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Critical Analysis of the New Associations' Law
EOHR Report

4th July 2005

Immediately before Associations Law 84 [2002] was passed, the Egyptian Organization for Human Rights (EOHR) issued a related report entitled "The new Associations Law: Nationalisation of Civil Society in Egypt" addressing the negative aspects of the then-draft law which was being discussed in the People's Assembly. In its report, EOHR warned that the draft law had neglected all the legal questions of the law that were not in conformity with the Egyptian constitution, these questions were previously raised by the Constitutional Court in its verdict ruling the previous Associations' Law (Law 153 of 1999) unconstitutional. EOHR, in its report, reaffirmed that the draft law was nothing but a copy of its predecessor.

EOHR, in its report, pointed out the five constitutional principles used by the Constitutional Court to rule Law 153 [1999] unconstitutional, these were:

1. The court emphasised that the right to form associations is a non-derogable right that may not be restricted. International instruments, too, have often reiterated the importance of that right through various documents including the Universal Declaration of Human Rights (article 20) and the 22nd article of International Covenant of Civil and Political Rights which ban restricting those rights. The Constitutional Court also emphasised that Egyptian constitutions have consistently protected and guaranteed the right to establish associations; this right is currently enshrined in article 55 of the Constitution.

2. The Constitutional Court also addressed the Constitution's emphasis on imposing restrictions on the legislative and executive branches to protect the rights and public freedoms granted by the Constitution, especially the right to establish associations, to prevent the two branches from trespassing on or restricting these rights and freedoms.

3. The court also emphasised that non-governmental organisations (NGOs) are the link between the individual and the state, and make a major contribution to individual development by awareness raising, spreading knowledge and raising citizens on a culture of democracy through a culture of constructive and free debate. Non-governmental organisations are also, according to the court, the means to aggregating individual and group efforts and potentials to bring about social, economic and political development, to influence public policy, entrench social solidarity and aid the government.

4. The court also entrenched the right to establish civil associations as an integral part of the freedom of assembly which must stem from a free personal choice uninfluenced by any administrative intervention and independent of any government body. This fundamental principle has been granted constitutional importance in some countries - including Egypt - and allows interested individuals to belong to associations they deem representative of their interests and goals. This right is an integral part of citizens' personal freedoms, a principle emphasised by the Constitution. Under article 41 of the Egyptian Constitution this right is a non-derogable natural right

5. Under this principle, the court stressed that freedom of expression is guaranteed by article 47 of the Constitution as a fundamental right and prerequisite for any constructive and free debate. The right of assembly is useless and ineffective if freedom of expression is not protected. Thus, according to the court, the right to assembly and freedom of expression combined form a pillar of personal freedom that may not be restricted without objective administrative and legal procedures mentioned in the Constitution or bound by the law. Hence, the right to establish non-governmental organisations, and other related rights, are considered fundamental constitutional principles. The court also reaffirmed the unconstitutionality of the law and refused to discuss the details of why some of its articles are not in conformity with constitutional principles.

Egyptian legislators should have adhered to the five principles declared by the Constitutional Court when drafting the current associations' law, however, they failed to do so and insisted to operate under Law 153 after renaming it Law 84 [2002] which differs, from the old law, in minor details only. The new law, in effect, only strengthened the grip of the administrative bodies on NGOs in Egypt opposing the articles and provisions of Egypt's constitution and international human rights instruments.

EOHR's report, "Critical Analysis of the new associations' law," highlights the restrictions blockading NGOs in Egypt under law 84 [200] and includes three sections:

1. The disadvantages of the new associations' law (law 84 of 2002)
Law 84 [2002] is not only a carbon copy of Law 32 [1964] and Law 153 [1999] but rather imposes further restrictions on civil society activity in Egypt by giving wider powers to the authorities to restrict the establishment of NGOs, their activities and their sources of funding. This section deals with the disadvantages of Law 84 the most important of which are the following:

2. NGOs under law 84 [2002]
This section examines the social institutions and NGOs refused registration by the Ministry of Social Affairs and those dissolved by it. It also describes other associations which received registration either through court verdicts or under Law 84 [2002]. These sample cases were monitored and documented by EOHR in 2003 and 2004.

