Published in Cairo by CHRLA, The Center For Human Rights Legal Aid, March 1996
Since the last law dealing with publications offences(Law 93/1995), was passed, hundreds of journalists have been investigated by the Public Prosecution Office, including 18 editors-in-chief, from both national and party newspapers. In response, there has been an increasingly heated campaign demanding its repeal.
The draft of a new publications law has just been released. The drafting committee (formed by the Higher Press Council) will present the draft to the President for his comments before discussions are held in the Cabinet, the People's Assembly and the Shura Council. An Extraordinary General Meeting will be held at the Journalists' Syndicate on Sunday, March 10, 1996, to finalize the Syndicate's response to the draft law.
Before commenting, either positively or negatively, on the draft, CHRLA would like to stress its deeply-held belief that the freedom of the press is a primary indicator of the extent of democracy and social and political stability in any given state.
A free press provides a forum for political discussion and the exchange of ideas, information and opinions. It plays a social role of paramount importance by informing the public about both local and international affairs. The creation of an enlightened public opinion and "moral unity" enables the electorate to properly assess its government's performance and to curb any excesses.
Sociological studies have shown that a free press can act as an incentive to the improvement of working practices, contribute to higher productivity and lead to a rapid upgrading of public services. This is, however, contingent upon its being able to successfully act as a watchdog (with respect to corruption, for example) and to freely identify the real problems facing society.
But, just as it can guide and inform, the press can also be a danger to society. In a repressive, authoritarian state, the media, including the press, can be used as an instrument of delusion and deception. The rulers of countries in the developing world, including those of the Arab world, are well aware of the influence of the press. They are as keen to control and dominate it as they are to control the armed forces, since these two represent the major potential threats to their power.
There is no true freedom of the press unless news and information can flow freely both inside, and outside, national territories. Egyptian nationals, as well as corporate bodies and political parties, must have the freedom to establish newspapers or other publications. Journalists must be able to openly gather information from original sources and work without fear of investigation or prosecution. Censorship, either before or after publication, is unacceptable: publications should not be warned, withheld or withdrawn.
In its evaluation of the new draft law, CHRLA wishes to highlight both the positive steps it has taken towards supporting and protecting the freedom of the press and to point out areas where it has failed to address crucial issues. In the light of the information available, CHRLA has the following comments:
Articles 1, 3, and 5 of the draft law stress the freedom and the independence of the press and, specifically, the illegality of publications being withdrawn or withheld. Article 4, similarly, states that " Censorship of the press is forbidden." However, the Article then adds the following qualifications to this statement: "There are exceptions in cases when a state of emergency has been declared or in wartime. In these circumstances, a limited censorship can be imposed on the press with regard to affairs related to public safety or national security."
A state of emergency was declared in Egypt in 1981, under the pretext of controlling violence and terrorism, and has remained in effect ever since. This provision of Article 4 therefore allows the Egyptian government to restrict the freedom of the press, whenever necessary, in order to maintain public safety and national security.
CHRLA condemns the acts of violence and terrorism which have been carried out by extremist Islamist groups, and acknowledges the State's responsibility to confront such acts. However, CHRLA also believes that it is crucial to support and protect the freedom of the press - perhaps even more so when the nation is in a declared state of emergency. A free and independent press is essential in order to help form an enlightened public opinion which is capable of resisting violence, terrorism and intolerance.
In this respect, CHRLA considers that an eloquent speech made by the Rt. Hon. Winston Churchill is particularly relevant. Churchill's speech was made in the House of Commons at a time when Britain was exposed to the immediate threat of defeat at the hands of the Wehrmacht. In the speech, Churchill confronted efforts made by the Opposition to undermine confidence in the Government and to cast doubts on the efficiency of the armed forces. He pointed out that these criticisms were being transmitted by radio and telegraph all over the world and would undoubtedly worry Britain's friends and please her enemies.
Nevertheless, Churchill also stressed that criticism of himself and his cabinet was a supreme example of the unrestricted freedoms enjoyed by the British Parliament. The speech was a clear affirmation of support for freedom of expression, even during wartime.
