Dear Minister Ahmad Mekki,
Human Rights Watch has reviewed the February 16 final version of the draft "Law on the Protection of the Right to Peacefully Demonstrate in Public Places" approved by the cabinet and submitted to the Shura Council. The following is a legal analysis of the most problematic provisions and recommendations for revisions in light of Egypt's obligations under international human rights law.
International law binding on Egypt
Egypt is a state party to the International Covenant on Civil and Political Rights (ICCPR), which declares in its Article 21:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Egypt is also a state party to the African Charter on Human and Peoples' Rights, which states in Article 11:
Every individual shall have the right to assemble freely with others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the interest of national security, the safety, health, ethics and rights and freedoms of others.
Professor Manfred Nowak, an internationally acknowledged expert, stated in his commentary on the ICCPR:
[T]he focus of freedom of assembly is clearly on its democratic function in the process of forming, expressing and implementing political opinions. The democratic function of freedom of assembly means that States are under a stronger duty to ensure the right with positive measures than with civil rights, which are exclusively exercised for private interests. [States should] make available public thoroughfares or other areas, possibly re-route traffic, and not discriminate or act arbitrarily in denying access to public buildings for the holding of assemblies.
In October 2010, the United Nations] Human Rights Council adopted resolution 15/21, in which it stated:
[T]he rights to freedom of peaceful assembly and of association are essential components of democracy, providing individuals with invaluable opportunities to, inter alia, express their political opinions, engage in literary and artistic pursuits, and [r]ecogniz[ed] further that exercising the rights to freedom of peaceful assembly and of association free of restrictions, subject only to the limitations permitted by international law, in particular international human rights law, is indispensable to the full enjoyment of these rights, particularly where individuals may espouse minority or dissenting religious or political beliefs.
Article 2 of the draft law states that"the right to peaceful assembly is guaranteed and citizens may call for demonstrations, organize them and join them as stipulated by the provisions and regulations of this law."
While this provision clearly states that the right to peaceful assembly is guaranteed, it would be significantly enhanced if it also included an explicit reference to Egypt's constitution and to international treaties that Egypt has ratified that set out and protect the same right under international law. We recommend adding: "The right to peaceful assembly is guaranteed by the constitution and international treaties to which Egypt is party." In addition, while the explanatory note attached to the draft law refers to Articles 45 and 50 of the Egyptian constitution and Article 21 of the ICCPR, this should be spelled out within the law to have operative effect.
Furthermore, Article 2 restricts the right to demonstrate to citizens, whereas under international law the right to freedom of assembly is provided to everyone. Article 2 of the ICCPR states that the rights in the convention are provided to everyone within the territory of a country without discrimination on the grounds of national or social origin. As it stands, the law would prohibit, for example, Syrians in Egypt from holding a protest, and would give the police the right to forcibly disperse them even if the protest was peaceful and did not disrupt public order. In the same way that Egyptians in democratic countries abroad have had the right to demonstrate in favor of the January 2011 uprising, the law should extend the right to non-citizens to demonstrate in Egypt.
Article 4 states that "the exercise of the right to peaceful assembly must not breach security or public order, or impede the interests of citizens, or impede blocking roads or transportation, or block traffic, or attack individuals, property, or freedom to work, or any serious threat of any of the above."
International law recognizes that the right to peaceful assembly can be limited, but as Human Rights Council resolution 15/21 stated such restrictions must be "prescribed by law and... necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others."
The reference to "the interests of citizens" is conspicuously overly broad and open to wide interpretation. As such it could be used by a future government to restrict arbitrarily the right to peaceful assembly on pain of criminal prosecution. We recommend deleting this phrase.
We also recommend deleting the list of prohibited acts, making reference instead only to wording derived directly from the standards under international law, i.e. as set out in Resolution 15/21, which would encompass the acts currently specified in the draft.
It is appropriate to include "public order" but redundant to list crimes such as "attacks on individuals or their properties" in this context because such acts of violence are already clearly criminalized under in the penal code.
We also recommend adding new wording to make explicit that: "Any restrictions on demonstrations need to be clearly and narrowly identified, necessary and proportionate."
Article 14 empowers uniformed police to disperse a demonstration if it "does not comply with the measures agreed between the police and the organizers, or if demonstrators commit any action that contravenes Article 4." It also states that security officials may call upon a judge from the relevant geographic circuit to delegate someone to confirm the state of the demonstration before its dispersal.