3. Conclusion and Recommendations
In view of the fact that NGOs are an essential partner in development, the Egyptian government should abandon its hostile attitude towards these NGOs, especially those with long history and experience in the fields of human rights and democratic reform. This should happen through the lifting of legal, administrative and financial obstacles which currently hinder the work of civil society in Egypt as well as through enhancing, spreading and encouraging a culture of human rights and democracy in society. These organisations are the main link between the people and the government. This will only come about when the environment in which these organisations operate is reformed and a new associations' law drafted.
This section deals with the main demands and recommendations of EOHR to the government to promote civil society in Egypt.

Section One: The disadvantages of the new associations' law (law 84 of 2002)

Article 55 of the Egyptian constitution states that "citizens have the right to form associations as defined in the law The establishment of societies whose activities are hostile to the social, system, clandestine or are of a military character are prohibited."

Article 22 of the International Covenant for Civil and Political Rights (ICCPR) - ratified by Egypt and incorporated into Egyptian law by virtue of article 151 of the Constitution provides for the right to establish and form associations:

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of interests.
No restrictions may be placed on the exercise of this right other than those which 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.

With complete disregard for this, the Egyptian government has restricted the establishment and work of NGOs by means of various laws passed to control civil society. Law 32 [1964] is possibly one of the most prominent and notorious of these restrictive laws, which placed it under fire from civil society associations and organisations. When the government later introduced draft laws to replace law 32 [1964] NGOs succeeded in campaigning for open debate and discussion of draft laws forcing the government to accept the participation of civil society and human rights leaders in the Legislation Drafting Committee.

As law 153 [1999] came into effect, the state once again announced its intention to maintain a grip on civil society, neglecting the demands of activists as well as the findings and conclusions of the Legislation Drafting Committee -dominated by governmental figures. Within a year the law was declared unconstitutional by the Supreme Constitutional Court, on 3rd June 2000. The speedy drafting of the law, and the rapid debate and vote on it in the People's Assembly not only reflect procedural errors in the law-making process which led to the unconstitutionality of the law, but also reflects the uncertain nature of the government's actions and practices.

Law 84 [2002] was in the end a carbon copy of its predecessor, but increases the administration's grip on Egyptian civil society. The law includes various procedures and tools preserving the administration's ability to supervise and intervene in civil society by setting red lines. This was clearest in the controversial debate between the administrative authorities and anti-law 84 groups over article 42 of the law which grants the administrative authorities the right to dissolve associations. The debate extends to article 2 which gives the administrative judiciary the task of settling disputes relating to NGOs, which implies the administrative judiciary's supervision, of, and interference in, NGO affairs. Under the law, the administrative authorities have the power to supervise associations' compliance with registration regulations, inspect the aim and goal of these associations, membership regulations and election of boards of directors. The tasks delegated to the administrative judiciary also include inspecting and monitoring the work and budget of NGOs as well as determining the degree to which these organisations abide by their declared objectives, and spending.

The major disadvantages of the new associations' law 84 [2002] may be summarised into:

1. Restricting NGOs' work by increasing the list of prohibited activities

With the progress of global economic systems and the social rearrangements of the new world order promoting free markets, NGOs have come to play the state's role in maintaining stability. They are increasingly becoming a "partner in development". This message was consistently conveyed during United Nations conferences during the 1990s such as the Earth Summit (2002, Rio de Janeiro) the International Conference on Population and Development (1994, Cairo), the World Conference on Women (1995, Beijing) and the World Summit for Social Development (1995, Copenhagen), all of which reflected the importance of the role played by civil society as a partner in development. Thus, laws which govern civil society should be a reflection of that stance and an application of the partnership principle. Studies on the development and promotion of civil society have been conducted worldwide based on this new understanding. Nonetheless, Egyptian legislators have failed to understand this and insisted on enacting law 84 [2002] despite the criticism directed against it, thus restricting the right to association which is enshrined in the Constitution. Under article 11, restrictions are placed on NGO work unprecedented in the Constitution; the legislator has added to the activities NGOs may not pursue, it state:

NGOs may work to attain their goals in the various fields of social development according to the regulations and procedures stated in the executive statute, and upon the approval of relevant administrative bodies, NGOs may pursue goals in more than one field. Secret societies may not be formed, and NGOs may not pursue any of the following activities:

These provisions are in clear disregard for the Constitution which exhaustively lists the red lines imposed on NGOs and does not include any of the above-mentioned activities. Political activism, for instance, is broader than partisan activism; while parties operate politically with the sole aim of a peaceful transition of authority while NGOs operate merely to raise public awareness, foster a culture of democracy and promote tolerance, a goal political parties do not share with NGOs.

Egyptian legislators turned a blind eye to critics of article 11 of the law which is a carbon copy of law 153 [1999] - ruled unconstitutional by the Supreme Constitutional Court. In doing so, and reaffirming the same restrictions and provisions, the Egyptian legislator made the critical decision to overlook the legal and constitutional objections put forth by jurists and civil society activists. Article 11 of law 84 [2002] is a cornerstone of law 84 as it delegates the organisation and monitoring of NGOs to extra-legal authorities.

2. Restrictions on NGO establishment
Violating the democratic principles enshrined in the Constitution is precisely what article 6 of the law does; the article establishes custodianship and tightens the administrative grip over the organisation and establishment of NGOs. The legal personality of an NGO should come into existence from the moment that the representative of its founding members informs the relevant administrative bodies of the establishment of the NGO. However, the current law - in article 6 - states that founding members must wait for 60-days during which objections to the NGO's establishment may be put forward. Only if no objections are presented within the 60-day period, is the NGO considered legally recognised and holds a legal personality. If it comes to the knowledge of the administrative bodies that any of the activities prohibited by article 11 are amongst the goals of the NGO, it should present a reasoned refusal to the representative of the founding members, who, in turn, has 60 days to appeal in court.

In addition, Article 8 of the law gives administrative bodies the right to object to the establishment of an NGO if it sees a reason to object regarding the basic structure or founders of the organisation.

Reference should also be made in this context to article 4(2) of the Issuing Law which states that "any group which pursues activities associated with NGOs should take the form of an NGO and should formulate their basic structure in conformity with that and apply for registration according to the annexed law. Otherwise, the group is automatically and legally dissolved. Private institutions are prohibited from pursuing activities associated with NGOs without themselves taking the form of NGOs." It is clear from this article, that unjustified intervention, of the type destined for NGOs, may be made in the affairs of other kinds of groups.

3. Restricting NGOs right to litigation
Law 84 [2002] restricts the right to litigation. Under article 7 of the law, a committee has responsibility for settling disputes between the administrative bodies and NGOs. The article describes the composition of the committee and the shortcomings of its membership arrangements. The law establishes one committee or more in each governorate whose composition is determined annually by a decree issued by the Minister of Justice. The committee must be headed by a counsellor, of at least appeal court rank who is nominated by the court's general assembly. The general assembly's membership consists of:

The committee examines disputes between associations and administrative bodies. Its sessions are not to be enacted unless the committee head and at least two of its members are present. Adding to the slow proceedings of the committee and restricting the freedom of association is the article's provision that no complaints will be accepted and looked into by courts unless the committee issues a verdict in a dispute brought to its attention. Complaints are to be raised within 60 days from the date a decision is made by the administrative authorities. The committee, with its government-like structure, is similar to mandatory arbitration committees; the inability of courts to look into disputes unless a committee verdict is issued is noting but an additional barrier in the face of the right to litigation. This concern was made by the Supreme Constitutional Court in two separate cases. It stated that "the Constitution enshrines the right to litigation for everyone and prohibits the burdening of disputes with unnecessary procedural, financial and administrative procedures."