The draft of the new law contains 90 Articles, as compared to the 56 Articles of the Press Authority Law (Law 148/1980), currently in force. This, in itself, invites reflection on the modifications and additions in the new draft. The current Law outlines the duties and obligations of journalists in a single section, while the draft law devotes Articles 6 to 22 to journalists' rights and Section Three, Articles 23 to 44 to their obligations.
The draft law specifies several new rights for journalists, some of which are adaptations of ideas in the CHRLA/Journalists' Syndicate model. However, the draft law also imposes several new obligations and specifies criminal penalties in cases of violation. In CHRLA's view there is no real balance between the rights that have been granted and the obligations that have been imposed.
Article 6 of the draft law stresses that journalists are independent and subject to no authority, except for that of legislation. Similarly, Article 7 stresses the illegality of penalizing a journalist and compromising his or her personal security because of his or her opinions. However, despite this positive note, the draft does not specify the circumstances in which a journalists' security could be compromised, although this is crucial to ensure that they are adequately protected.
The draft should have an additional clause, modeled on the one in the CHRLA/Journalists' Syndicate draft, which reads as follows:
"The following are to be considered as compromising the personal security of a journalist:
a. the exposure of a journalist to any pressure or coercion by the authority of the State.
b. forcing a journalist to disclose the sources of his or her information, even if within the context of a criminal investigation.
c. arresting a journalist during the course of his or her duties, or because of news or opinions s/he has printed.
d. illegally confiscating a journalist's work, or preventing him or her from publishing any information or opinion. (This bears no relation to the rights of the editor-in-chief or the editorial board to publish or decline to publish material.)
e. forcing a journalist to work in a different position or different establishment, or moving him or her, within the same establishment, to non-journalistic duties, or to a journalistic post that is inferior, in terms of finance and prestige, without a written consent from the journalist.
f. depriving a journalist of any financial or other privileges, either direct or indirect, if s/he has been enjoying them within the context of legislation and the regulations of the Higher Press Council or under the terms and conditions of an employment contract.
g. depriving a journalist of promotion, bonuses and additions, without a legal reason.
h. threatening or blackmailing a journalist, in any way, in order to force him or her to publish or write something which contradicts his or her journalistic conscience or professional honor, or coercing him or her to write in support of the interests of certain authorities or personalities."
The draft law has several positive aspects. Article 8 stresses that it is the responsibility of the Journalists' Syndicate to interrogate and, if necessary, discipline, journalists about their work; Article 9 gives journalists the right to obtain and publish news from original sources; Article 10 states that all publications should have equal access to the same sources of information and Articles 12 and 13 give journalists the right to have access to all official documents, to receive answers to their queries and to be invited to attend conferences and public meetings. The draft protects these rights by levying a fine of up to LE 15,000 on anyone who unjustifiably withholds them.
Article 14 states that anyone who offends or insults a journalist in the course of his or her duty is liable to a prison term of up to six months or a fine of up to LE 5000. If the offense involves any physical assault or injury, the penalty is increased to a prison term of up to two years or a fine of up to LE 5000.
Article 15 gives journalists the right to break their contracts with publications if the circumstances under which the contract was drawn up have changed. In these circumstances the journalist must give the employer at least three months notice. This right does not take away the journalist's right to compensation.
This is a new right, never before granted to journalists. However, in CHRLA's view, it should be rephrased. Article 14 of the CHRLA/Journalists' Syndicate model is more specific and less equivocal in its phrasing:
"In accordance with his or her conscience, the journalist is entitled to willfully break a contract of employment without being committed to a certain time limit and while preserving the right to compensation. This is conditional on proof being furnished in court of drastic alteration in the policy of the newspaper or publication which conflicts with the beliefs of the journalist and thus changes the circumstances under which s/he originally signed the contract."
CHRLA is particularly concerned to note that the draft law ignores demands for a provision limiting penalties for publications offenses to fines and excluding the possibility of detention. This is even more critical, given the draft law's tendency to concentrate on journalists' obligations.
Article 25, for example, states that "Journalists should be fully committed to the Journalists' Code of Honor" and Article 26 states that, while the journalist has no right to invade the privacy of private individuals, s/he is entitled to expose the private dealings of public personalities, if this exposure is relevant to their work." .Article 27 goes on to stipulates a prison term of up to a year and/or a fine of not less than LE 5000, if the provisions of Articles 25 or 26 are violated. Similarly, Article 32 specifies a prison term of not less than three months, and/or a fine of not less than LE 1000 and not more than LE 4000.
