معنية برصد انتهاكات حقوق التعبير في حق الأفراد و المؤسسات.

Q & A on the Supreme Council’s decision to ban publishing on the crisis of hospital 57357

Background

On July 4th, 2018, the Supreme Council for Media Regulation, headed by journalist Makram Mohamed Ahmed, issued a gag order on publication and broadcasting concerning Egypt’s Children’s Cancer Hospital 57375. The Council called on all parties to stop writing on the subject and to stop broadcasting audio and video programs that address this issue until a judicial investigation commission finishes its investigations and announces the results. This is the first time a gag order is issued by a non judicial body. The Council also asked anyone who has anything new in this regard to send it to the judicial investigation commission or the Supreme Council for Media Regulation to send it to the commission or to publish it if necessary. The Council warned all parties that legal action would be taken against any party that did not comply with the Council’s decision in this regard.

Recently the press, media and public opinion in Egypt were preoccupation with the issue of Children’s Cancer Hospital 57375, and the possibility of the existence of corruption in the process of collecting donations and spending them. This is what writer and scenarist Wahid Hameed, close to the circles of power, expressed in a series of articles attacking the hospital’s administration that were published in Al-Masry Al-Youm newspaper.  The executive director of the hospital, Sherif Abu El-Naga, and others responded to these articles defending the hospital and its role. As a result, the minister of social solidarity, Ghada Wali, decided to form a ministerial committee to verify the existence of any financial irregularities or mismanagement of resources. The committee is headed by the legal adviser of the ministry, with the membership of representatives of the department of free therapy of the ministry of health, a professor specialized in hospitals’ management, a pediatric oncologist and representatives of the central auditing organization and the administrative control authority.

The decision of the head of the Supreme Council for Media Regulation raised a lot of criticism among the concerned parties, especially journalists and media professionals concerned with the decision. As a result, the attorney general sent a letter to the Supreme Council for Media Regulation on Saturday, July 7th, stating that: “Your gag order on publication concerning Hospital 57375 is null and ineffective”, adding that the decision is interference in the jurisdiction of the judicial and executive authority entrusted to protect the public affairs of the state. Accordingly, the attorney general summoned Makram Mohammed Ahmed for investigation before the Supreme State Security Prosecution, and asked him to explain the reasons for his “nullified” decision to ban publication on hospital 57357. However, the attorney general did not stop here, but issued a gag order -unintelligible- on the publication of anything concerning the planned investigations with the head of the Supreme Council for Media Regulation.

In response to the statement by the attorney general in which he asked the head of the Supreme Council for Media Regulation to explain the reasons for his decision, the council sent a letter to the attorney general confirming the legality of its decision, and that the case is not being investigated by the Public Prosecutor’s Office or the judiciary, and that the Law on the Institutional Organization of the Press and the Media No. 92 of  the year 2016 gives the council full right to issue such decisions.

Through this paper, the Association for Freedom of Thought and Expression (AFTE) attempts to identify the legality of the Supreme Council’s decision and to discuss the legal and the societal debate around it by answering four revealing questions.

Is the decision of the Supreme Council legal?

Until now, no one has officially responded to this question!! After the head of the Supreme Council was interrogated by the Supreme State Security Prosecution, Makram Mohammed Ahmed expressed his respect for the Public Prosecutor’s Office, adding that he was summoned for inference and not for interrogation.  He said that he did not know that the attorney general was investigating in the matter, which was confirmed by the head of the journalists syndicate Abdul Mohsen Salama, who attended the session with others, as representatives of the Journalists Syndicate. However, at the time of writing of this statement, the Public Prosecutor’s Office did not issue a statement answering the open questions about the matter.

Was it an investigation or an inference? Was he dismissed from the prosecution’s office, or was he released? Was he summoned as head of the Supreme Council for Media Regulation? Finally, was his decision legal?!!.

AFTE believes that the decision is legally flawed in many respects, which will be discussed in details. However, it is based on a basis in the law, which is something will not be dealt with by the investigations unfortunately. There is a problem with the mentality of those responsible for drafting the laws and regulations in Egypt, which in many places are ambiguous and not specific. This places the greatest power in the hands of executives in the interpretation of the legislative text, which some use for imposing their authority or expanding its scope, as the “Supreme Council” did.

