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1/6/2002
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EOHR's report about press freedom in Egypt
Journalism In Egypt: Caught Between Laws And the Government
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12-7-2006
Introduction:
Responding to the pressures on journalists, opposition, political movements and parties, NGOs, the intervention of president Mubarak with a special law amending the articles related to publishing crimes in the Penal Code, annulling imprisonment for insulting civil servants and stopping short at fines and extending its maximum limit, and as EOHR welcomes this step, which is considered a support for the freedom of press and journalists, there are still some other articles in the law in need for the President's intervention, especially articles related to insulting presidents of states, which represents an obstacle to the freedom of press and expression. On the other hand, the government ignored the demand of some parliament members presenting the bill of the Higher Journalism Council, especially that the constitution talked about journalism as an independent authority of the people, and the council has limited powers in the constitution, whereas it should be taken into consideration when it comes to evaluating all laws.
Mr. Mubarak's intervention came after the refusal procedures taken by the Journalists Syndicate, represented in the following:
- On July 1st 2006 a delegation from the Journalists Syndicate Council advised Mr. Safwat Sherif, Head of the Shoura Council and Secretary General of the National Party, about their refusal of the Syndicate to the Governmental bill, describing it as a retreat from the presidential promise for the annulment of imprisonment in publishing cases. The delegation, headed by Mr. Galal Areff, asked to tell Mr. Mubarak about the refusal of the Syndicate to the bill, because it doesn't fulfill the demands and aims included in the bill provided by the syndicate.
- On July 2nd 2006 journalists went on an open strike at their Syndicate headquarters, as a means to express their refusal to the governmental bill, because it doesn't express the needs and demands of the bill provided by the syndicate, aiming at removing obstacles standing against freedom of expression, and also adding a new penalization for insulting individuals, which wasn't originally in the Penal Code, and which will now be punished by imprisonment and fines, adding protection to corruption, and constraining journalism and its ability to criticize and reveal corruption.
- On July 9th 2006 journalists made a protest at the People's Assembly, during the discussion of the amendments on some of the Penal Code articles, regarding annulling imprisonment in publishing cases. The protesters were about 500 person, wearing black caps on their heads with sarcastic sentences like, "Down with journalism, long live corruption!". On the same day 24 newspaper and magazine were not issued, as a protest against the bill.
- While the representatives of the political movements, NGOs and some members of the People's Assembly, went to the Journalists Syndicate on July 8th 2007 in consolidation with journalists in their demands and protest against the law.
- The Syndicate's Council issued a statement alerting the government to the bad results of establishing insulting individuals which wasn't originally in the Penal Code, also establishing imprisonment and fines as penalties. The statement considered this article protecting corruption hidden by insult cases against journalists, which returns to minds law 93/1995 described by public opinion as, "Corruption Protection Law".
The latest law is the last of a series of laws and legislations restricting freedom of press in Egypt, and the problem is not limited to the law's content, but also to the spread of these provisions in many laws, as codes related to publishing cases and issuing newspapers can be found in Imprints law, Penal Code, Journalism regulation law, State documents law, Civil servants law, banning army news and military decisions, parties law, Intelligence law. This led to the increase of restrictions imposed on journalists.
These laws represent a restriction over the practice of the right to expression and free opinion, and it allowed the Egyptian government to close many newspapers, like Al Dostour and Al Sh'ab, and put many journalists in prison, accused of insult and defaming for the most part, seen by the reformers that the Egyptian emergency law allowed the misconception between such acts and the right to criticize organizations, institutions, public and official. Of course there are many examples, but latest of which was the decision of Cairo Misdemeanor Court imprisoning the Editor-en-Chief of Al Dostour Ibrahim Essa, and the journalist Sahar Zaki, along with a citizen from Warak accused of insulting the Egyptian president Husni Mubarak. The executive editor-en-chief of Sout Al Omma, Wael Al Ibrashy, was referred to the criminal court in the judges crisis, beside many other lawsuits filed against Al Fajr newspaper, headed by Adel Hamouda.
