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Al-Ahram Weekly 8 - 14 June 2000 Issue No. 485 
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Published in Cairo by AL-AHRAM established in 1875 |
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Al-Ahram Weekly 8 - 14 June 2000 Issue No. 485
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| Published in Cairo by AL-AHRAM established in 1875 |
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Egypt Region International Economy Opinion Culture Features Travel Living Sports Profile People Time Out Chronicles Cartoons Legal shortcomings
By Mariz TadrosThe new NGO Law is dead. Five days after implementation the Supreme Constitutional Court (SCC) has ruled it unconstitutional, making it the shortest lived law in Egyptian history.
From its conception, Law 153 proved controversial. NGOs denounced it as restrictive, claiming it would inhibit civic activity, and in the wake of its publication came hunger strikes, denunciatory conference resolutions, petitions and appeals to the president. In the end, though, it has been brought down by a legal dispute, in Tanta, between an NGO and the Ministry of Social Affairs. The case reached the Administrative Court after Law 153 had come into effect. The court, dubious about the constitutionality of some of the law's articles, referred the matter to the Supreme Constitutional Court (SCC), and the rest is now history. On Saturday the Court issued a ruling consigning Law 153 to the legal dustbin -- it was, they decided, unconstitutional.
The ruling was very much in line with recommendations made by the State Commissioners Authority, an advisory committee attached to the Supreme Constitutional Court (SCC). Their report stressed that because the law on NGOs touches on basic constitutional freedoms, ie, it is complementary to the constitution, it should first have been ratified by the Shura Council and then the People's Assembly.
"An international scandal," crowed Said Abdel-Khaleq, editor-in-chief of Al-Wafd. "Not a big problem," assured Fathi Naguib, the assistant Minister of Justice instrumental in formulating the Law 153. "Now Law 32 will be implemented instead."
There is no hiding the confusion of anti-Law 153 activists, even as they congratulate one another on their apparent success. For while non-profit civil companies that did not seek registration with the Ministry of Social Affairs (MOSA), and which consequently would have been closed down under the new law can now continue to work, NGOs who applied but have not yet received an answer from MOSA find themselves in a legal loophole. Their applications will now be judged according to the criteria laid out in Law 32, to which the applications, presumably, were not tailored. The position is more positive for organisations that had their registration accepted which, Naguib says, "will be considered legitimate."
While the government downplays the implications of the decision, Gasser Abdel-Razeq, a human rights activist, believes it is a major victory for NGOs. "We early questioned the constitutionality of the law but the government just ignored us." Now, he believes, even if the government is unprepared to sit at the same table as NGOs, the ruling has undermined it's ability to determine their fate unilaterally.
Minister of Justice Farouk Seif El-Nasr, announced last Tuesday that a special committee will be formed to revise the law before it is presented to the Shura Council and then passed to the People's Assembly.
Naguib is keen to stress that the SCC ruling against the law was based on procedural grounds, and had nothing to do with specific articles. Awad El-Morr, a former head of the Supreme Constitutional Court, argues that the reason why the SCC has yet to examine the constitutionality of specific articles is because procedural violations take precedence over any discussion of substance. "I certainly believe that the law substantially contradicts the constitution," he said, adding that Law 153 attempted to dismantle one of the basic pillars of civil society, the right to freedom of association.
The State Commissioners Authority report has already singled out articles 2, 34 and 55 as unconstitutional, while the State Council suggested two important amendments to the law which, NGOs say, were ignored by former Minister of Social Affairs Mervat Tellawi, and never disclosed to the People's Assembly.
El-Morr is not surprised that an unconstitutional law managed to pass through the People's Assembly. "Statutes passed in the People's Assembly are often in violation of the constitution. Members of the People's Assembly do not feel themselves accountable to the electorate, rather they think they are accountable to the NDP which endorses and nominates them." Laws proposed by the government, then, tend to be automatically approved by the People's Assembly.
El-Morr suggests one way out of this situation is to make MPs more accountable to their electorate,. Others suggest that laws be examined by a committee of legal experts to ensure constitutionality before being presented to the People's Assembly. SCC rulings annulling legislation already passed, they argue, inevitably lead to legislative instability.
But the powers of the judiciary, El-Morr argues, should not be limited by timetables if only because the constitutionality or otherwise of legislation only becomes apparent in practice. Contesting a law on the premise of its unconstitutionality is a basic right, he argues, guaranteed to every citizen.
Abdel-Razeq believes that the court's verdict gives activists a second chance to struggle for a better law. And it is likely to have a spill-over effect, encouraging other institutions of civil society to take to the courts when they feel their activities are governed by unnecessarily restrictive laws.
