We're Not Building a 'Police State'

Why Egypt’s draft NGO law is transparent, fair, and a big step forward for democracy.

Egypt is transitioning to democracy, and a well-functioning civil society is a key part of that process. To that end, President Mohamed Morsy's office has put forward a draft law that would regulate NGOs operating in Egypt. Some have argued that the legislation, which is currently being considered by the Shura Council, would repress civil society -- but a fair reading of the law shows that this is entirely baseless.

"The Muslim Brotherhood lays the foundations for a new police state by exceeding the Mubarak regime's mechanisms to suppress civil society," read the headline of a statement by the Cairo Institute for Human Rights, signed by 40 NGOs, enumerating their concerns with the draft NGO law. The presidency has carefully reviewed these concerns -- as well as similar issues raised by international NGOs such as Amnesty International and Human Rights Watch -- and found that most are either based on speculations or misinterpretation of the law, or have already been duly addressed in the final draft.

First, the statement claims that "[t]he bill seeks to subject civic entities to strict executive oversight under what is termed the "Coordinating Committee," which is given broad powers to adjudicate in all matters related to foreign funding for national organizations and the licensing and operation of foreign NGOs in Egypt." This is completely baseless for a number of reasons: The main objective of forming the coordinating committee is to consolidate all government entities with which international NGOs deal into one, so as to facilitate registration and limit any bureaucratic complications.

The law includes guarantees for transparency and doesn't grant the committee any control over organizations. The committee must provide a legally accepted reason for any decision regarding registration or funding requested by the NGOs, thus limiting its ability to interfere or impose restrictions on the NGOs for political or authoritarian motives. Moreover, the committee has no authority to stop illegal activities or funding or to dissolve an NGO without a final court order.

The draft legislation also created a clear reference point with regards to denying registration or objecting to activities or funding -- the Egyptian Constitution and our country's legal framework. Once foreign-funded NGOs are registered or obtain the general approval to receive funds they operate freely and receive funding, provided they notify the coordination committee without requiring or waiting for any other approval.

The NGOs' statement admits the draft does not include a provision stipulating that Egypt's security agencies will be present in the coordination committee. However, it assumes that the security agencies will nevertheless be part of the committee, and would therefore arbitrarily bar organizations from receiving foreign funding. In fact, the presidency has removed the provision calling for security agencies' involvement from its draft precisely to avoid this possibility.

The main philosophy behind the law is to help transform Egypt from a police state into a civil, democratic state governed by the rule of law. With regards to the composition of the coordination committee, the draft allows the relevant minister to appoint half its members, while the other half would be chosen by an elected body (the National Federation for Civil Society). It would be normal for the competent minister to consult with other ministries as part of inter-agency coordination, which also exists in other democracies. But regardless of the composition of the committee, the law limits the control of any of its members over the NGOs by adding a condition that the decisions of the committee must be based on legally accepted reasons. The activities that are considered "illegal" are clearly listed in the law -- the creation of military or paramilitary formations, targeting profit, and partisan political activities.

Another concern raised by the 40 Egyptian NGOs was that the bill "limits the right of associations to develop the financial resources necessary to pursue their activities by making their right to collect donations conditional upon completion of a process of notification and the subsequent approval of the administrative authorities." This interpretation is simply inaccurate: The bill permits NGOs to freely collect donations from Egyptians inside and outside Egypt, and from foreign residents in Egypt. It requires only "notification" in case of foreign donations.

Similarly, the statement complains that the draft law "would require organizations to notify the Coordinating Committee and to receive its official approval before receiving foreign funding." It is as if the statement's authors are seemingly calling for the unrestricted flow of foreign funding into Egypt, without any tracking by the government. This contradicts international norms of regulating foreign funding, which primarily aims to avoid the possibility of laundering terrorist money. As the Venice Commission, an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law, stated in its assessment of the draft, "this is a necessary, reasonable, and acceptable justification for the stricter control of funding from foreign donators."

Furthermore, the law provides a number of very liberal provisions to simplify the process by which civil society organizations can work effectively in Egypt. Specifically, in order to begin work as a not-for-profit organization, and hence to benefit from various tax and other financial benefits, organizations simply have to notify the relevant administrative body. If there is no objection within 30 days, the organization is considered duly registered. Similarly, the process for receiving funding and donations has been significantly simplified.

The presidency's draft follows a very simple and important principle: The executive branch should not be the arbiter of any alleged violations of the law by civil society organizations. The draft legislation is very clear that any concerns about civil society organizations' compliance with the law must be decided by the courts. The executive simply does not have the power to ban organizations or stop their work without due process. Finally, the coordinating committee itself, which includes members selected from representatives of civil society organizations, also represents an effort to achieve a measure of transparency and accountability to stakeholders.

It is unfortunate that objections are being raised to the draft NGO law without accurate references to the actual text. We urge everyone to read the draft legislation, which is available online, and form their own opinions.

Nevertheless, we appreciate the points raised by our friends around the world. We would like to reiterate that this is an Egyptian law that must be developed for Egypt's needs and will be vetted by Egypt's parliament. Each country meets is own needs differently. Over the last decade, we have seen many democracies struggle with how to maintain a vibrant NGO sector while ensuring that charitable giving is directed toward its intended objectives. In some democracies, the need to protect public safety resulted in opaque procedures, secret evidence, intimidation tactics, and what has been described as a "climate of fear." This law attempts to achieve the balance for Egypt without invoking any such draconian measures.

That some have chosen to be critical of the law is perfectly fine, but we need to appreciate the complexity of the situation. Egypt is going through a transition from 60 years of autocracy to a nascent democracy. President Morsy is acutely aware of the importance of civil society organizations in fostering a healthy political transition, and this law is one part of reshaping the legal and cultural environment to better support our emerging democracy.