4. Impeding NGO work through the imposition fund restrictions
Noteworthy, article 13 of the law grants associations several exemptions, the third clause of the same article exempts associations of taxes and tariffs imposed on imports of material and equipment. The exemption is made upon the request of the Prime Minister following a recommendation made by the Minister of Social Affairs and an offer submitted by the Minister of Finance, and on condition that the imported material is necessary for the fundamental operations of the NGO - determined by the Prime Minister. Necessity proves that procedures for the exemptions should be made easier and the authority of the Prime Minister, the Minister of Social Affairs and the Minister of Finance delegated to a permanent committee that avoids bureaucratic practices and complications. However, the ninth clause of article 13 imposes taxes on all donations made to associations after deducting a 10% allowance, which we request be made 20%.

Article 17 of the law deals with the means and tools by which NGOs may receive grants from domestic and foreign sources while allowing NGOs to collect funds, grants and donations from the public with a statute proclaiming the necessary procedures for that. These procedures include presenting a request to the administrative body for permission to collect such donations. The request should also include a time frame and the geographical area covered . The authorities are given 15 days to determine whether or not they shall grant permission.

If donations are to be made by foreign persons or entities, the Ministry of Social Affairs' permission is mandatory. The law does not explicitly state the necessity of acquiring such permission if donations are collected from local or domestic individuals or entities.

Article 21 of the law demands NGOs' accountants to present an annual budget. The accountant must be registered as an officially-accredited auditor if the earnings exceed 20,000 pounds.

5. Robbing NGO general assemblies of their responsibilities
In the course of tightening the administrative grip on NGOs, article 25 of law 84 [2002] gives administrative bodies the right to hold meetings via an individual appointed under article 40 Where the quorum necessary to hold an executive board meeting is not attained the Minister of Social Affairs may, after consulting the Associations' Union, nominate a delegate drawn from amongst the remaining members or from elsewhere if necessary through a decree accompanied by reasons. The delegate will have the competencies of the executive board and must convene the NGO general assembly within 60 days in order to elect a new board of directors. If a meeting is not convened within 60 days, the general assembly is enacted by force of law in the following general assembly pre-determined date. The delegate's mission is considered over upon the election of a new board of directors.

The article highlights the legislator's organised and permanent interference in NGOs' internal affairs; it would have been preferable if this article had established a time frame for the enacting of the board of directors where the quorum for an executive board meeting is not attained, a time period is specified for the holding of a board of directors' meeting attended by any number of its members. Decisions are taken by simple majority. The board may call for an emergency general assembly to elect a new board of directors without the need to appoint a Ministry of Social Affairs delegate and without the need either for unnecessary Ministry of Social Affairs interference in NGO affairs or for the general assembly to be relinquished of its competencies. Article 23 of the law also gives the administrative authorities the right - in the form of a registered letter - to demand the reversal of decisions passed by the board of directors where the authorities deem them unlawful, illegal or not in conformity with the basic system of the organisation. If the NGO refuses to withdraw its decision within 15 days of the request, the administrative authorties may refer the matter to the committee described in article 7 whose decisions may be appealed in court by anyone with an interest in the matter. This strips the general assembly of its power to supervise board of directors' activities.

6. Intervention in Board of Directors' affairs

Article 34 allows the administrative authorities and all parties with an interest in the NGO, to notify it of the names of individuals they believe do not fulfil the conditions for membership of the board of directors within 7 days of the announcement by the board of directors of the candidates for board of directors' membership. The administrative authorities must be informed within the following 3 days and 60 days prior to the elections.