Beside the legal, administrative and security penalties that hinders the freedom of press in Egypt, the authorities added new obstacles related to the freedom of information flow, and reaching journalists, although Egyptian journalists were able, after two years of protests, to annul law no. 93/1995 imprisoning journalists who publish documents, and also civil servants who provide it to journalists. In spite of the annulment of that law, many administrative obstacles are still at work, standing in the way of journalists trying to have access to official information, hindering journalism on one hand, and leading some journalists to the 'false information" trap on the other hand, so as to put them in prison or pay fines.
EOHR's report entitled, "Journalism In Egypt: Caught Between Laws And the Government", is divided to three parts, which are:
First Part: Discuses the legislative and legal restrictions to freedom of press in Egypt.
Second Part: Contains the differences between the draft law presented by the Government to the Parliament, and the one presented by Journalists Syndicate, in addition to EOHR's comments on them.
Third Part: It has two sections, first section presents the most important cases against journalists which EOHR have been watching during the period from 2004, since the presidential promise on February 2004, until July 2006, whereas it reached 85 cases, crimes, misdemeanors and investigations at the Public Prosecution Office, seen by the Egyptian Judiciary, taking into consideration that most of these cases were because of news stories against corruption.
Methodology
The report relied in its approach on recording cases by field work done by EOHR, during the period from February 2004 (Presidential promise for annulling penalties restricting freedoms in publishing cases), until July 2006 (when the government produced its bill amending some of the Penal Code articles regarding publishing cases). The report also focused on two independent Egyptian newspapers, Al Masry Al Youm (daily) and Al Fajr (weekly) as samples to all other independent newspapers.
Part one
Legislative and legal restrictions to freedom of press in Egypt
Freedom of press is a main contributor to the freedom of expression and opinions. Egyptian Constitution emphasized the freedom of press in its 48th article, when it held that the freedom of the press, printing, publication and mass media shall be guaranteed. Censorship on newspapers is forbidden as well as notifying, suspending or cancelling them by administrative methods. In a state of emergency or in time of war a limited censorship may be imposed on the newspapers, publications and mass media in matters related to public safety or purposes of national security in accordance with the law. We can notice that article 48 came closer than article 19 of the UN Covenant on Civil and Political Rights CCPR, and the same goes concerning the provisions of chapter two of the seventh part of the Constitution entitled, "Sovereignty of the press".
Thus, we can find that the Egyptian constitution didn't go far from what was dictated by the international instruments related to human rights. We can go as far as saying that the constitutional legislative was under influence of the mentioned instruments, and this can be because of many reasons, most important of which is the Egyptian participation in the formulation of the Universal Declaration of Human Rights, and the issuance of the Egyptian constitution after the appearance of such documents.
In spite of the mentioned above, many laws restricting the freedom of press were issued, among which was law no. 96/1996 regarding the sovereignty of press, and law no. 3/1998 related to the Joint ventures, and law no. 20/1936 regarding imprints, as follows:
1. According to law no. 96/1996 the right to issue newspapers was only restricted to political parties and public legal persons, especially article 45 of the law, regarding restricting establishing newspapers by persons and owning such entities. It also imposed restrictions against newspapers issued by private legal persons, as it mentioned that those persons should own cooperatives or joint ventures, with a paid capital not less than one million L.E., if daily, and 250 thousand L.E. if weekly, and the capital shall be deposited wholly in an Egyptian bank before the issuance of the newspaper.
2. law no. 96/1996 also imposed, by means of the Higher Council of Journalism, a censorship and supervision over newspapers and journalistic institutions, regarding qualifications it was granted, like:
a. producing opinions in all projects related to press laws (article 70/1).
b. Providing needs for producing newspapers (article 70/7).
c. Allocating resources of paper to newspapers and determining the price sof newspapers and magazines, along with the determination of advertisement space in the imprint.
d. Issuing the journalism oath.
e. Follow-up and evaluation for what's published by newspapers and producing periodical reports regarding the commitment of newspapers to professional standards and the journalism oath.
