Along the lines of the protest law, which the government enforced to restrain the public sphere and hinder opposition, the government is planning to pass a bill to “regulate nongovernmental organizations.” Regulation here, according to the Ministry of Social Solidarity, which is leading the discussion on the draft law, is not meant to “regulate,” but regulation here is a facade for a covert political scheme. The objective is to hush up civic organizations to conceal the flagrant violations practiced by the state, and its disregard for human rights and development. If the draft bill passes, organizations that refuse to be hushed up and cooperate will cease to exist.
The bill was put forward for discussion earlier, as part of a media campaign that meant to slander a number of human rights organizations and prominent figures in the human rights field. This campaign is still ongoing, and is featured in articles and talk shows, spreading false charges filed at the attorney general’s office against several human rights organizations and their employees.
Such campaigns, which target civil society, have been recurring with every new regime that has come to power since the revolution, including the transition period under the Supreme Council of Armed Forces headed by Field Marshal Tantawy, Mohamed Morsi’s presidency, and finally the current administration of President Abdel Fattah al-Sisi. Such accusations are made — without providing any evidence — against human rights organizations, mainly to discredit their members, questioning their national loyalty and financial integrity, among other things. Apparently, those behind such campaigns believe that they can undermine the organizations’ ability to defy such a bill. The media is simply providing pretext for justifying the crackdown by the state.
While NGOs speak against the bill that restricts their activity and independence, the government responds by stating that those NGOs simply refuse to abide by any law that regulates civic action in Egypt, choosing to stay unregulated. This contradicts the fact that the NGOs, which oppose this legislation, participated in formulating all the legal proposals put forward for discussion after the revolution in January 2011. They even suggested that the law regulating civic action should conform to international standards, whether stipulated in agreements and conventions signed by Egypt in regards to the right of association or peaceful assembly, or those derived from the best practices in this field in other countries, which value the importance of civic action, and observe its independence as an opposition to various state authorities.
Unfortunately, the successive governments have only used NGOs’ participation in such discussions to enhance their image, and claim that civil society was an inherent part of the process, and that its opinion and suggestions were taken into consideration. The government, however, has always dismissed the suggestions of civil society organizations.
The Forum of Independent Human Rights Organizations has declared its disapproval of the new draft bill proposed by the Ministry of Social Solidarity, in a statement signed by 29 Egyptian organizations. The bill was described as the most oppressive legislation regulating civic organizations in the last five decades. The statement listed all the law’s provisions, which obstruct civic action, and target human rights organizations. The law simply has nothing to do with the government’s wish to “regulate” this field, but rather aims at subordinating human rights and independent developmental organization to the authority of the state, specifically its security apparatus, which violates the constitution that the government has breached on every possible occasion.
According to Article 75 of the 2014 Constitution, civic associations and foundations may be formed by notice only. They have the right to practice their activities freely, and the state’s administrative agencies may not interfere in their affairs. The article also prohibited the establishment or continuation of non-governmental associations and foundations, whose statutes or activities are secretive or which are of military or quasi-military nature. The constitution has thus defined what is allowed and prohibited, and that’s all the organizations opposing the new draft bill ask for. Any subordinate legislation should thus be in accordance with the constitution, especially when it comes to legislations concerning the practice of public rights and freedoms. Consequently, any legislation regulating the work of NGOs may not include any of the following infringements:
1. An abridgement of rights or freedoms. As long as a certain freedom is provided by the constitution it may not be abridged and has to be fully granted.
2. Total breach of rights or freedoms by denying them. Even if the constitution allowed the legislator to regulate a certain group of rights, they remain adopted in principle. Thus, while the legislators may interfere to regulate these rights, they are obliged to confirm this adoption. Therefore the laws may not deny or take these rights and freedoms away.
3. Imposing restrictions that impede the use of those rights or freedoms for individuals.
By applying the former standards on the recent draft bill, proposed by the government, we find that it is entirely divorced from Article 75 of the constitution, denying the right to organize and the right of peaceful assembly as fundamental human rights.
Article 4 of the draft bill prohibits all civic activities within any legal framework other than under associations and organizations licensed or amended pursuant to the new law. This in fact has nothing to do with the proper legal regulation of practicing rights and freedoms. This is precisely because the principle is that the legal entity under which an individual is to practice civic or human rights activities is their choice, and it is not lawful to force a real or nominal person to practice a constitutional right exclusively within a specific legal structure imposed by the state. Falling under the umbrella of a specific legal structure should thus be optional.
