Al-Ahram Weekly Online   10 -16 April 2003
Issue No. 633
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The right to march

The Administrative Court, first circuit, issued an important ruling on 4 February overturning a Cairo Security Department order rejecting the request submitted by Dr Abdel- Mohsen Hamouda, a veteran political figure, to organise a peaceful protest march to protest the [then] impending war against Iraq. The Egyptian legal community has described the ruling as historic. Below, is the text of the ruling:

In The Name Of God The Merciful And The Compassionate

In The Name Of The People

The State Council

The Administrative Court

First Circuit

In the publicly convened session held on Tuesday 4 February, 2003

presided by Councilor Farouk Ali Abdel-Qader, the Chief of the Administrative Court, and including Councilors Ahmed Mohamed El-Shazli, deputy-chair of the State Council, and Abdel-Salam Abdel-Meguid El-Nagar, deputy-chair of the State Council,

Has issued the following ruling

in the case no: 7741/75

initiated by Dr Abdel-Mohsen Hamouda

in his capacity as the court-appointed sequester of the Engineers Syndicate and the head of the Wafdist Vanguard

Versus

1- The Prime Minister (in his capacity)

2- The Minister of the Interior (in his capacity)

3- The Minister of Information (in his capacity)

4- The Chief of Cairo Security (in his capacity)

5- The Director of State Security Intelligence (in his capacity)

6- The Governor of Cairo (in his capacity)

Facts of the case

Summation: The plaintiff filed the case before the court in a written brief signed by a lawyer who deposited it with the court clerical office on 30 December 2002. He requests an injunction against an order issued by the Cairo Security Department which refused to allow the plaintiff to organise and hold a popular march on 30 December 2002. The march was to start from Sayeda Aisha Square in Khalifa, proceed to Mohamed Ali Street, Bab Al-Khalq Square, Ataba Square, 26 July St, Talaat Harb St, Tahrir Square, Qasr Al-Aini St, and the Omar Makram Mosque, where it would continue to the US Embassy. The Cairo Police Department refused to take the necessary measures by removing obstacles that would prevent the organisation and procession of the march in a fashion suited to its noble national purpose, including obstacles to the public announcement of the march. The plaintiff requests that the order and any consequences thereof be abrogated by implementing his petition and obliging the defendants to bear all court costs.

The plaintiff states that he came forth with a group of citizens, who, despite their various intellectual and political persuasions, are all opposed to the assault on Iraq led by the US and its allies. They defend the national sovereignty of the Iraqi regime and the absolute right of the Iraqi people to self-determination. The repeated assault on Iraq will end in its invasion, occupation, the squandering of the country's wealth, the elimination of its regime, and an assault on its national sovereignty. Based on the law of public assembly, the plaintiff and the aforementioned group of citizens notified the defendants in their professional capacity that they intended to organise a peaceful, orderly popular march as an expression of the overwhelming emotions felt towards their brothers, the Iraqi people, which inflame their hearts and the hearts of all Egyptians regardless of their economic, social, and political differences. They would thus be joining other non-Arab peoples, in the East and West, in their support of the wronged Iraqi people. These protests and marches have included tens, indeed hundreds of thousands of citizens, and in some European countries even reached half a million demonstrators in a single march. It is expected that on 18 February, one million Italian demonstrators will gather in Milan, Italy. Indeed, protesters have repeatedly demonstrated against the US government in the US itself.

The plaintiff adds in explanation of his case that the aim of the planned march is first and foremost to revive the noble- mindedness, valour, and altruism characteristic of the Egyptian people. These values are part of our character and lineage, a faithful adornment of the face of the Egyptian people and their deep-rooted spirit of nationalist initiative.

The plaintiff explains that he notified the proper authorities of his request and the course the march would follow, set for 30 December 2002, but he was notified on 30 December 2002, that the security authorities did not agree to the organisation of the march or the erection of any tents or pavilions in a public street in any area in Cairo.

The plaintiff deplores the order, which contravenes the constitution and the law, and he filed the aforementioned complaint with the court. The court set a session for 28 January 2003, to examine the case, during which the plaintiff's representative offered into evidence three documentary exhibits. The plaintiff's representative also offered an exhibit from the administrative authorities containing the reply of the Ministry of Interior and the defence brief, which requests that the plaintiff's case be rejected and that he be obliged to bear all court costs. In the same session, the court decided that it would rule on the case in today's session. The ruling has been issued, and the court's opinion has been deposited.