This is confirmed by Makram Mohammed Ahmed’s statement, after he was summoned to a Public Prosecution

session; he said he will ask the concerned parties to clarify and interpret the text of Article 26 of the law, which supports the argument saying that there is discrepancy in the interpretation of the text of the article. Here it should be noted that the head of the Supreme Council for Media Regulation has the right to request from the party issuing the legislation or from the State Council to clarify what is meant by the text of the article.

Firstly, AFTE was unable to ascertain whether the case of the Children’s Cancer Hospital 57375  was subject to any investigations by the Public Prosecutor’s Office or not. What is known until the moment is that an administrative inquiry is being carried out by a ministerial committee formed by the minister of social solidarity. This leads us to emphasize that the only case in which the Supreme Council for Media Regulation has encroached on the authority of the Public Prosecution in issuing its decision to suspend publication is when there are investigations conducted by the Public Prosecution, or when there is a case in the courts related to this matter. In this case, only the judicial authority has the right to issue gag orders. However, if the issue is -only- being investigated by the ministerial committee formed by the minister of solidarity, then we cannot say that the Supreme Council and its head have encroached on the Public Prosecution and its authority. But the real transgression here is primarily against the profession, and the right of the public concerned with accessing the information and knowing the truth of the incident.

Why did the Council issue the decision?

The head of the Supreme Council for Media Regulation, Makram Mohammed Ahmed, said in several press statements: “We decided to stop publishing anything concerning this crisis so that this edifice is not affected by that battle, which should not last forever, especially after the matter reached the point of insults and swearing”. He added that the continuation of this battle without giving the ministerial committee an opportunity to express its opinion would harm the charity work in Egypt. He pointed to the seriousness of this matter and the possibility of it leading to the reluctance of citizens to donate to charitable organizations, on which millions depend to access various services, noting that there is evidence of low rates of donations in some institutions.

What kind of administrative decisions is this?

It is clear that this was not a punitive or disciplinary punishment. The sanctions’ regulation set by the Supreme Council for Media Regulation stipulated that any penalties stipulated in the regulation should be based on investigations by the relevant committees of the Council; the complaints committee and the media monitoring and evaluation committee.

However, the Council’s decision, according to what is published, was not based on any investigation conducted by the committees of the Council in this regard to determine the nature of the violations committed by media institutions that addressed the issue. In its decision or explanatory letter to the attorney general, the Council did not mention any complaints it had received concerning any violations in the media coverage of the issue. Therefore, the decision appears to have been a precautionary measure to protect administrative investigations from being affected by the publication about the issue, as confirmed by the above statement by the head of the council.

What is the authority of the council in making decisions (organizational)?

Article 3 of the Law on the Institutional Organization of the Press and the Media No. 92 of the year 2016 gave the Supreme Council for Media Regulation the right to ensure that media institutions comply with the standards and principles of the profession and its ethics in order to achieve its objectives of ensuring the protection of freedom of the press and the media. As well as ensuring that media outlets comply with national security requirements.

Article 26 (section 3) of the Law on the Institutional Organization of the Press and the Media also gave the Council the right to prevent the publication or broadcasting of press or media materials for a fixed period or permanently, in case the media outlets do not comply with the standards and ethics of the profession or if they do not comply with national security requirements.

This is what the letter by the head of the Supreme Council to the attorney general referred to, as he was keen to confirm the legality of the decision of the Council to stop publication about the hospital’s issue based of articles (2,3,26).

In conclusion, the law gave the Supreme Council for Media Regulation the right to prevent publishing or broadcasting any content deemed to be in violation of the principles of the profession and its ethics or considered to be harmful to the national security. Here lies the whole problem; that in the absence of clarity of the legislative text it becomes subject to interpretations according to passions, and orientations. This is exactly what happened in the case of the supreme council’s decision to stop publishing about the issue of hospital 57357, as the law gives this right to the Council with absolute discretion in defining what are the press or media materials which represent (breaching of the principles of the profession and its ethics) or causing (harm to national security). These are the broad terms of which there is no clear and specific definition in the Egyptian laws. The council considered Children’s Cancer Hospital 57375 a major medical edifice, hence criticizing and doubting it harm the interests of the country. Accordingly it decided to stop publication about the case completely until the completion of the investigations of the Ministerial Committee.