Sean Gallup/Getty Images


Uncivil Society

Why Egypt's new law regulating NGOs is still criminal.

On June 4, an Egyptian criminal court sentenced 43 people to prison on charges of membership in illegal organizations. It was a familiar scenario for anyone who worked on human rights under Hosni Mubarak, when activists regularly criticized the roundup of hundreds of Muslim Brotherhood members and their prosecution on the same charges. This time, however, the defendants were Egyptian and international staff of U.S. and German nongovernmental organizations. International law is clear on the issue: Membership in an unregistered organization should not in and of itself amount to a crime.

Yet the Egyptian presidency's latest draft of the new law governing NGOs would not prevent a repeat of the June 4 verdict. The presidency claims that the new draft law has no criminal penalties, yet this is misleading. The draft clearly states that the law's penalties would not supersede the harsher penalties in the penal code. By this means, the draft law incorporates the vague language of the penal code criminalizing "membership in an illegal organization," allowing staff of these organizations to be charged with a crime for simply going into the office.

The presidency's May 29 draft is better than an earlier horrific draft from the Justice Ministry, and the draft has improved somewhat over the past two months. The draft, however, is still deeply repressive and violates Egypt's international obligations. This is a technical, not a political, assessment. The key test of an association law is whether organizations will be able to operate freely, without interference from the executive, and independently, with access to funding to enable their survival.

I have followed the passage of this NGO law for two years. Initially, I was cautiously optimistic because the first draft produced in April 2012 by the Freedom and Justice Party, the Muslim Brotherhood's political party, was relatively liberal. By this February, however, when the party submitted its new draft eight months into President Mohamed Morsy's rule, it became clear that the party had changed course. The new draft incorporated some of the worst language on foreign organizations and foreign funding taken from the draft prepared by the Social Affairs Ministry, long a front for the security agencies that monitor NGOs.

The presidency's draft would reinforce and formalize state control over NGOs by empowering the authorities to deny them access to both domestic and international funding. Last week, when I spoke at a side event at the U.N. Human Rights Council in Geneva, the U.N. special rapporteur on freedom of association stressed that the right of association goes hand in hand with, and depends on, the right to access funding. The presidency's draft law would give the Egyptian government unlimited power to object to any group's domestic fundraising or its right to obtain foreign funds.

The draft law would also give the authorities complete discretion to object to any of the activities of Egyptian and international organizations. If the organization did not comply, the government could take it to court.

Contrary to what a representative of the Egyptian presidency has claimed, the authorities' discretion to object is unlimited in both these provisions. The only requirement is that the objection must be "justified." Under Mubarak, the government's security agencies would often refuse human rights organizations' requests to seek foreign funding to carry out projects on torture, citing unexplained "security reasons" -- and this was deemed sufficient.

The draft law contains no safeguards if the government should decide to cripple an organization working, say, on projects related to early marriage or the rights of religious minorities, by consistently denying it access to funding. Egypt's own human rights community will be particularly vulnerable. Foreign funding has always been its lifeline because, under Mubarak, Egyptian businessmen didn't dare fund a human rights organization.

In contrast, when it comes to the registration of Egyptian groups, the draft law is an improvement on the existing law. It states that the government may only object on two grounds: if the group is involved in military activities, or if its activities are for profit. Had the presidency wished to ensure transparency and protect civil society groups from arbitrary interference, it could have similarly limited to these specific grounds the authorities' power to object to organizations' activities.

The presidency's draft reflects deep-seated official paranoia about the role of international organizations in Egypt. That paranoia also surfaced during the 2011 uprising, when the military raided a key human rights organization, the Hisham Mubarak Law Center, and detained 27 human rights defenders. Later that year, the authorities carried out the raids and investigations of the NGOs that ended in the 43 sentences handed down on June 4. By treating NGO staff as potential foreign agents, this draft law marks the latest example of this unfortunate trend.

International law does not allow governments to discriminate between domestic and international NGOs that are operating legally in their respective countries. The draft law, however, would establish a special committee, whose members would probably include Egypt's security agencies, to "monitor" foreign organizations. The committee could arbitrarily limit international groups' activities on vague grounds such as "national sovereignty" -- an accusation frequently used against groups that criticize rights abuses in Egypt.

The draft even insists that any Egyptian organization wishing to cooperate with an international organization must notify the authorities beforehand. It must also seek the authorities' permission before it can join an international organization or entity. Failure to do so would make the organization liable for penalties, including a court order that the group should suspend its activities or, ultimately, face dissolution.

Egypt's transition has been a messy process in which successive governments, including Morsy's, have failed to make crucial institutional reforms or address issues of accountability and social justice. Police abuses continue: Egypt has witnessed rising deaths in custody and excessive use of force in dealing with public protests, and there has been continuing impunity for police and military crimes. Criminal defamation and blasphemy prosecutions are also rising, and Egypt's parliament is in the process of drafting a repressive demonstrations law that would give the police overly broad discretion to violently disperse demonstrations.

Two years ago, Egyptians stopped being afraid of the police state that Mubarak had erected. This fact still provides the greatest hope that they will persist in demanding social justice, reform, and accountability from their government -- through their elected representatives but also collectively, through groups ranging from small neighborhood associations to high-profile human rights organizations.

A liberal NGO law is key to protecting the human rights community's ability to operate freely. It is also key to empowering development organizations of the sort that Egypt desperately needs, as the economic crisis continues to inflict grave harm on the country's poor. This is ultimately a political choice for the Egyptian president. He can still change course.