If the candidate in question refuses to withdraw within 7 days, the administrative authorities and those with an interest in the matter may refer the issue to the committee described under article 7 of the law within the following 7 days. The committee must then select a time and issue its ruling within the following 10 days. The administrative authorities and interested parties may appeal the decision to the relevant court within 7 days of the ruling; the court in turn must issue a verdict prior to the date of NGO board of director elections. However, the article does not offer state what happens in the event that the court is unable to issue its verdict before the election date - that is, whether the election should be postponed or not. It also makes no reference to which body should issue the decision the postponement; the court, NGO, committee or administrative authorities.

7. Dissolving NGOs through administrative decrees
The legislator were still not satisfied with the various means of intervention granted to the authorities to interfere NGOs' internal affairs; they further wanted to make the administrative authorities both the judge and plaintiff in in NGO affairs. The Minister of Social Affairs has the right to issue a decree dissolving NGOs under article 42. Of note is that Law 153 [1999] gave NGOs the right to object to court verdicts, this right is absent in the new law - as if NGOs are being punished for challenging the constitutionality of the law in the Supreme Constitutional Court. Legislators describe several reasons for which the Minister of Social Affairs may dissolve an NGO; these reasons are very vaguely defined. For example, the law states - amongst other conditions - that a "grave violation of the law" must have taken place without making any reference to what "a grave violation of the law" means and the by which the gravity of the violation may be measured. In addition, references to "public morals" and "public security" remain vague - in conflict with statements made by the Supreme Constitutional Court which demand that penal provisions be defined unambiguously . That is to avoid misinterpretation and manipulation of the text which will only allow for the manipulation of rights enshrined in the constitution and used as a pretext to violate these rights, particularly the right to freedom of expression.

This implies the necessity to clearly define penal codes to avoid broad application of penalties. In addition, most of the conditions under which the administrative authorities are allowed to dissolve NGOs fall within the general assembly's competencies with regard monitoring board of directors' activities since it is, originally, the task of the general assembly to monitor the board of directors, hold it to account and withdraw confidence in it. The new law robs general assemblies of their rights and jurisdiction with regard to board of directors' violations and allows them to dissolve NGOs - which strikes a lethal blow to civil society. In order to ensure continuity the NGO should remain responsible for holding its board of directors to account for transgressions of the NGO's founding statute and other laws. Even worse, the law gives the Minister of Social Affairs the power to define violations and dissolve an NGOs.

8. Penalties restricting voluntary work
The philosophy of civil and voluntary work, which depends on non-profit and voluntary contribution, is that of partnership in development. This philosophy is at odds with the legal provisions governing NGO activity and the harsh associated punitive measures which include imprisonment. Penalties have been harshened to such an extent that, under article 42, the penalty for transgressions by the board of directors is dissolution of the NGO. This violates article 66 of the Constitution which provides for individual criminal responsibility and prohibits mass punishment for an individual action. This was made clear by the Supreme Constitutional Court in case no. 25 when it stated that only the individual found guilty of a crime should be punished for it. The Constitution therefore enshrines individual criminal responsibility, confirming its binding nature.
The law also harshened penalties by imposing prison sentences of no more than one year and fines not exceeding 10,000 Egyptian pounds for infringements of article 76 which concerns activities described in article 11(1),(2) and (3) .
The law also imposes six month prison sentences and fines of no more than 1,000 Egyptian pounds for crimes listed under article 76(2) with the aim of containing any form voluntary work and intimidating NGOs who may be dissolved or their activities suspended if they gather funds without the consent of the administrative authorities.

9. Joining international coalitions
Article 16 of Law 84 [2002] restricts NGOs' right to join and associate with international clubs, associations, organisations and groups whose headquarters are outside Egypt.
The legislator stipulates that the international organisation's activities must not conflict with those of the NGO seeking membership of it. Prior notification and permission must be obtained from the Ministry of Social Affairs despite the fact that the article provides that only "prior notification" is necessary as opposed to permission. A response should be given 60 days. Where no written objection from the administrative authorities is received they are considered to have given their approval.

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