On the light that the council is formed by appointing according to article 68 of law no. 96/1996, headed by the President of the Shoura Council, it can be seen that it's a formation with a governmental overwhelming presence.
3. The Ministerial Council may, according to imprints law no. 20/1936, ban any publication, issued abroad, from being sold, and to ban publishing it and selling it inside the state, (article 10). Also article 21 of the law granted the Minister of Interior the right to ban many newspapers published abroad from entering Egypt. These articles represented some kind of power granted to the administrative authorities to intervene in matters related to press and publications, and to have an excuse to intervene and ban many newspapers, claiming that it is abusing religions or raising sexual desire, while the actual motive behind banning might be imposing restrictions to freedom of expression.
This law also gave the Ministerial Council and the Minister of Interior the right to ban knowledge and seeking truth by the people, which is among the basic human rights that are not supposed to undergo negotiation, and allow the Ministerial Council to confiscate the right to information flow inside the state, and across borders, either in written, printed, technical or any other form, taking away the right of the people to know facts and evaluate events, as an essential tool for creative activity and the search for truth.
4. Newspapers can be confiscated in case of breaching articles 4, 7, 11, 12, 13, 14, 17, 19 of imprints law no. 20/1936, or in case of committing a crime mentioned in chapter 14 of part two of the Penal Code related to Crimes and Misdemeanors regarding journalism, or other crimes disturbing governmental security.
In spite of the safeguards provided by article 198 of the Penal Code, regarding how it is necessary to have a warrant for confiscation from the Prosecution Office, as the warrant shall be seen by the head of the Court of First Instance in order to produce the decision of confiscation or release of the newspaper, it hinders the decision from being seen by the objective judiciary to provide its opinion regarding the article that caused the confiscation of the newspaper, as the decision of the court of first instance regarding confiscation is final, therefore the law can confiscate the newspaper and the right of citizens in filing cases before the judiciary.
5. Emergency law no. 162/1958 restricts the freedom of expression. For instance article two of the law provided exceptional procedures against the freedom of press and expression, empowering authorities to the censorship pf newspapers, publications, periodicals and all kinds of expression and advertisement before publication, and confiscating it and closing it down, and the confiscation authority is in the hands of the Ministry of Interior. The presidential decision no. 4/1982 delegated the Minister of Interior the powers granted by clauses a and b.
6. The newspaper can be closed in two cases. If it wasn't published in three successive months of the date of the decision establishing it (article 18) of the imprints law no. 20/1936, or in the case of irregularity of publication, so the minister with the proper authority should close it down, or in the case if the editor-en-chief was accused of a press crime, and was convicted, and asked by the verdict to publish the decision of the court in his newspaper during the month following the decision, in this case he is considered as committing a crime mentioned in the last paragraph of article 198 of the penal code, allowing being fined by 100 L.E. and closing the newspaper.
Beside the laws confiscating the right to collect information, publishing it, and codifying the state monopoly of information, among which is lawn o. 121/1975 regarding banning using or publishing official documents, law no. 35/1960 regarding statistical accounts of population, law no. 313/1956 amended by law 14/1967 banning the publication of any news regarding the armed forces, law no. 47/1978 regarding civil servants, Intelligence law no. 100/1971, beside penal code no. 57/1937 and its amendments.
Part two
Governmental and Journalists Syndicate Bills: Comparative Approach
On the 24th of February 2004, during the fourth conference for journalists, journalists were granted a promise by president Mubarak for the annulment of the freedom confiscating penalties in cases of publishing. Mr. Mubarak reconfirmed his promise in his election program in September 2005. Therefore, the president asked the government on the opening of the current parliamentary cycle to provide a bill to the People's Assembly, amending the Penal Code provisions in a manner consistent with the presidential promise. Something the journalists and human rights activists considered an important step towards the support and safeguarding of human rights in general, and freedom of expression and opinions in particular.
