Preface:

The Egyptian government passed the NGO bill of law in May 2002 to replace law 153 of 1999, which was held unconstitutional by the Supreme Constitutional Court on 3 June 2000 because it was passed to the Shura Council and because of the substantive unconstitutionality of some provisions.  Since the abolishment of law 153 of 1999, the government has been studying the new bill; but unfortunately, it has not reviewed the reasons for the rejection of law 153, entirely disregarding the recommendations and the ambitions of civil society associations.  These associations are especially concerned with article 42 of the new bill, which further weakens their position before the law as it grants the Minister of Social Affairs the right to dissolve associations and non-governmental organizations by an administrative decree.  By this article the government exercises complete control over civil society.  This philosophy is a socially debilitating one, which aims at imposing the hegemony of the state on all activities of society and which breaches all the International Covenants concerning the protection of the freedom of associations. 

In this regard, article 20 of the Universal Declaration on Human Rights. Article 22 of the International Covenant on Civil and Political Rights states,

As well as the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms and other Human Rights instruments affirm the right to organizing and establishing associations, as follows:

1. The role of the associations is to promote the civil society in the existence of democratic frameworks as well as the respect of the principle of the sovereignty of law.

2. Everyone has the right to participate in establishing, managing, affiliating to and withdrawing from associations in order to achieve a non-profitable objective or objectives, and in return, the association has the right to benefit from the independent personality who enjoys the rights and freedoms.

3. 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.

4. The state shall cooperate with civil society to install an organizing framework that encourages the practice of the freedom of associations and that promotes an independent, active and democratic civil society. The Public Directorate shall deal equally with associations without discrimination.

5. The basic legal principle that guarantees the freedom of associations is the right to be established without obtaining permission or a license, as the association is established according to the initiative of its founders, who may then simply give notification of the association’s establishment. The administrative or the judicial authorities shall not interfere in the establishment of the association.

6. The objectives of associations, their systems, their founders, identities, numbers, or whatever their activities shall not constitute a reason to create restrictions or obstacles to their establishment.

7. The administrative founding measures shall not be put through the notification system because this system obstructs and restricts the founding of the association. These measures shall be simple, clear, and free and shall not be subjected to the authority of the administration.

8. The association enjoys the independent personality of its members after the notification of its establishment. This independent personality has its rights such as civil and financial independency and the right to file cases against any violations of its rights or against the achievement of its goals. It shall also have the right to receive funds, aids and donations.

9. The association has the right to amend freely its systems such as its objectives and activities at any time according to the principles of founding associations without the intervention of the Public Directorate.

10. The association shall be managed by its board according to its internal regulations. The Public Directorate does not have the right to intervene in the associations’ meetings or elections or activities.

11. The association has the right to receive profits from its financial resources including the donations of its members, grants, and aids. The association can also carry out activities that achieve profits, which are then used in its activities without giving these profits to its members.

12. The State shall exempt the associations from taxation and furthermore encourage donors and funders by subtracting a proportion of the donations or funds from their taxes. This privilege shall not be used by the administration as a tool to intervene in the associations’ affairs.

13- Granting the association freedom does not mean the absence of monitoring and questioning. All associations shall be accountable before the concerned bodies, which are:

A-    The members of the association can intervene in all its affairs.

B-    The public opinion and the society can intervene in the case of an existing public interest such as the financial transparency when the association is looking for funds from the public fund.

C-    The normal judiciary.

D-    The Public Directorate (only the financial monitoring department) in the case that the association benefits from privileges or special taxations systems.

14- The principle of equality between breaches and punishment shall be implemented. Criminal punishments shall not be sentenced against the associations or their members. In all cases the judiciary is the only body that can issue punishment sentences along with the guarantee of a fair and impartial trial.

15- The principle that the Public directorate does not have the right to dissolve an association shall be upheld. The association shall not be dissolved except by a decree of its body or by a final judicial decree, on the condition that the association benefited from the right to defense in an impartial and fair trial, or according to specific cases defined by the law.