Some governments have tried to draw civic organizations to fall under the state’s legal framework by offering privileges and practical facilities within the law. This is possibly a valid method of regulation to encourage civic organizations to fall under the law. But criminalizing a constitutional right because the parties practicing this right chose not to fall under a specific legal structure, as is the case of the draft proposed by the government, is an infringement.
Additionally, Article 11 of the draft bill expanded on the restrictions of the civic organizations, overriding the restrictions provided in Article 75 of the constitution. The constitution only prohibited secretive, military or quasi-military activities. The new draft, however, added new prohibitions: disrupting “public order” or “public morals,” taking part in any political or union activity, and doing field research or surveys without the permission of the Central Agency for Public Mobilization and Statistics (CAPMAS). The new restrictions of the draft law are in violation of the constitution. They simply may be interpreted in a manner that would criminalize any activity by human rights or development NGOs, specifically in a context ridden with the shortcomings of law enforcement entities. In short, these restrictions will inevitably lead to the seizure of civil society.
The notification provision in the constitution, regarding establishing associations, needs to be carefully examined to determine what is meant by notification, and to what purpose. We need to further highlight how this notification provision has changed in the new draft to “registration” or “permission,” that is to be granted or denied by the official administrative body. The difference here is vast.
According to the legal definition, notification means informing the corresponding administrative body of the initiation of a legal activity. The purpose of the notification is, in fact, to enable the administrative body and the various government apparatuses, entitled to enforce the law, to control any illegal activity that might be practiced later by the applicant.
By applying this on establishing NGOs, the purpose of the notification stipulated in Article 75 of the constitution is noting the foundation of a new legal entity at the administrative body, with a specified name and registration number for reference, and pursuant accountability in case of violation of any of the restrictions provided in the constitution. Nevertheless, an establishment notification according to the draft bill has a different meaning altogether.
It is not really about informing the administrative body of the establishment, but it also gives the administrative body the right to reject the registration of the NGO within 60 days of the notification date. By doing so, the law puts the NGOs under the mercy of the administrative authority. This does not apply only to the establishment phase, but according to the bill, the administrative body should be notified of any collaboration with governmental and non-governmental foreign organizations, which is also left for the administrative body to approve or reject within 60 days of notification.
It is well known that NGOs depends on raising funds, both nationally and internationally, to perform their activities and duties. These funds are, of course, subject to taxation, and they are restricted by the provisions in the constitution related to performing any activities that are secretive or of military or quasi-military nature. Therefore, there is no vacuum in existing legislation in this regard, since the criminal charges related to using these funds in any illegal or criminal activity are defined by the penal code. The legislators of the new draft bill found the existing restrictions on NGOs receiving funds insufficient, and thus stipulated the establishment of a ‘coordinating committee,’ prohibiting NGOs from receiving or sending funds from, or to, other countries without prior to notifying the committee. This committee has the right to reject any project, which requires foreign funds within 60 days of notification.
More importantly, however, the composition of the coordinating committee, as referred to in the draft bill, is indicative of the role it is supposed to perform. The members of the committee include a representative from the Ministry of Interior and another from the National Security Agency. Both security bodies have waged — and are still waging — campaigns to discredit Egyptian NGOs, and have already raided several NGO offices. Moreover, according the statement of the Forum of Independent Human Rights Organizations regarding the draft bill, those security bodies have extensively violated human rights without being held accountable, which is why they have always been the subject of criticism by human rights organizations. Therefore, giving them the authority to control the activity of the NGOs is unlawful, to say the least.
In addition, the security bodies themselves are not subject to any real transparency standards in regards to their activities, in terms of their financial provisions, or the mechanisms of internal accountability. This contradicts the draft law that demands NGOs publish their finances on their social media pages. Meanwhile, no one has access to the detailed accounts of these law enforcement entities, which are responsible for monitoring activities of NGOs, and are themselves unaccounted for and not subject to the law.
Those in power may think that despotic legislation can exempt them from being held accountable for the flagrant violations of Egyptians’ rights and freedoms, silencing anyone who dares to reveal their abuses. But their approach disregards an important point: even if the government succeeds in encircling NGOs, which defend the victims of human rights violations, how will it handle the victims themselves?