Freedom of expression project

Law no. 93/1995

A law to end the freedom of the press

A report published in Cairo by CHRLA, the Center for Human Rights Legal Aid, June 1, 1995

On May 20, 1995, the General Secretariat of the Council of Ministers presented to Dr. Fathi Surour, the Speaker of the People's Assembly, a bill for the amendment of the Penal Code and the Code of Criminal Procedures. Two days later on May 22, the Speaker presented the bill to the Legislative Committee which then held a special meeting at noon the same day.

The committee approved the amendment bill after introducing some slight alterations. Some of the members of parliament and the Committee voted against the bill and demanded that their objections be recorded in the minutes of the meeting. These were: 'Abdel-Menem al-Alamy, Fikry al-Gazar, Kamal Khaled and Muhammad Abu-l-Fadl al-Gizawy.

The bill was presented to parliament along with the committee's report in the evening session of 27 May 1995, and was ratified on the same day by the attending members (45 members of a total of 444). The following members voted against the bill:

The President of the Republic ratified the Law later that evening. It was published in the Official Gazette on the morning of June 28 as Law No. 93/1995. It went into effect on the same day.

The rationale of the new law

Exerpts from the new law reveal an intent to strengthen what was thought to be weak penalties in the Penal code in an effort to protect a "citizen's reputation, honor, and dignity" from violations committed by the Press. Text of the law details such concerns:

"The stipulations on crimes of slander, abuse and revealing of secrets in the penal code as set forth in chapter seven of book three, and crimes committed through news papers - known as publishing crimes - set forth in chapter fourteen of book two, promulgated by Law no. 58 of 1937, even though amended slightly, its stipulations now require to be reviewed and to increase the penalties on the crimes it deals so that they may deter violation of the Law a matter that has not been achieved by the present light penalties, in comparison to the legislation on this matter in democratic countries. This amendment regains the balance for the procession of freedom and enhancement of democracy and its continuos progress as freedom of opinion and expression enjoys unprecedented horizons and the word now has - as a result of the unprecedented development of the publishing instruments and media's for information especially the written one - a deep influence on individuals and groups, on their private and public security, and basic interests and the entity of the state as a whole. Therefore it has become necessary to work towards maintaining all of this and draw a line between the limitless freedom and the aggression and violations committed in the name of freedom. For, the high principles of freedom may not be used to destroy a citizen's reputation honor and dignity, to infringe upon his private life , to threaten the state by disturbing public peace, arousing panic between people harming public interests or showing contempt for state institutions or harming the national economy or national interest of the country"

Changes in the Penal Code

The new law provides for the following changes in existing law:

A) It amends certain articles, notably nos.188, 302, 303, 306 bis a, 307, 308 and a number of other articles from the Egyptian Penal code.

B) It repeals the final clause of Article 178 clause 3 and 306 bis b from the Code of Criminal Procedures.

C) It repeals Article 135 of the Code of Criminal Procedures (No. 150 year 1950) and article 67 of the Law of the Press Syndicate (No.176 year 1970).

1): Article 1 of the law:

Article 188:

The new amendments to Article 188 widen the scope for pressing charges against individuals by adding the phrase "publishing false or biased rumors, news and statements or disconcerting propaganda". The phrase "if related to public peace or interest" is amended to "if it offends social peace, arouses panic amongst people, harms public interest or shows contempt for the state institutions or officials" making the law more general and comprehensive. Article 188 is further amended, making imprisonment mandatory for the aforementioned infractions, whereas the original article provided for imprisonment and/or a fine.

The period of imprisonment is increased to a possible 3 years whereas the original Article stipulated that imprisonment is not mandatory and cannot exceed one year.

The original fine - ranging between twenty pounds and 500 pounds ( according to the amendment of Law no. 29 of 1982 ) - is raised to a minimum of five thousand pounds and a maximum of ten thousand pounds.

The above mentioned clauses are taken from Article 102 bis (added to the Penal Code by Law no. 112 of 1957, amended by Law no. 34 of 1970). Deeds and phrases from Article 102 bis, such as "showing contempt for the state institutions or officials" have been added.