Does this mean that the Supreme Council for Media Regulation has the right to stop publication in a case being discussed by the public opinion; to confiscate what will come out through all media outlets in this regard?

Unfortunately this is subject to the debate concerning interpretations of the articles of the law. It is accepted that in order for the council to have the right to implement these articles, there must be a specific incident from a specific institution that constitutes a violation of the law, which requires a penalty. But the council’s resolution did not specify such an incident. The decision was general, targeting the press or media materials that have not yet been published, which may contain revealing facts to the public opinion, does not contain swearing or insults, and does not violate the principles and ethics of the profession.

This is confirmed by the sanctions’ regulation issued by the supreme council, which gives it the right in many places to decide to stop broadcasting a specific program or section/press page temporarily in the event of committing specific violations stipulated by the regulation. The regulation did not contain any text that would allow the supreme council to stop publishing or broadcasting the “content” in the press and media in general.

In other words, there is no penalty except for a particular act that the investigations have proven to be a violation, and no penalty or sanction may be imposed on existing “issues” or “campaigns” in the press or media. This undermines the legality of the council’s decision in one way or another.

Is it possible to appeal or challenge the Supreme Council’s decisions?

Article 18 (section 2) of the sanctions regulation issued by the Supreme Council stipulates:

  1. The Council may waive the penalty or part of it in the event that the violator submitted a petition, and the Council shall take into account the circumstances surrounding the violation, if any..

However, the decision of the Council was not a disciplinary sanction, as we explained earlier. The regulation did not specify how to make a petition or to complain against the decisions. It seems there is no administrative path to appeal against the decisions, especially since the council is the supreme administrative authority among the bodies responsible for organizing the press and media scene. There is no higher administrative body where complaints can be made.

As for the appeal, and since the resolution issued by the Supreme Council is an administrative decision, article 97 of the constitution states that: “Litigation is a safeguarded right guaranteed to all. The state shall bring together the litigating parties, and work towards speedy judgment in cases. It is forbidden to grant any act or administrative decision immunity from judicial oversight. Individuals may only be tried before their natural judge. Extraordinary courts are forbidden”. The appeal before the Administrative Court (the Council of State) is the means established by the constitution to adjudicate the legality of administrative decisions such as the resolution we are discussing, knowing that this route may take a long time, making the immediate importance of the appeal unavailable.

So, who has the right to appeal? AFTE believes that every citizen, journalist, media professional, press or media institution has the right to appeal, as the resolution is a violation of the right of the public and journalists to information enshrined in the Egyptian constitution (2014) and the Press Law No. 96 of the year 1996.

Is the public prosecution entitled to cancel the decision of the Supreme Council?

The attorney general’s letter was decisive concerning the Supreme Council’s gag order on publication about hospital 57357, which he considered “non-existent.” He called on the media not to pay attention to it, although the law clearly stated that the Council’s decisions can’t be cancelled expect in two ways:

The first is that the Council withdraws its decision, and the second, that the competent court (the Council of State) rules that the decision is illegal based on an appeal submitted to it.

Therefore, the Supreme Council’s resolution remains in force until that happens. The attorney general’s letter and his decision to summon the Council’s head, Makram Mohammed Ahmed, before the Supreme State Security Prosecution cannot be considered as a cancellation of the Council’s gag order on the hospital crisis.

AFTE asserts that the only legal means to cancel the Supreme Council’s decision is to file a lawsuit to cancel the decision before the administrative court of the State Council, which is considered a disputation of the decision and not of the entity or person who made the decision. The court then considers the legality of the decision and its compatibility with the law.

Is the Public Prosecution entitled to refer the head of the “Supreme Council” to investigations “in his capacity” before the Supreme State Security Prosecution?

According to the law, the head of the Supreme Council for Media Regulation may not be held accountable in his capacity before any administrative investigation body. The attorney general is not entitled to interrogate the head of the Council because he exercised his authority, even if interpret or apply a legal text wrongly. It is not possible to understand his appearance before the Supreme State Security Prosecution in this case except by way of inference and to determine whether there has been an infringement by the Supreme Media Council and its President on the powers of the Public Prosecution.

