Report: 'Eisam al-Din Hassan
Documentation: 'Abd al-Mawla Ismail, Siham Badawy
Report published in Cairo by CHRLA, the Center for Human Rights Legal Aid, October 1996
In November 1976, Egypt officially changed from a single-party to a multiparty system. Since this transition, Egypt has witnessed the formation of 14 new political parties. However, despite this apparent political liberalization, the freedom of forming political parties and political societies in Egypt has been severely restricted by the legal system, both through the official laws and through the practical application of these laws. For example, some constituencies, such as the communists and the Muslim Brotherhood have been expressly forbidden to form political parties and have been harassed in various ways by the state security courts, emergency courts, and military courts. The founders of al-Wasat were brought before a military court and charged with "circumventing the law in order to form a political party voicing the opinion of the Muslim Brotherhood," a charge without any precedent in Egyptian legal history. In addition to restricting the formation of political parties, the legal system has also denied Egyptian citizens freedom of expression and peaceful assembly and has blocked access to free participation in public affairs.
The multiparty system in Egypt is essentially one of party formation from the top. This type of polity is one in which a strong executive authority directly determines the parameters of multiparty activity in political society. For example, the Egyptian government can refuse to license a new political party if it violates any one of the following general principles:Preserving national unity, safeguarding the social peace, adhering to the Constitution, defending the 'socialist gains,' or protecting the 'alliance of the working class.'
This type of top-down polity is a direct outgrowth of the authoritarian traditions of the 1952 Revolution and the Arab Socialist Union (ASU).
This system of party formation has resulted in a party framework that is more indicative of authoritarian bureaucracy than the diverse political desires of the Egyptian people. The means by which the existing parties were formed is reflective of this fundamental weakness. Suffice it to say that the institution of the presidency has played a decisive role in forming five of the existing parties. Three of these were outgrowths of party forums within the ASU which the late President al-Sadat turned into political organizations and then into fully-fledged political parties. The NDP (National Democratic Party)—the ruling party— itself was established by President al-Sadat from within the remaining structure of the former ASU. President al-Sadat also signed the instructions to establish the Labor Party and smoothed its way to fruition. Aside from al-Wafd, the existence of the eight remaining political parties is attributable to their founders' skillful manipulation of the judiciary,whether the Higher Constitutional Court, which eased some of the strict restrictions imposed on party formation, or the Higher Administrative Court, which has at times been lenient in applying some of the patently obstructive provisions of the Law on Political Parties. The existence of these eight parties is thus due to the legal and technical skills of their leaders in dealing with the judiciary—rather than their inherent political potential. By deforming the framework of the existing parties and creating serious obstacles to free and open elections, the Egyptian legal system has rendered the 1976 transition devoid of any significant political meaning.
This report aims to study the obstacles to the formation and functioning of political parties and political societies in Egypt. CHRLA considers that the right to form and operate political parties and political societies is a basic constitutional right which, along with freedom of expression, is at the core of any truly democratic system.
1. The Law on Political Parties (Law 40/77) has established the Political Parties Committee,a committee which allows the NDP to control party formation and party activity (such as party resolutions). The national ruling party has the upper hand in choosing the members of this committee and the committee's decisions are valid only in the presence of members of the NDP. The law has granted this quasi-governmental committee wide authority over parties,authority that should properly lie in the hands of the Egyptian people. For example, the committee can demand the dissolution of a party if the party has failed to fulfill any of the conditions set down by the law for forming a party. The committee can order the suspension of a party newspaper and activities for reasons of "national interest." Appeals submitted to the Higher Administrative Court reveal that the committee has, since its establishment, rejected at least 32 applications to form new parties. These rejections were based on a condition that is nearly impossible to fulfill,the condition of distinction,i.e. that the platform, policies, and methods of the new party should be different from those of the existing parties.
The committee then uses another requirement in combination with the condition of distinction to place the founders of new parties in a political Catch-22: if the platform of a new party places emphasis on the adherence to the Constitution, as do the existing parties, it may then be rejected for not being different from the existing parties. But if the party platform calls for the amendment of the Constitution, it can be rejected for violating the Constitution. As regards the latter, this report will assert that new parties should not be denied the right to call for the amendment of the Constitution: since the Constitution is based on the will of the people, the people, via their parties, have an absolute right to amend it.
As regards the principle of distinction, the committee has ignored the Higher Administrative Court's principles for applying the condition of distinction. These principles demand that the committee compare the existing parties, one at a time, to the party applying for a license. Instead the committee compares the applying party to all the existing parties taken together. This makes it almost impossible for a new party to meet the condition of distinction. At times the committee has gone even further. For example, in one case a new party was rejected solely because one of its founders had written a book which expressed some ideas similar to those found in the existing party platforms.
