The loophole theory that Fouad is talking about here isn’t accurate as it doesn’t apply to the NGO incident. My argument is that the problem isn’t in Egyptian law, which is good but that Egyptian laws have too much delegative authority, giving power to by-laws. Egyptian law always includes the clause “to be applied within the confines of the law في حدود القانون) that phrase known to all lawyers is an excuse to open up strict and chocking by-laws. For example when it comes to freedom of information and access the constitution mandates it as a right and employees can thus be forced to dispell information but ministerial by-laws actually make it illegal to dispense information. That is why NGO’s must sue the government under this constitutional principle to get information. This was the most recent episode with ECESR and EIPR who were suing the government on the legality of using live ammunition to disperse protest. In order to prove that in fact it was legal to use live ammunition they first had to get their hands on that ministerial decision, and the court’s first ruling mandated that the Ministry of Interior (MOI) give up that decision (or by-law)
NGO’s have applied for registration at various times in the past according to law 84 2002. The ministry of social solidarity sends the applicants a telegraph the next day saying its being studied i.e. Pending approval. Although a clause in law 84 states that after 60 days they should be considered approved unless they are formally rejected, that clause is pretty much useless since law 84 by-laws allow the 60 day period to be renewed. Law 84 was struck down by Supreme Constitutional Court in 2000 after Hafez Abu Saeda was being investigated for receiving foreign aid but reintroduced again (by the regime / parliament) in 2002 and has been in effect since then and until now when the crackdown began. The NGOs followed through with court rulings allowing them to operate without registration, in effect outside the domain of law 84. This year the SCAF regime tried to introduce a new NGO law which stipulated in article 12 a clause that said “NGOs cannot operate outside the domains of this law”, which meant those that were operating through court rulings were effectively illegal. The introduction of this law coincided with the crackdown. This is viewed as more than a coincidence and rather an attempt to introduce the “old/new” law of 2000 and reinvent it. It is thus no surprise that this coincided with the crackdown.
The problem isn’t with the laws themselves (which are good) but with the regime’s strategy to hold NGOs hostage and make sure they are dis-incentivized and disempower them to operate according to what the regime dictates. This process of disempowering NGOs by making them illegal means they can’t afford to step out of line and prefer their “limbo” status instead. This is a classic case of disempowerment and accumulation by dispossession.
During the recent crackdown many NGOs felt there would be no grounds for a case against them. However, the regime pressed ahead with the case with State Security judges (namely Ashraf Ashmaway; former head of State Security prosecution and Sameh Abu Zeid; advisor to the Prosecutor General) and the introduction of the new law.
Its not a question of loopholes, but which prosecutor would give up his time investigating what can be considered, at most, administrative mistakes and licensing issues and go against previous court rulings. The answer I believe speaks for itself.