It is worth mentioning that there is a great inconsistency over the reason why the attorney general summoned Makram before the Supreme State Security Prosecution. Is it to investigate his gag order? Because it represents an infringement on the powers of the Public Prosecution, as stated in the attorney general’s statement, or is it only for inference, according to what Makram and the head of the journalist syndicate Abdul Mohsen Salma said after the first attended a 13 minutes session before the attorney general during which the prosecution did not file any charges against Makram.

This inconsistency is confirmed by the attorney general’s gag order on the investigations with the head of the Supreme Council; if his appearance is only for inference, so why is there a gag order?  And if it is for investigation, what is the decision of the prosecution?

In any case, the gag order was not complied with. The head of the Journalists Syndicate issued a statement on the nature of the session held with the head of the supreme council; also various media outlets discussed Makram’s statements after the session ended. Meanwhile, the Public Prosecutor’s Office did not issue a statement clarifying what happened in the session and the outcome of the case.

Does the decision of the “Supreme Council” conflict with the right of the public to know and the right of journalists and media professionals to access transfer and circulate information?

It seems that the Supreme Council’s desire to strengthen its regulatory powers over the press and media has made it ignore the dividing line between the discretionary authority of the Council to issue measures to prevent publication in a public opinion case and the right of the public to know, which is inseparable from their right to express their opinions with all the ways they deem appropriate; the rights enshrined in the Egyptian constitution (2014) in its articles (65,68).

The journalist derives the right to obtain and disseminate information from the citizen’s right to know. The press represents the bridge between the public and the events and incidents taking place in different places. Part of the Egyptian jurisprudence defines the journalist’s right to information as “enabling journalists from sources of news, information and statistics. Enabling journalists to inquire about them, and access all official documents that are not banned, without any obstacles between them and the freedom of circulation of information or obstacles preventing equal opportunities between journalists and colleagues in all newspapers”.

The press in Egypt is regulated by Law No. 96 of 1996, known as the Regulation of the Press Law (currently being amended in Parliament), which protects in its articles (7,8)  respectively the right of the journalist to obtain information, as well as his right to protect his sources of information.

However, the Supreme Council for Media Regulation ignored all these safeguards and established itself as a commissioner of information, specifying what could be published and what should be prevented. In the absence of a law regulating the right to information until today, despite the adoption of this right by the constitution in article (68), the Council decided to assume this role, and yet the reasons for the gag order were inadequate, insufficient and flawed. And despite its claim to preserve the country’s supreme interest, the gag order is detrimental to the public interest. We are facing an issue where there are suspicions of financial corruption involving funds donated by citizens to one of the charitable medical edifices. This is under investigation by a ministerial committee and not by the Public Prosecution or the judiciary, which requires, in certain cases and according to certain rules, to keep the information confidential. Therefore, the public’s right to know all that is going on in the investigations is necessary to achieve transparency and accountability, and concealing it by preventing it from publishing may be one aspect of corruption in itself.

Interestingly, the Supreme Council for Media formed a committee that completed drafting a law on free circulation of information in order to present it to the Parliament for approval. However, the Council made no effort before issuing its decision to suspend publication to review the guidelines established by Article 19 organization concerning freedom of information, which were adopted by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his 2000 report. The 8th principle of the guidelines stipulated that all national laws and administrative decisions should be interpreted in the light of the legislation on the free circulation of information. In the event they are not compatible, all legislations and decisions issued before the Freedom of Information Act must be subjected to the principles contained in this legislation, both related to  disclosure and exceptions.

Since the disclosure, access, transfer and circulation of information is the origin according to the constitutional provision; prevention is the exception. The fourth principle, entitled “Limited scope of exceptions”, states that governmental entities must respond to all individual requests for information, unless the entity decided that such information falls within the “limited scope of exceptions”. Disclosure of information can only be refused if the government entity proves that the information required complies with the criterion called (strict tripartite testing), which includes the following:

  • Disclosure of information must be related to the legitimate purpose mentioned in the law.
  • Disclosure of information is harmful to the purpose of keeping this information confidential.
  • The damage caused by disclosure exceeds the general interest that may be achieved from it.