Article 4 is framed too broadly to serve as grounds for requiring the dispersal of a demonstration, notably in that its reference to "impeding the interests of citizens" is so imprecise as to be capable of wide interpretation and, consequently, abuse.
In addition, the provision is too broad and does not recognize the principle of proportionality, i.e. that serious breaches of the law would be needed to justify dispersing an entire demonstration. For example, it appears that this provision could be interpreted to allow the police to use the commission of a crime by one demonstrator as sufficient grounds to forcibly disperse a protest. This would be an unnecessary measure since the police already possess powers of arrest under the penal code and code of criminal procedure that could be used against the individual responsible for criminal activity.
In the 2004 case of Ziliberberg v. Moldova, the European Court of Human Rights found that "an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behavior."
The provision relating to the possible presence of a judicial official to consider whether a demonstration should be dispersed is a good and innovative one but it should be made a requirement, if the Justice Ministry considers it feasible in practice, not left as an option for the police to utilize at their own discretion.
Article 5 states that a "written notification must be sent to the police station in the relevant district where the demonstration is to be held, at least three days in advance."
The government has the right to regulate the use of public space for demonstrations by requiring reasonable advance notification. However, the provision should also include a procedure for exceptions in the case of urgent and spontaneous assembly or if the number of demonstrators under the circumstances is unlikely to impede traffic or public order.
For example, when a US-led coalition of military forces attacked Iraq in March 2003, many Egyptians gathered spontaneously in Tahrir square to voice their protest. This was a case in which it would have been impossible to meet the three-day notification requirement and it would be unreasonable to empower the police to disperse such a protest. It makes good sense to include provision in the law for such exceptional circumstances, recognizing that the authorities retain powers to set time limits for such demonstrations.
The UN Special Rapporteur on the rights to freedom of peaceful assemblyand of association stated in his May 2012 report that "a notification should be subject to a proportionality assessment, not unduly bureaucratic and be required a maximum of, for example, 48 hours prior to the day the assembly is planned to take place."
Article 8 states that the Interior Ministry must apply to a judge to ban a demonstration in the case of infractions set out in Article 4 or failure to reach agreement with the demonstration organizers and that "the judge will issue a reasoned decision as soon as possible."
Applying to a judge for permission to ban a demonstration is a good safeguard against arbitrary decisions on the part of security officials, but banning a demonstration should be justifiable only on grounds of extreme necessity. In addition, the wording of Article 4 is overly broad insofar as it refers, for example, to "the interests of citizens."
Article 8 is also deficient in that does not stipulate a time frame within which the judge must give his decision, stating only that it should be "as soon as possible." Nor does it set out a process to appeal the judge's decision or set a timetable for an appeal. We recommend revising the wording of Article 8 to stipulate that the judge must issue a decision within 24 hours and that any decision is subject to an appeal lodged within 24 hours. That would allow for processing any objection by the government within the 3-day notification period. In the interest of promoting the right to assembly, a judge's failure to issue a decision with the 24-hour period or a ruling on an appeal within 24 hours would benefit those seeking to assemble.
Article 9 bans demonstrations within 200 meters of "presidential offices, parliamentary buildings, the cabinet, ministries and governorate buildings, diplomatic missions, courts and prosecution offices, security directorates, prisons and critical facilities." Local governors will issue a decree determining this zone which can be appealed before administrative courts within 30 days.
The list of buildings set out in this provision, along with the 200-meter-radius requirement, and the stipulation that the government may add any other buildings, is not consistent with international law because it sets overly broad limitations on the right to peaceful assembly. These restrictions are neither narrowly construed nor proportionate. While in some circumstances banning a demonstration closer than 200 meters of a particular building might be appropriate, such as protests near a sensitive military building, it is unlawful for governments to impose blanket bans of the type envisaged under Article 9 to prevent public gatherings or demonstrations outside such a wide range of government and public buildings.
Governments may take measures to protect the security of public buildings and those who work in or use them and to ensure that proper access is maintained to hospitals and places of worship. However, the notification procedures set out in Articles 5-8 of the draft law should be sufficient to facilitate such measures and will allow the authorities to require demonstrators to alter their route if there are clear, specific and proportionate grounds to do so. The procedure set out in Article 9 would go much further, allowing the government to apply to a judge to prohibit the entire demonstration if its proposed route might present problems.
The UN Human Rights Committee, which interprets the ICCPR, has written that "in adopting laws providing for restrictions ... States should always be guided by the principle that the restrictions must not impair the essence of the right ... the relation between right and restriction, between norm and exception, must not be reversed".