Ruling

Having reviewed the evidence and listened to arguments, and after careful deliberation:

The plaintiff requests the court to formally admit his case and requests the invalidation of the Administrative Authority's order to refuse him a permit for the purpose of organising a popular march from Sayeda Aisha Square to the Omar Makram Mosque, and ending at the US Embassy. The Administrative Authority refused to take the necessary measures by removing all obstacles that interfere with the march in a fashion suited to its noble national purpose. The plaintiff requests that the ruling issued in the case and any consequences thereof be implemented forthwith with no further notification, and the plaintiff requests that the defendants bear all court costs.

Inasmuch as the case meets all the necessary procedural and formal conditions, it is admitted.

Inasmuch as the matter is urgent, it is the decision of the court that in order to grant the injunction, two conditions must be met: the request must be based on just cause, and it must be proved that not issuing an injunction will have irreparable consequences.

Insofar as just cause is concerned,

Article 48 of the constitution stipulates:

Freedom of expression is guaranteed, and every person has the right to express his or her opinion, in oral, written, or visual form, or any other legal means of expression.

Article 54 of the constitution stipulates:

Citizens have the right to unarmed, peaceful assembly without providing prior notice, nor are police or security officials allowed to attend private meetings, public assemblies, gatherings, or processions conducted within the law.

Article 1 of Law 14/1923 confirmed the laws regarding assembly by declaring public assemblies free. Article 2 of the same law requires the organisers of public assemblies to notify the authorities of the time and place of the assembly, while it also stipulates that the laws of assembly be applied to public demonstrations.

In short, the constitution has emphasised public freedoms, giving citizens the right to hold public assemblies and processions as long as this right is practiced within the bounds of the law which regulate such assemblies, which aim to enable citizens to exercise their public rights without restraint. Whether it is an original right or an extension of the right of free expression, the right of assembly represents a window through which citizens can display their hopes and collectively express their cultural, social, and political views. There is no doubt that the freedom of citizens to hold assemblies and processions loses its value if, when such an assembly is organised, the legislator imposes legal restraints that prevent the exercise of this freedom, or if the administration refuses to allow an assembly using justifications that impinge on the right of citizens to assembly. In such a case, the administration's orders exceed the legal bounds granted to it as the upholder of security and public order in the country. This right is not incompatible with the right of citizens, and the administration must maintain a balance between the right of citizens and its own duties.

Egypt occupies the pinnacle of the Arab and Islamic worlds, not only due to its population [size] and significant geographic location, but also as a result of its ancient civilisation and inherited culture, which has made it the leading Arab country in the revolutions, wars, and victories of the Arab world, as well as in the fields of peace and Arab cooperation. Thus, it is inevitable and necessary that the Egyptian people express their opinion on a matter of crucial importance for the Arab people, joining with the official state position that rejects all aggression and any threat that touches any Arab people. This stance towards Arab issues, both old and new, has strong precedents in Arab Egypt. The only legal obligation upon those who wish to express their opinion is to maintain a civilised manner that expresses the nobility of this great people and its historical role in defending the Arab and Islamic nation. The administration is obliged to exclude from assemblies and processions anyone who seeks to disturb public security and the general peace, which would only rob the demonstration of its noble purpose. In any case, everyone should take note of the way in which the world's peoples and governments are manifesting their own cultures and their opinions about pressing global issues, whether their own countries are a party to these issues or they are merely sharing the problem of another people.

It is clear from the case files that the plaintiff presented a request to the Ministry of Interior informing them of his intention to hold a peaceful, popular march against the US aggression on Iraq, defining the time and place of the march. The ministry, however, rejected the request, pointing to heavy traffic and the need to modify security services, and the possibility that if the march proceeded, certain troublesome elements might infiltrate the march, thus impinging on its peaceful nature and the general peace. There is no doubt that these justifications -- regardless of their veracity -- do not provide sufficient reason to prohibit a citizen from exercising a constitutional right that bears so closely on his public freedoms. Indeed, the Ministry of Interior is obliged by its constitutional and legal duties to take the necessary measures to guarantee that any person seeking to incite trouble is prevented from joining citizens in the march, thus marring its nobility of purpose. The ministry should thus determine the most appropriate course for the march such that it meets the needs of public security while protecting citizens and their freedoms, hence properly maintaining the law.

As such, the plaintiff's request for an injunction is based on just cause. An expedited ruling is also justified considering the damage inflicted on the rights of citizens and their public freedoms by the Administrative Authority's rejection, which prevents the people from expressing their opinions. This court rules that its judgement be implemented, immediately and with no further notification required, in accordance with Article 148 of the code of procedures.

For these reasons, the court rules:

To formally admit the case and to issue an injunction against the order and any consequences thereof, in accordance with the reasons outlined above. The Administrative Authority is charged with bearing court costs and is ordered to implement the ruling immediately and with no further notification and to transfer the case to the State Commissioners Authority, which will examine it and establish a legal opinion.

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