Indeed, CHRLA believes this principle of distinction, if applied evenly, would result in the rejection of all political parties. Furthermore, an even-handed application of this ad hoc procedure would have necessitated the dissolution of the ruling NDP itself. For the original platform of the NDP was barely distinguishable from that of its predecessor, the Misr Arab Socialist Party. The only clear distinction was that of leadership—the NDP was led by the late President al-Sadat,hardly a distinction that the committee has been inclined to recognize in other cases.
And not for this reason alone would the NDP have been banned. After its inception, the NDP proceeded to violate the other condition of the Political Parties Committee: adherence to the Constitution. NDP policies have included such measures as the curbing of free education and free health care, privatization, and cut government spending on services. All of these policies, under an even handed treatment by the Political Parties Committee, should have been viewed as an attack on the Egyptian Constitution and reverses in the "gains of socialism."Thus by the logic of its own current policies—the principle of distinction and adherence to the Constitution—the NDP should long ago have been dissolved.
2. The Higher Administrative Court has not been allowed to act as a court of appeals for the political parties, as should be the case. Instead, the amendments to the Law on Political Parties assign these appeals to an extra-judicial body outside the Higher Administrative Court. The members of this body are appointed by the minister of justice and include several public figures in addition to members of the Higher Administrative Court. In many cases the individuals appointed are not legally qualified to rule on these matters. This report will show that this extra-judicial body has confirmed the committee's rejection of new party applications. Moreover, challenges filed by 13 parties are being held in abeyance by this body.
3. Even in the arena of the party press there have been numerous restrictions on true political freedom. The attempts made by the parties to influence public opinion through the press have clashed in several cases with the provisions of the Penal Code. One example of this is Law no. 93/1995, which along with other legal rulings has restricted freedom of expression and led to a stiffening of penalties for expressing one's view. As the price for criticizing public figures, the party press has seen its newspapers impounded, its administration harassed, and its journalists brought to trial in either civil or military courts. Along these lines, we should take note of the following actions taken against the press in Egypt. In 1981 all party newspapers were suspended for about a year. This suspension caused al-Wafd and al-Tagammu' to declare a freeze on their activities. In another incident, workers of al-Ahali newspaper were referred to judicial courts in no less than 196 cases of defamation. In the 1990s, the articles of the Anti-Terrorism Law were used to investigate opposition journalists and their editors-in-chief. The one year application of Law 93/95 has brought at least 56 employees of the party press to investigation or trial.
4. The Egyptian electoral system, which is dominated by the NDP, does not allow for free political competition. One simple example of this is that citizens are not allowed to run for the office of president. But there are other, more practical shortcomings that can be clearly seen. Since the establishment of a multiparty system 20 years ago, there have been a total of five parliamentary elections. In the course of these elections, only five opposition parties have managed to establish a presence in the legislature. And this presence has been a marginal one at best: following the 1995 election, all the opposition parties together accounted for only 2.9 percent of the total number of seats in parliament.
In summary, the real criterion for judging the multiparty system lies not in counting the number of parties in existence but rather in assessing their potential to act in the political arena. If the legal system has forced these parties to adopt self-contradictory platforms, prohibited freedom of expression, prohibited freedom of peaceful assembly, outlawed demonstrations and sit-ins, and confined the scope of the parties' activities to their headquarters and their newspapers, then this legal system has rendered the political system of Egypt single-party in all but name.
CHRLA believes that a true opening of the political system to multiparty democracy requires the institution of meaningful and comprehensive democratic reforms. In this regard, this report will offer a series of recommendations for the political reform of Egypt's government. The first of these is that political parties and political societies be allowed to form on their own,free of restrictions and hindrances. Along these lines, the Political Parties Committee and the functions assigned to it should be immediately abrogated. Party formation should only be subject to the serving of notice. Objections to the formation of a new party, when they occur, can be heard before the administrative judiciary,and this court should not include members from outside the judiciary. The report will also call for removing obstacles to political and party activity,through abrogating laws that interfere with the right of peaceful assembly and laws that restrict the exercise of freedom of opinion and expression. It will also call for a review of the presidential election system, for transferring the general election department from the Ministry of the Interior to the Higher Council of Judicial Bodies, for guarantees that ensure free and honest elections, for all parties to be granted equal opportunities in running for election, and for compliance with court judgments related to electoral honesty.
Finally, CHRLA is hoping that this report will encourage all political actors in Egypt to adopt its recommendations. CHRLA believes that these recommendations are an important element in countering terrorism, a phenomenon which has spread as a result of the present system's obstruction of legitimate and peaceful political opposition.
Introduction | Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Conclusions | Appendices
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