Accordingly, the constitutional court issued its verdict on the 3rd of June 2000 in case no.153 of the judicial year 21. The verdict ruled that the NGOs law no.153 of 1999 is unconstitutional. This verdict was based on several important principles, by which the legislator should have abided when legislating and preparing a new NGOs bill of law. These principles are:

The first principle :

Everyone has the right to establish an association and this right is a fundamental one, so no restrictions shall be imposed to hinder the practice of this right. Article 20 of the Universal Declaration for Human Rights and article 22/2 of the International Covenant on Civil and Political Rights affirm this right and warn against the installment of obstacles to hinder the practice of this right. Moreover, the Egyptian Constitutions, from the constitution of 1923 to the present constitution, guarantee the right to establish associations: article 55 states, “Citizens shall have the right to form societies as defined in the law.”  

The second principle :

The Court affirmed that the constitution imposes restrictions on the legislative and executive authority in order to guarantee the implementation of public rights and freedoms headed by the right to assembly. Therefore, these authorities shall not intervene to hinder the practice of these rights or freedoms.

 The third principle:

The court affirmed that NGOs are the mediators between the individual and state. NGOs can promote the personality of the individual through spreading awareness and information and thereby exposing the citizen to democratic culture. Moreover, NGOs have the role of motivating the efforts of individuals and groups to increase social and economic development, to influence public policies, and to deepen social solidarity. The experiences of NGOs are ultimately meant to assist the government. 

 The fourth principle:

The court affirmed the right of citizens to form associations, which is a part of the right to assembly. This right shall be practiced by free will without administrative intervention. The Egyptian constitution includes the constitutional values of the guaranteed right to affiliate with associations, as well as the notion that individual freedom is a natural right, as expressed by article 41 of the constitution.

The fifth principle:

Article 47 of the constitution guarantees for the individual the right to express his opinion and to publicize it verbally, in writing, by photography or by other means of expression. Therefore, open dialogue is carried out under this right, and without it, the freedom of assembly loses its significance.  By this right, individuals are free and able to express their opinion and thought, as well as exchange their opinions abroad without any restrictions.

The right to assembly is connected to the freedom of expression because the assembly is a means and a channel to express opinion, exchange opinions and facilitate open discussion, providing a forum for collective thinking. Therefore, the establishment of an association, whether its objective is economic, cultural, or social, etc., intends by peaceful means to form a framework through which people can express their opinion.

The right to assembly is a component of personal freedom, which shall not be restricted except by the subjective methods and procedures specified by the constitution.

According to the above-mentioned, the right of the citizen to form an association is a constitutional right. When the court held law 153 of 1999 to be unconstitutional, it refused to discuss the articles of the law, claiming that it included unconstitutional articles.

 I.                   The Unconstitutionality of the Law

The right to form associations is affirmed by article 55 of the constitution, which states: “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 military character is prohibited.”

Thus, the constitution guarantees the right to form associations except those whose activities are of the following nature:

1-     Hostile to the social system.

2-     Clandestine.

3-     Military. 

Given that the constitution mentions the prohibited activities, the legislature should not further prohibit activities outside of these restrictions. It cannot be said here that the discretionary power of the legislature affords it the right to prohibit additional activities. The Constitution sets specific and clearly stated restrictions or constitutional conditions on these rights and public freedoms, which are as such 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 the right, as stressed by the Supreme Constitutional Court.

Asserted by court rulings, the legislature’s power in organizing rights is a discretionary one, unless they have been restricted in a way that sets limits to their 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 framework 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 23^rd 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 right therefore ensures that general assemblies should be 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. Moreover, the penalties and punishments shall not be expanded beyond those stated in the Penalty Code.

However, the legislator disregards the principles stated in this article, delegating the responsibilities of the association’s general assembly instead to the administrative body, and granting the administrative judiciary the right to dissolve associations and NGOs by the minister of social affairs’ decree ( article 42 &63 of the bill).