If we apply the tripartite test on the  Supreme Council’s decision to prevent publication in the case of hospital (57357)  -which aims primarily to protect the work of the ministerial inquiry committee so as not to be affected by what is published in this regard as confirmed by the Council in its explanatory letter to the Attorney General- we find that the disclosure of all the details of the work of the investigation committee, as well as allowing all parties to discuss the subject and disclose the information and facts -especially journalists and media professionals- is not detrimental to the purpose of keeping this information confidential, and the purpose here is to protect the donation process for charitable foundations and prevent potential damage from publication, which is the reluctance of people to donate. On the contrary this disclosure gives confidence to the public that there are clear and strict policies for accountability and transparency. Also the public interest here requires disclosure of all details to ascertain the suspicions of financial corruption hovering around the hospital, and here the prohibition is detrimental to the public interest, contrary to the reasoning of the resolution.

Is this the first time that the “Supreme Council” issues a gag order?

This was not the first time that the Supreme Council for Media issued a gag order on a case, although there are some differences. On 30 September last year, the Supreme Council for Media Regulation issued a gag order on the promotion or publication of gay slogans, stressing that “homosexuality is a disease, a shame and it is better to cover it up, not to promote it; until it is treated”. It pointed out that this comes in order to maintain public ethics and respect for the values ​​of society and correct beliefs, explaining that the promotion of these slogans is a corruption of society that should be punishable. The Council’s decision stated that “the appearance of homosexuals in any of the print, audio and visual media shall be prohibited; it shall only be an acknowledgment of the mistake of this conduct and repentance”.

This decision raised great controversy at the time, but it is striking that the Public Prosecution did not comment on the resolution one way or the other, which we consider –indirectly- a sign of its satisfaction of the resolution, recognition of its legality and the right of the Council in its issuance. !!

In this case, the Council prohibited the “promotion” of specific slogans based on the same flaws in the law and the same articles. The Council also banned a particular social group from appearing in the various media except with unacceptable conditions. Overlooking this incident allowed the Supreme Council to continue interpreting the law in a way that allows it to impose more of its supervisory powers on everything that come out to the public.

The result was the resolution under discussion. This indicates that the Council since its inception seeks to develop its legal tools that make it influential among the press and media community individuals and institutions; the latest resolution was no exception in the culture of the work of the Council.

Conclusion and recommendations

The Supreme Council’s decision was not legal; but the culture of dealing with the crisis by the attorney general indicates that the case was just a dispute over the authorities and powers. In fact, this was not the most important issue raised by the crisis, the most important issue was the flaws in some articles of the law and a number of its texts, which the paper tried to refer to. Hence AFTE does not see any real will to change the law to protect the freedom of the press and information as well as the right of the public citizens, at the heart of them are journalists and media professionals, to access, transfer and circulate information without obstacles, especially since the law is being amended in the parliament now. The committee for media, culture and antiquities has already published

a proposal for the draft law, which is supposed to be discussed in the plenary session of the Parliament. However, the proposal has kept the same articles (2, 3, 26) with the same texts and numbers, without modification or definition of standards. AFTE warns that this is a gateway to the continuation of the crisis and the possibility of its replication in one way or another.

Accordingly, AFTE recommends that all concerned bodies, on top of which the parliament, which previously approved the law on Institutional Organization of the Press and the Media (Law 92 for the year 2016), as well as the Council of State, establish a clear and specific legal definition of the following:

Standards and ethics of the profession, and the requirements of national security, because they have become mere slogans exploited by many in the imposition of more uncontrolled censorship, which often contravenes constitutional texts and legal rules.

The association also recommends the cancellation of the third item of article 26 of the Law on the Institutional Organization of the Press and the Media, which gives the Supreme Council for Media Regulation the right to prohibit broadcasting or publication of any material temporarily or permanently. As the article gives the Council absolute discretion to control the flow of information in clear violation of the right of citizens and journalists to access information concerning public affairs, under policies that tend to withhold and monopolize the official narrative of events.

Finally, the association recommends that all texts in the sanctions regulation be reviewed, which include cases in which the Council has the right to prohibit television broadcasts of a specific program or to stop a particular page / section for a number of offenses, some of which could have several interpretations.  This is especially important since the first year for the Supreme Council for Media Organization is a clear indication of its strong desire to impose its control over everything that comes out to citizens through the various media.

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