On the wake of the bill provided by the Journalists Syndicate regarding the annulment of imprisonment in publications crimes, amending Penal Code issued on law 58/1937, law no. 20/1936 regarding imprints, and law no. 96/1996 regarding regulation of the press, on the following manner:
1- Annulling articles 80-d, 86 bis third paragraph, 98-a fourth paragraph, 98-b bis, 98-e 102, 102 bis, 124-a, third paragraph, 172, 174, 176, 181, 184, 185, 186, 187, 188, 189, 199 and 200 of the penal code.
2- Annulling freedom confiscating penalties in cases of publishing, and stopping short at fines, with the duplication of minimum and maximum limits of the fine in the Penal Code, or in any other law related to these crimes, with a maximum limit not more than 10 thousand L.E.
3- Annulling punishments confiscating freedom mentioned in articles 26, 27, 29, 30 and 31 of Law no. 20/1936 regarding imprints, and to stop short at the fine determined by these Articles.
4- Amending article 171 of Penal Code 58/1937, so as the fine decided by article 2 of Penal Code in case of committing a crime or misdemeanor because of encouraging to commit crimes of article 171 of the law, while if the encouragement resulted in trying to commit a crime, no punishment should be inflicted.
5- Whoever challenges the validity of a news story or an event published in a newspaper or any media channel mentioned in article 171 of Penal Code, has to provide evidence for his challenge regarding the event, and that the journalist knew that he lied in the story he published, and its not a crime if the publishing was in good cause on the part of the journalist, and after taking proper caution according to the codes of practice.
6- Amending articles 302 and 303 of the seventh part of the Penal Code no. 58/1937 as follows: Article 302: Anybody accusing others by any of the means mentioned in Article 171 of this law, by accusations if true it necessitates punishment, or gets him disrespect by his fellow citizens, shall be considered a defamer.
However, challenging the good conduct of affairs of a civil servant or a person assigned to a public service is not considered under the title of the previous paragraph, if it happens in good cause, and was in regard to the job assigned or the public service, if the accuser didn't prove that the defamer deliberately published incorrect information, or was due to not giving enough care to the validity of what he publishes.
Article 303: Defaming is punished by a fine not less than 2 thousand L.E. and not more than 5 thousand L.E., if the defaming is against a civil servant or someone assigned to a public service, because of his job, assignment or public service, the fine is not less than 5 thousand L.E. and not more than 10 thousand L.E.
7- Adding article 44 bis to law no. 96/1996 regulating journalism, as follows: "The court of appeal shall establish a board formed of three of its judges, chosen by their annual congress, and presidency over the board is granted to the oldest member of them. The board shall have a technical office constituting of a sufficient number of judges, presidents of courts of first instance, assigned by a decision issued from the Higher Judiciary Council. The board has the jurisdiction, limited to it, to investigate in crimes, upon request, done by newspapers, and the board has the right to assign one of its members or assigned personnel to investigate. The board may investigate, along with whomever it assigns, in crimes according to jurisdictions and rules granted by the law, and the judge shall rule notwithstanding the provisions of this law, and only the board has the right to file a case in such circumstances".
8- Article 44 (a) bis: Exempted from the provisions of criminal procedures law, and military rules law no. 25/1966, the courts of first instance has the jurisdiction (misdemeanors in appeal division) to decide in misdemeanors done by newspapers, and the appeal to these verdicts is exceptional, in front of the criminal courts with proper jurisdiction, to which the court of first instance is related
Journalists and activists waited for the amendments and the bill of the government, for two years, until the government presented its bill to the Shoura Council on July 5th 2006, as follows:
Article One:
Annulling articles 98-a bis, fourth paragraph, 124-a third paragraph, 178 bis (second), last paragraph, 195, 199 and 200 of the penal code.
Article Two
Imprisonment in crimes mentioned in articles 182, 185, 302 and 306 of the Penal Code is annulled, with the increase in minimum and maximum limits of fines in such crimes.
