Al-Ahram Weekly 27 April - 3 May 2000 Issue No. 479
Published in Cairo by AL-AHRAM established in 1875

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NGO law under fresh fire

By Mariz Tadros

Once again, the new NGO legislation, Law 153 of 1999, has come under fire. The objection, this time, did not come from the NGOs, many of which have opposed it from the very beginning, charging that it restricts civil activity.

The State Commissioners Authority, an advisory committee of legal experts attached to the Supreme Constitutional Court (SCC) released a report recommending that Law 153 be declared unconstitutional. Alternatively, the authority suggested that Articles 2, 34 and 55 be declared unconstitutional. The authority's recommendations are not binding on the court.

The story began when the SCC was asked by an Administrative Court in the Nile Delta town of Tanta to rule on whether the law is constitutional following a legal dispute between a local NGO, Al-Gam'iyya Al-Shar'iyya, and the Ministry of Social Affairs. Last year, before Law 153 took effect, the ministry objected to several candidates running for membership of the NGO's board. In line with the provisions of the old law, the candidates filed an appeal with the Administrative Court. Under the new law, however, any legal dispute must be referred to the Court of First Instance, not the Administrative Court. Due to the contradiction, the Administrative Court decided to refer the matter to the SCC.

The 62-page report of the State Commissioners Authority argues that the law, in its totality, as well as certain specific articles, are in violation of the constitution.

According to the report, Article 2, which gives the Court of First Instance the jurisdiction to look into disputes between NGOs and the Ministry of Social Affairs, is unconstitutional. This article is said to be in violation of Articles 68 and 172 of the constitution, which stipulate that disputes of an administrative nature, involving a public figure or body, are to be resolved by the specialised administrative courts. Consequently, the State Council, the report pointed out, is the authority that has the jurisdiction to rule on such disputes.

Moreover, the report argued, the fact that the law was not sent to the Shura Council for debate makes it unconstitutional in its entirety. Since the law is complementary to the constitution -- because it regulates the basic freedoms enshrined in the constitution -- it should have been sent to the Shura Council for debate even though it is not empowered to legislate. Further, the law imposes restrictions on the right and freedom to form associations, upheld by Article 195 of the constitution.

Fathi Naguib, counsellor to the minister of justice and a legal expert who played a prominent role in formulating the NGO legislation, pointed out that the report's recommendations are not legally binding on the SCC. He said that his personal expectations are that the court may reach different conclusions.

Minister of Social Affairs Amina El-Guindi reacted to the report by declaring that, although she respects any judicial opinion, the viewpoint of the report is of an advisory nature. She added that she does not agree with the notion that the NGO Law is complementary to the constitution, or is related to the basic freedoms guaranteed by the constitution, and, therefore, there was no need to send it to the Shura Council for debate.

On the other hand, human rights organisations and other NGOs that actively lobbied against the law were delighted at the issuance of the report. Ahmed Seif of the Hisham Mubarak Legal Centre asserted that the report's conclusions back the legal rationale behind their criticisms of the law. "It also shows that the government acted rashly by enacting the law without taking the time to thoroughly research its constitutionality," he said. Seif is confident that the Constitutional Court will heed the advice of the State Commissioners and declare the law unconstitutional.

A group of NGOs issued a statement last year condemning the law on the grounds that two important amendments suggested by the State Council were not taken into consideration by the People's Assembly. The proposed amendments affirmed the jurisdiction of administrative courts, rather than Courts of First Instance, over disputes between associations and the Ministry of Social Affairs. "The amendments proposed by the State Council are important to guarantee a fair hearing for NGOs, because judges serving with Courts of First Instance do not have an in-depth knowledge of administrative law, compared to judges serving with administrative courts," said Nasser Amin of the Arab Centre for the Independence of the Judiciary and the Legal Profession.

If the Constitutional Court rules that certain articles are unconstitutional, the government will have to propose alternative provisions. If the law is declared unconstitutional in its entirety, the government will have to come up with a new bill that will have to pass through the Shura Council and the People's Assembly.

Meanwhile, the Supreme Administrative Court has decided to delay hearing a lawsuit brought by the Egyptian Organisation for Human Rights (EOHR) against the Ministry of Social Affairs. The ministry, in 1986, had rejected a request for registration made by the organisation. The EOHR took the case to the Administrative Court, which ruled in the Ministry's favour on the basis that Law 32, which regulated NGO activities at the time, stipulated that the Minister of Social Affairs has the right to reject any request for registration by an organisation, if there is a similar organisation carrying out the same activities in the same geographical area. The Supreme Administrative Court decided to delay hearings until the SCC rules on the new law.

NGOs that do not register with the Ministry of Social Affairs by next month -- the deadline for a six-month grace period -- may face liquidation.

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