In CHRLA's view, the draft law should be modified to exclude any imprisonment penalties. The penalties specified should be limited to fines, to be progressively multiplied in the case of further violations.
Article 45 of the draft law states that criminal liability for offenses committed by a publication is considered personal. Thus, the editor-in-chief is not responsible for any offenses committed by his or her publication unless the journalist concerned cannot be named and it can be proved that publication took place with the editor-in-chief's consent.
This represents a welcome return to the general constitutional rule which states that criminal liability is personal.
Article 47 of the draft law makes it illegal to provisionally detain a member of the Journalists' Syndicate for a publication offenses, except for those offenses stipulated in Article 179 of the Penal Code. This effectively repeals Article 5 of Law 93/1995 and restores the guarantees in Article 135 of the Code of Criminal Procedures and Article 67 of the Journalists' Syndicate Law (Law 76/1970).
Although this represents a positive response to the demands of the Journalists' Syndicate CHRLA can discern no constitutional or legal reason for exempting Article 179 of the Penal Code (which concerns insulting the President), from these guarantees.
The Constitution does not grant privileges to the President, but it does contain provisions justifying the provisional detention of journalists in offenses involving insult to the President's personality or status. Conversely, Article 179 does not give a legal definition of the term "insult" that allows the status quo authority to provisionally detain journalists for directing criticism at the President, under the claim that such criticism is considered to be within the limits of defined offenses of ad hominem insult.
The model publications law drafted by CHRLA and the Journalists' Syndicate specifies that the provisions of several pieces of legislation, including Article 179 of the Penal Code, should not apply to publications offenses.
Article 52 of the draft law reduces the penalties for defamation offenses by specifying as maximum prison terms what are currently minimum prison terms. Fines have been maintained at the same levels, although maximums have been set in some cases where none existed before.
Currently, the penalty for defamation is a prison term of not less than a year and/or a fine of not less than LE 5000. If the defamation involves a civil servant or someone with parliamentary status and is connected with their work, the penalty increases to a prison term of not less than two and not more than five years and/or a fine of not less than LE 10,000 and not more than LE 20,000.
Article 52 of the draft law reduces the penalty for a journalist convicted of defamation to a prison term of not more than a year and/or a fine of not less than LE 5000 and not more than LE 15000. If the defamation involves a civil servant, or someone with parliamentary status, and concerns their work, the penalty increases to a prison term of not more than 2 years and/or a fine of not less than LE 10,000 and not more than LE 20,000.
In CHRLA's view, the draft law should, instead, stress the freedom and independence of journalists and remove the penalty of imprisonment, limiting penalties in publications offenses to fines, to be progressively multiplied in cases of further violation.
Article 53 of the draft law specifies a prison term, for not more than a year, and a fine, of up to LE 5000, if a journalist intentionally publishes "news, press-releases, false rumors, forged or fabricated documents which could lead to a breach of the peace or shock individuals or adversely affect the public interest." This modifies Article 188 of the Penal Code, currently in force, which does not specify a particular prison term.
Article 53 also excludes the phrase "contempt of State authorities and executives" that is contained in Article 188/1 of the Penal Code, and does not include the associated penalties specified in Article 188/2 - imprisonment for not less than five years and a fine of not less than LE 10,000 (which increases to LE 20,000.if the publication is "meant to damage the national economy or interest, or causes such harm to occur.")
However, these modifications do not address journalists' demands that no prison terms, only fines, should apply in the case of publications offenses.
CHRLA notes, with deep regret, that the draft law does not improve the current situation on the ownership of publications in Egypt. Section 2, Article 53 states that "the freedom to publish is given to political parties and public and private Egyptian corporate bodies."
In CHRLA's view, this Article should be modified to read: "The freedom to own and publish publications is guaranteed, licenses can be issued to public and private corporate bodies and to Egyptian nationals."
The draft of the new publications law contains several positive points, yet remains insufficient to meet the demands of journalists or to practically support the freedom and independence of the press.
In CHRLA's view, the following provisions should be added to the draft:
All these proposals are dealt with in more detail in the model publications law proposed by CHRLA and the Journalists' Syndicate.
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