The last clause of the Article incriminates certain acts and adds new penalties. It raised the penalty from a maximum of three years imprisonment (on the grounds that it is a petty offense) to imprisonment for a period of no less than five years, without stating a maximum period (which is ten years according to Article 16 of the Penal Code) and a fine of a minimum of ten thousand pounds and a maximum of twenty thousand pounds.

It also adds conditions for increasing the penalty "if material is published in a way mentioned in the preceding clause for the intention of harming the national economy or the national interests of the country or if which consequences are such harm".

Article 302

Originally, this Article exempted individuals from the penalty of slander in cases where an accusation was "directed at a public official or a civil servant acting in the capacity of public representative in the course of work, and the accusation is done good faith and within the frame of the work of the public office, service or the public representation on the condition that all that accusation is true". The Law amends the text of the original article with the phrase "such shall not be overlooked if he believes in the truth of this deed". The reason for this amendment is that court rulings upheld by the Cassation Court have repeatedly acquitted journalists after it has been established that "the journalist believed in the correctness of the incident" . Thus, the amendment increases penalty's scope for application in cases of slander of public employees, representatives or civil servants.

Article 303

The new Law increases the penalty of imprisonment from a minimum of 24 hours to that of one year, and increases the maximum from two years to three years. It also raises the fine from a minimum of twenty pounds and a maximum of 200 pounds to a minimum of five thousand pounds and a maximum of fifteen thousand pounds.

If the slander is against a civil servant or public representative the penalty is imprisonment for a period of no less than a year and no more than five years, and the fine ranges from ten to twenty thousand pounds instead of fifty to five hundred pounds.

Article 306 bis a, Article 307 and Article 308

The penalty is doubled from a maximum of one month's imprisonment as stipulated by Article 306 bis to one year imprisonment, with the addition of a fine of no less than 200 pounds and no more than one thousand pounds.

Article 307 sets the minimum and maximum fine in accordance with articles 182,186, 303 and 306 if the crime ( of slander) is committed through publishing.

Article 308 has made imprisonment AND a fine mandatory regarding articles 179, 181, 182, 303, 306 and 307 if the insult or slander was directed against an individual's honor, or a family's reputation or infringes on personal matters. Also, the fine shall -- in case of publishing -- be no less than half the maximum fine and the period of imprisonment be no less than two years.

2): Article 2 of the law.

Article 2 stipulates that the penalty of imprisonment shall be no less than one year for crimes set forth in articles 172, 176, 178 clause 3, 179, 186, clause three of Article 309 bis of the Penal Code.

The fine shall be no less than five thousand pounds and no more than ten thousand pounds for crimes set forth in Articles 178, 182, 184, 185, 186, 189, 190, 193, 194 and 306 of the Penal Code.

The minimum fine is increased to five thousand pounds and the maximum to that of ten thousand pounds in Articles 174 and 201.

3): Article 3

Article 3 repeals certain clauses of those Articles which double the penalty or make imprisonment mandatory in the case of a second offence due to the increase of the penalties which now exceed the previous old penalties as stipulated in articles 178 and 306.

4): Article 4

Article 4 repeals Article 135 of the Code of Criminal Procedures, and Article 67 of the Law of the Press Syndicate. These two articles prohibit preventive arrest in crimes committed through the press.

Law 93/1995 will have the following results:

1- The expansion in the incrimination of acts such as "publishing false or biased rumors, news and statements or disconcerting propaganda or if such were to offend social peace, arouses panic amongst the people, harm public interest or shows contempt for State institutions or officials or if material is published in a way mentioned in the preceding clause for the intention of harming the national economy or the national interests of the country or if which consequences are such harm".

2- Increase of penalties.

In the past the judge had the choice to fine and/or imprison the defendant . Now it is mandatory to imprison the defendant AND fine him/her. if found guilty. The penalty of imprisonment is raised from a minimum of 24 hours and a maximum of two years, to a minimum sentence of two years and between five and fifteen years as a maximum sentence. It raised the fine from 20 pounds minimum to 5,000 pounds as a minimum and 20,000 pounds as a maximum.

3- Provision for the order of preventive arrest in cases of crimes of publishing by the Public Prosecution office.

