audited by an external auditor appointed by the general assembly.
5. General assemblies cannot be dissolved by administrative decision. The administration has to resort to the court in case it has specific reasons for the dissolution of an association.
The new law repeats the shortcomings of Law 32 of 1964 in many specific and substantial points of the work of civil associations and societies. It even invented legal formulas that, if implemented, will tighten the nose on civil work. EOHR does not deny its positive aspects, although on secondary matters, but ultimately the law frees the hand of the administration when it comes to the fundamentals of civil work. Laws are not a goal to achieve, they are means to govern relations and social interactions and the variables that emerge with them. Legal provisions acquire sacredness and respect through general acceptance and agreement. EOHR is not against a law to organize civil work, and it is not against observing the higher interests of the country and protecting national security. However, it considers that these are the competencies of other authorities, and not the responsibility of the Ministry of Social Affairs.
All civil society institutions in Egypt are called upon, more than ever before, to show solidarity against this law and highlight its shortcomings and its implications, which will abort the role of civil society institutions, and particularly of human rights institutions. It seems that the government became impatient with the latter and decided to get rid of them under cover of the new law. All organizations and institutions are called upon to show solidarity and cooperate to revoke this law by all peaceful means, so that it meets the same fate as Law 32 of 1964.
