Supreme Constitutional Court Finds

On 11 February 2019, the Official Gazette published a decision by the Supreme Constitutional Court (“SCC”) on a case brought against the Minister of Social Solidarity (the “Minister”) and the Cairo Governor.[1] The SCC Decision declares the unconstitutionality of Article 42 of the Old NGO Law No. 84 of 2002 (“Old NGO Law”) for conferring on the Minister the power to dissolve NGOs. It is worth noting that the new NGO Law No. 70 of 2017 (the new Civil Society Work Law, or “New CSW Law”), which was passed after the court case was referred to the SCC, requires the Minister to obtain a court order for the dissolution rather than directly and unilaterally deciding so. Following the SCC Decision, NGOs that had been dissolved by the Minister by virtue of Article 42 of the Old NGO Law could now have a chance to rescind the dissolution decision.

Background

The New CSW Law was ratified and published in the Official Gazette on 24 May 2017, six months after having been approved by parliament in November 2016. Among other things, the New CSW Law extends its jurisdiction beyond NGOs and associations to cover all entities that engage in civil society activities, which it defines as all non-profit-seeking work targeting the development of society in one of the fields specified in the entities’ bylaws. In this sense, the Law does not only affect human rights or development organizations, but it is also applicable to business-related entities (such as businessmen’s associations and investors’ associations). The New CSW Law also expands the scope of prohibited NGO activities, harshens penalties for certain NGO violations to include up to five years imprisonment, and introduces a new body—the National Agency for Regulating Foreign NGOs. With regards to dissolving NGOs, the New CSW Law stipulates a two-tier system of dissolution. The competent authority (which is defined in the law as the Ministry of Social Solidarity (the “Ministry”)) may request the competent court to dissolve the NGO if it commits any violations from a specified list that includes non-compliance with the law, undertaking banned activities, receiving foreign funding without authorization, and violating the rules for local fundraising. While the court decides, the Ministry may issue a decision to temporarily suspend the contested activity. This diverges from the repealed Old NGO Law, wherein NGOs were dissolved through a reasoned decision from the Minister, after hearing the opinions of the General NGO Union and the concerned NGO. However, in such a case, the Old NGO Law provided for appealing the Minister’s decision in an administrative court.

The SCC Decision

Despite the issuance of the New CSW Law with different procedures for NGO dissolution, the SCC still considered the case at hand, which dealt with the unconstitutionality of Article 42 of the repealed Old NGO Law. One question in this respect is why the SCC would not decline to continue considering the case after the repeal of the Old NGO Law in 2017. The reason is that the effects of decisions based on the repealed Old NGO Law are still ongoing and a decision on the constitutionality of any of its articles would have an impact on the old administrative decisions that were taken on their basis. In other words, because the Association of Applied Arts Graduates, which is the subject of this case, was dissolved under the repealed Old NGO Law, a constitutional judgment on the reasons and procedures behind its dissolution would have an effect on its very existence, and the same applies to other NGOs that were dissolved in a similar manner.[2] In addition, according to the SCC Decision, Article 42 of the Old NGO Law was found unconstitutional for giving the competent authority (i.e., the Minister) the power to dissolve NGOs as this contradicts Article 75 of the current 2014 Constitution which ensures the freedom of citizens to form civil society institutions and associations on a democratic basis and prohibits authorities from dissolving these institutions and associations except through a court order. The SCC also linked different constitutional rights together in reaching its Decision – most importantly the rights to personal liberty (Article 54) freedom of speech (Article 65) and freedom of association (Article 73) – and it cited the provisions on the freedom of association in international conventions such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Conclusion

Although different news sources reported the decision in a manner that made the annulment of such power seem novel, this move had already been reflected in the New CSW Law that was passed almost two years ago and which remains contested to this day (with its Executive Regulations still not passed and with talks of possible amendments to the Law itself).[3] The unconstitutionality of Article 42 of the repealed Old NGO Law will most probably not have substantial effects on the New CSW Law since the latter has different procedures altogether for NGO dissolution that do not give the ultimate power of dissolution to the Minister. However, since decisions of unconstitutionality could have retroactive bearings—rather than only prospective ones—and are applicable to everyone (and not just to the litigants in question), other NGOs that were previously dissolved by the Minister’s decisions could potentially appeal their dissolution for its unconstitutionality.[4]   [1] Supreme Constitutional Court Decision on Case no. 84 of Judiciary Year 39, Official Gazette, Issue No. 6 (bis), 11 February 2019. [2] In that sense, there was also another lawsuit brought to the SCC by another claimant (the chairman of the board of directors of Ahl El-Kheir Islamic Association) and the SCC Decision of the unconstitutionality of Article 42 of the Old NGO Law was also passed after the New CSW Law was published, but this time for a different reason—that of conferring on the Minister the power to dismiss the NGO board of directors. [3] Middle East Monitor, “Egyptian court annuls government right to dissolve NGOs”, 3 February 2019, available through this link. [4] Law No. 48/1979 on the Supreme Constitutional Court, Official Gazette, Issue No. 36, 6 September 1979; State Council Legal Opinion No. 653, dated 8 June 2005.