The Law has amended and repealed 24 articles of the Penal Code, an article from the Code of Criminal Procedures and an article from the Law of the Press Syndicate. The objectives of this Law are completely contrary to the objectives set down in the explanatory memorandum and the report by the Committee of Constitutional and Legislative Affairs. As a result, an individual under investigaion for suspected crimes committed under the new law can be detained for a period up to 6 months.

The law and its constitutionality

1- In practice the Law incriminates all forms of freedom of opinion and expression especially that of the press. It aims at imposing more restrictions on the right of citizens to receive information and the right to criticism and practically terminates freedom of the press and journalists.

This is contrary to the recommendations made by the second conference for journalists on the necessity to repeal and amend those articles that increase the penalties against freedom of opinion, expression and publishing stated in the Egyptian Penal Code, specifically Articles 102, 102 bis, 171, 174, 176, 178, 179, 181, 182, 184, 185, 192, 194, 195, 196, 198, 199, 200, and 201, and the recommendation "to repeal all laws, conditions and conventions which restrict public and individual freedom or anything related to the rights and freedom of opinion in a manner that does not hinder the forces of society in combating terrorism."

Instead the Law increases penalties in an unprecedented manner; specifically, by way of the above mentioned Articles- and by adding new crimes which did not exist previously and acts which were not of a criminal nature. For example, Article 102 bis describes a penalty of imprisonment less than three years and a fine not more than 2000 pounds. Subsequent to the amendment to Article 188, the penalty has increased to between 5 to 15 years imprisonment and a fine of up to 20,000 pounds.

The Law defines new crimes in a loose manner so that they may be interpreted in several different ways. Such phrases could lead to the incrimination of every news item, opinion, article, headline, report or caricature published in the press to which the government objects.

The original and amended provisions of Article 188 put the burden of verifying information on the journalist and not on the Prosecution, as has been the case since 1925.

2- The Law reveals more enmity towards freedom of the press and democracy by adding a provision to article 302 which acquits a person from the charge of slander of a public employee, a person of a representative capacity or someone assigned to a public service, if such is done in good will and on the condition that the accusations be proved. The Law has added the phrase "regardless of his belief in the correctness of this deed." This addition has been made because the judiciary has established that good intention and the belief of the slanderer (that his accusation is correct) is a reason for permitting slander.

In 1946 the Court of Cassation stated that " Good intent is a reason for permitting crimes in general including the crime of slander, if the intention of the perpetrator is correct and he believes in the legitimacy of the deed. (Cassation 11/11/1946 Regulations Group part 7 p. 199 and thereinafter).

The Cassation Court also states that it has established that "good intention in the crime of slander is considered to mean that the accusation is made with good intention, that is in the belief that the incidents of the slander are correct and in the public's interest and not for defamation" Cassation 22/12/1959 judicial year 10, Rulings Group p 1055, cassation 6/1/1962 rulings group year 13 p 47, cassation 8/2/1966 rulings group year 17 p 106, cassation 7/4/1969 year 20 Rulings Group p 1908."

There remains a final remark over the way in which this Law was issued. The parliament resumed sessions on Saturday, 27 May 1995, and interrupted the break it had been given without declaring the reason for doing so. The authorities were careful that news of the bill did not leak out until the last moment. It did not invite the parliamentary body of the ruling party to meet to discuss the Law. The Law was neither presented before the Cabinet, nor the Department of Legislation of the State Council in violation of Article 63 of the Law of the State Council which stipulates that "each ministry or authority shall before passing any law or presidential decree of a legislative nature must present the bill before the legislative department for reviewing and may commission the Council to prepare such legislation".

The Higher Council of the Press was not consulted in violation of Article 44 of Law no 148 year 1980 on the authority of the press which stipulates that the Higher Council of the Press may give an opinion on those bills which regulate the press affairs " and also Article 75 of the implementation regulations of the Law.

The Committee of Constitutional and Legislative Affairs of the parliament met on the morning of Saturday May 27, 1995 -- 24 hours after its members were summoned to "discuss some important matters related to the work of the committee" -- without any reference being made to the bill. Naturally, amidst this atmoshere for secrecy, the Press Syndicate was not consulted on the Law.

And so, another law is added to the arsenal of restrictive laws which violate fundamental human rights. According to the heads of the opposition political parties, the Law threatens to liquidate the limited margin of freedom remaining in Egypt today.

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