The UN Special Rapporteur on the rights to freedom of peaceful assembly and association said in his May 2012 report that restrictions must be facilitated within "sight and sound" of the demonstration's object and target audience, and "organizers of peaceful assemblies should not be coerced to follow the authorities' suggestions if these would undermine the essence of their right to freedom of peaceful assembly." In this connection, he warns against the practice of allowing a demonstration to take place, but only in the outskirts of the city or in a specific square, where its impact will be muted.
We recommend deleting Article 9 on the grounds that the relevant concerns are already adequately covered by the requirements of agreeing to a route in advance. A stipulation to ensure that access to government buildings will be maintained can be added to the earlier provisions.
Article 10 prohibits building stages, setting up stages with speakers, or pitching tents for a sit-in within the zones specified in Article 9.
For the same reasons mentioned with reference to Article 9, we believe this provision is superfluous since it can be regulated as necessary elsewhere in the law.
Article 13 prohibits "attacks on individuals or property or endangering them; blocking roads, squares, railways or waterways, or erecting barriers to halt traffic;" breaching the zone specified [in Article 9] carrying weapons and "wearing masks or covering the face."
Article 17 provides for imprisonment of at least one week and/or a fine between 20,000-50,000 EGP for any violation of Article 13 and states that this is without prejudice to stronger penalties in any other law.
The actions listed in these two articles are already prohibited in the penal code, so their inclusion here is superfluous. We recommend deleting them and replacing them with a clear statement that crimes committed by people participating in demonstrations will be punished under the penal code. This should remind demonstrators that they will be held liable under the law for any violence and other crimes, while limiting criminal liability to individuals directly responsible for committing crimes rather than collectively punishing others who participated in the demonstration.
Germany and other countries have laws that prohibit demonstrators from "wearing masks or covering the face" but in all cases any such measure imposed on grounds of promoting public order must be both necessary and non-discriminatory. In Egypt, where many women wear the niqab lawfully in public, it is not legitimate for the government to impose such a prohibition as this would inevitably have a discriminatory impact. It would prevent many women from exercising their right to participate in peaceful demonstrations and also contravene their rights to freedom of opinion, religion and expression. Discriminating against women who wear the niqab outweighs the public order limitation in this case, and such a restriction should not be imposed.
Article 15 sets out the steps the police "should take to the extent possible" to disperse a demonstration, starting with verbal warning, then water cannon, then tear gas, and finally batons.
The phrase "should take to the extent possible" provides the police with an excessive degree of license in complying with the steps set out in this provision. It should be deleted and replaced with the words "must take in accordance with international standards" so that the steps meet international legal standards, and do not just reflect the police's own perspectives. The article should also state explicitly that all measures those enforcing the law take must comply with the requirements of necessity and proportionality set out in the relevant international standards.
These standards are stated in the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Code of Conduct for Law Enforcement Officials. The UN Basic Principles on the Use of Force and Firearms provide that law enforcement officials "shall, as far as possible, apply non-violent means before resorting to the use of force" and may use force "only if other means remain ineffective." When the use of force is unavoidable, law enforcement officials must "exercise restraint in such use and act in proportion to the seriousness of the offense.
Article 16 states that the police may not use more force than indicated in the previous provision, except as stipulated in the penal code and police law or on orders from a judge.
This provision is inconsistent with international standards since it could be interpreted to allow the use of lethal force such as live gunfire without the very narrow limitation provided under international law. The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials clearly state that the intentional lethal use of firearms may only occur where "strictly unavoidable in order to protect life." The protection of property is a far lower standard than the protection of life. The police should use non-lethal force in a proportionate and necessary manner as a first recourse and should only resort to lethal force if there is an imminent threat to their lives or the lives of others.
The reference to the police law is particularly problematic since it provides overly broad powers to police to use firearms that go beyond what international law permits. Article 102 of the 1971 Police Law No. 109 provides that police officer may use firearms:
to disperse crowds or demonstrations of at least five people if this threatens public security after issuing a warning to demonstrators to disperse. The order to use firearms shall be issued by a commander who must be obeyed. In all three circumstances, the use of the firearm must be the only means of achieving the stated aims. The policeman must start by warning that he is about to fire and may then resort to the use of the firearm. The minister of interior shall determine the regulations that shall be followed and how to issue the warning and use the firearm.
Thank you for reviewing these concerns and we hope that the proposed law will be amended to take them into consideration.
Sarah Leah Whitson
Middle East and North Africa Division
Human Rights Watch