Article Three
Articles 176, 178 bis (second, first paragraph), 181 and 302 Penal code, shall be replaced by:
Article 176:
Anybody encourages by the means mentioned above discrimination against a certain sect of the people because of race, origin, language, religion or faith, shall be punished by imprisonment, if such an act results in disturbing public peace.
Article 178 bis (second, first paragraph)
Anybody who makes or acquires photos, for trade, distribution, sticking or display, that might harm the state, for mentioning information challenging the truth or a false description, shall be penalized by a fine not less than 10 thousand L.E. and not more than 30 thousand L.E.
Article 181:
Anybody who insults, by any of the means mentioned above, the head of a foreign state, shall be punished by imprisonment and a fine not less than 10 thousand L.E. and not more than 20 thousand L.E.
Article 302, second paragraph
However, challenging the good conduct of affairs of a civil servant or a person assigned to a public service is not considered under the title of the previous paragraph, if it happens in good cause, and was in regard to the job assigned or the public service, on condition that the defendant provide a prove for each act done. The investigation authority or the court may decide to ask administrative bodies to provide documents supporting what the defendant did.
Article 171 and 178
Replace the word "encouraged" by the word "tempt" wherever occurring in article 171 of the same law, and the sentence, "if harming the social decorum" to, "if contradictory to decorum mentioned in article 178".
Article Four
The following sentences are to be dismissed from the Penal Code:
"Or with bad intentions" mentioned in article 80-d.
"or the liking" in third paragraph of article 86 bis.
"or the liking" and "or social peace" mentioned in article 98-e.
"or a crime disturbing the governmental security" in article 172.
"hate or disrespect" in first paragraph of article 174, also "or with any illegal means" in paragraph 2 of the same article.
"or one of the affairs considered a crime or misdemeanor according to provisions of article 177", also "or in lawsuits related to crimes mentioned in this chapter or chapter seven of the third book of the law" in first paragraph of article 189
Article Five
Add two articles to Penal Code no. 200 bis and 200 (a) bis, as follows:
Article 200 bis
Anybody who issues a newspaper, imprint or any other published means breaching provisions of the law, shall be penalized by imprisonment not less than 6 months and with a fine not less than 10 thousand L.E., and not more than 30 thousand L.E., or by any of the mentioned above means of punishment, beside confiscating the published issues involved in the case.
Article 200 (a) bis
The legal person is responsible with the convicted working for it, to fulfill the punishments, financial and remedial, concerning the crimes committed by the legal person, as a newspaper or any other publishing means.
The editor-en-chief or whoever is assigned by him as the supervisor of publishing regarding any of the crimes mentioned in the previous paragraph, shall be fined with not less than 5 thousand L.E., and not more than 20 thousand L.E., if publishing is proved by his knowledge or due to a shortage in supervision on his part.
EOHR's comment on the Governmental bill:
For starters, the governmental bill ignored the demands of journalists in the bill provided by their syndicate, and the demands called upon by the NGOs, which was considered by many as ducking the presidential promise, as the bill of the government was limited to amending the penal codes law only, and not imprints law or press law, also the bill increased the intensity of some penalties, as follows:
- The bill included some articles that doubled the fines against journalists.
- The Egyptian legislator is still using words with many meanings like, "public peace, and Social decorum", which can be understood in many contexts.
- The governmental bill annulled some provisions and also the freedom confiscating penalties in some crimes, but these articles and penalties annulled does not rise to the expectations of activists, because the articles annulled are already not used, and the penalties which were annulled were replaced by fines and imprisonment by other articles like:
- The bill annulled article 98-a which is the article penalizing the opposition of the principles of the socialist system, which is a system annulled because of the economic reformation, from socialist to free market economy.
- Also article 124-a(3) was annulled, which is the article regarding the penalization of publishing correct news, while article 178 bis, which the governmental bill demands its annulment penalizes the editor-en-chiefs for their responsibility for publishing stories with nude pictures and the likes in their newspapers.
- While article 195 was ruled that its first paragraph is unconstitutional, which holds the editor-en-chief responsible for what is published in his newspaper, and the annulment came without a clear meaning, especially after the addition of article 200 bis, in the same bill, to replace article 195, the replacement carrying between its lines the responsibility of the editor-en-chief, which was ruled unconstitutional, and article 200 bis came to crawl behind the back of the verdict, as we will show later.
- Articles that were amended by annulling imprisonment and duplicating minimum and maximum limits in fines, came as follows: article 182 that used to rule imprisonment for not more than a year, for whomever insults the president of a foreign state, for matters related to his work. It's a provision that carries inside it reasons for hindering its execution. Therefore, it's only natural that the provision is not possibly executable but in political cases.
- Articles 185, 303 and 306 are not important anymore. As these articles became useless after the amendment on article 308, or 303, after the latest governmental amendment ruling imprisonment and fining if the journalist insulted the victim regarding his morality or family.
- Imprisonment is still applied according to article 176 in case of encouraging discrimination in case it results in disturbing the public peace. In this regard, public peace is not defined or has an exact meaning.
- Article 178 bis (first paragraph) annulled imprisonment in case of acquiring photos, for trade, distribution, sticking or display resulting in harming the state. However, the fine inflicted according to this article is exaggerating and might reach 30 thousand L.E.
- We also find that imprisonment is still applied according to articles 171, 178, 80-d, 98-b bis, 98-e, beside that the bill ignored the provisions inflicting imprisonment in cases of publishing like article 179 regarding insulting the head of state, and article 102 from which the sentence "displaying bad publicity" and other articles which the journalists syndicate asked for their amendment.
- The bill also provided two new articles, which are:
- Article 200 bis: It made imprisonment mandatory in case of publishing a newspaper or other imprint in breach to the provisions of the law, beside an exaggerating fine that can reach 30 thousand L.E.
- Article 200 bis (a) Confirming the responsibility of the legal person with the convicted working for it. It also punishes the editor-en-chief or the person assigned to supervise the publishing in case of committing the crime mentioned in the previous paragraph, if publishing was proven to be done by him or with his knowledge, because in this case he misuses his role of supervision. The article is not consistent with the decision of the Constitutional Court regarding the unconstitutionality of article 195 of the Penal Code, that ruled the hypothetical responsibility of the editor-en-chief, as the article made the responsibility of the editor-en-chief valid in all circumstances and cases, which means that his responsibility is hypothetical, which makes article 195 unconstitutional.
- Article 303: Article 303 is one of the most debatable articles during preparation and discussion. As with the start of the governmental bill, came article 308 for the imprisonment of journalists if they insult the honesty of individuals in relation to financial cases. The article witnessed debates and the government had to provide another article under the number 303 instead of mandatory imprisonment in 308 that was previously included in the governmental bill, to make imprisonment optional by the judge, and the fine with double rates whenever the journalist insults public figures in cases related to financial honesty, and it was as follows, "Defaming is punished by a fine not less than 10 thousand L.E. and not more than 20 thousand L.E., if the defaming is against a civil servant or someone assigned to a public service, because of his job, assignment or public service, the fine is not less than 15 thousand L.E. and not more than 30 thousand L.E" and if the insult or defaming was related to questioning the honesty of the person in relation to financial matters, the imprisonment shall not be less than two years and the fine not less than 15 thousand L.E. and not more than 30 thousand L.E.
On the light of the objections of journalists and activists in the political and societal arenas, President Mubarak interfered and annulled the imprisonment penalty in Article 303, and stopped the penalty at double fining, so as to make the Article, "Defaming is punished by a fine not less than 5 thousand L.E. and not more than 15 thousand L.E., if the defaming is against a civil servant or someone assigned to a public service, because of his job, assignment or public service, the fine is not less than 10 thousand L.E. and not more than 20 thousand L.E"
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