{"id":33148,"date":"2022-12-31T14:07:48","date_gmt":"2022-12-31T12:07:48","guid":{"rendered":"https:\/\/afteegypt.org\/?p=33148"},"modified":"2023-01-11T14:46:01","modified_gmt":"2023-01-11T12:46:01","slug":"egyptian-judicial-rulings-and-freedom-of-information","status":"publish","type":"post","link":"https:\/\/afteegypt.org\/en\/research-en\/research-papers-en\/2022\/12\/31\/33148-afteegypt.html","title":{"rendered":"Egyptian judicial rulings and freedom of information"},"content":{"rendered":"

 <\/p>\n

Content<\/span><\/strong><\/p>\n

Methodology<\/strong><\/span><\/p>\n

Introduction<\/strong><\/span><\/p>\n

First: The Egyptian constitution and the right to freedom of information<\/strong><\/span><\/p>\n

Second: Judicial rulings before the constitutional text on freedom of information<\/strong><\/span><\/p>\n

Third: Judicial rulings after the constitutional text on freedom of information<\/strong><\/span><\/p>\n

Conclusion and recommendations<\/strong><\/span><\/p>\n

 <\/p>\n

Methodology<\/b><\/span><\/h3>\n

This paper relies on the legal analysis of judicial rulings related to the right to freedom of information and reviews the development of constitutional texts related to that right.<\/span><\/p>\n

Introduction<\/b><\/span><\/h3>\n

Freedom of information is of great importance to all citizens, with their various orientations and needs, as their interests are mainly linked to information and how to access it. The work of various groups is dependent on access to information. For instance, investors need to access all economic information, and researchers need to obtain official documents and statistics.<\/span><\/p>\n

In the event that official information is not made available, the judiciary becomes the last resort in order to implement the constitutional text on freedom of information. There is no doubt that obstructing the issuance of a law on access to information negatively affects the Egyptian judiciary\u2019s examination of legal cases. This is what this paper discusses in light of the constitutional development aimed to protect the right to freedom of information, and the legislative shortcomings related to the absence of a law on access to information.<\/span><\/p>\n

Since the Egyptian constitution obligates the legislator to issue a law regulating this right, it has become necessary to issue a comprehensive law on the right to access information.<\/span><\/p>\n

 <\/p>\n

First: The Egyptian constitution and the right to freedom of information<\/b><\/span><\/h3>\n

 <\/p>\n

\"\"<\/p>\n

Egypt\u2019s 1971 constitution did not expressly stipulate freedom of information, but it mentioned it in Article 47, which stated: \u201cFreedom of opinion is guaranteed, and every individual has the right to express his opinion and to disseminate it verbally, in writing, illustration or by other means within the limits of the law. Self-criticism and constructive criticism is a guarantee for the safety of the national structure.\u201d<\/span><\/p>\n

Although the forementioned text did not expressly stipulate freedom of information, it mentioned it through freedom of expression, which basically requires the exchange of opinions and ideas.<\/span><\/p>\n

However, the 1971 constitution explicitly guarantees the right to freedom of information for a specific group, namely journalists, as Article 210 stipulates: \u201cJournalists have the right to obtain news and information according to the regulations set by law. Their activities are not subject to any authority other than the law.\u201d<\/span><\/p>\n

When the 2012 constitution was promulgated, it stipulated the right of citizens to access information and to freely circulate it, as Article 47 stipulated: \u201cAccess to information, data, statistics and documents, their disclosure and circulation, is a right guaranteed by the state to all citizens, provided that this does not violate the sanctity of private life or the rights of others, and that it does not conflict with national security. The law shall organize the rules for filing and archiving public documents, the means to access information, appeals against a refusal to disclose information, and the consequent accountability for refusing to disclose information.\u201d<\/span><\/p>\n

The constitutional text on the right to freedom of information underwent another development in the amendments introduced to the constitution in 2014, as Article 68 of it stipulated: \u201cInformation, data, statistics and official documents are owned by the people. Disclosure thereof from various sources is a right guaranteed by the state to all citizens. The state shall provide and make them available to citizens with transparency. The law shall organize rules for obtaining such, rules of availability and confidentiality, rules for depositing and preserving such, and lodging complaints against refusals to grant access thereto. The law shall specify penalties for withholding information or deliberately providing false information. State institutions shall deposit official documents with the National Library and Archives once they are no longer in use. They shall also protect them, secure them from loss or damage, and restore and digitize them using all modern means and tools, as per the law.\u201d<\/span><\/p>\n

The current constitution provides for a set of important points that were not included in the 2012 constitution. These include the following:<\/span><\/p>\n

    \n
  • Information and data are owned by the people and not the entity that keeps them.<\/span><\/li>\n
  • The state is obliged to disclose information without restriction or condition, and even impose a penalty in the event of refusal to provide it to those who request it.<\/span><\/li>\n
  • State institutions are obliged to deposit official documents with the National Library and Archives.<\/span><\/li>\n
  • The state is obliged to issue a law to regulate this right.<\/span><\/li>\n<\/ul>\n

    Therefore, it is necessary to issue a law to regulate the right to freedom of information in accordance with the constitution.<\/span><\/p>\n

     <\/p>\n

    Second: Judicial rulings before the constitutional text on freedom of information<\/b><\/span><\/h3>\n

     <\/p>\n

    \"\"<\/p>\n

    The judiciary is responsible for adjudicating all disputes and crimes brought before it, according to the jurisdiction of each court, including ordinary courts, State Council courts, and the Supreme Constitutional Court. Litigation is a constitutional right guaranteed to all citizens and residents in the country. So, one may resort to the judiciary in matters related to the availability and circulation of information.<\/span><\/p>\n

    Since the 1971 constitution did not explicitly stipulate the right to access information and Egypt has no law regulating it, the judiciary has no clear understanding of this right, thus resulting in the scarcity of judicial precedents regarding access to information. However, some court rulings were based on the concept of access to information due to its interconnection with other constitutional rights.<\/span><\/p>\n

    The Supreme Constitutional Court stated that: \u201cWhat the constitution envisages by guaranteeing freedom of expression is that giving and receiving opinions and ideas shall not be limited by different regional boundaries, and shall not be confined to any confiscation through its own normal channels, but on the contrary, it intended to extend its advantages, multiply its resources and tools, and to overflow its well-springs, so as to be an open marketplace of ideas or free trade in ideas without any restriction that would constraint it or block its paths, because freedom of expression has its own targeted goals that it should hit, goals that it cannot be conceivable not to achieve, which include making the light of truth clear, with no falsehood mixed in its elements or slander that may discharge its content. This cannot be imagined to be achieved except through communication of views and opinions, and their interaction with each other, to stand clearly on what shall be considered truly false or right, and what shall be deemed risky or achieving benefits. The constitution does not aim to ensure freedom of expression to be a gateway to a general consensus, but it aimed to guarantee that right to be a means of a plurality of opinions based on the neutrality of information so that the light of truth will be a beacon that guides every action and each direction.\u201d<\/span><\/p>\n

    (Appeal No. 6 of Judicial Year 15 – Session 15\/4\/1995)<\/strong><\/p>\n

    The Administrative Judiciary Court acknowledged the right to access information despite the absence of a constitutional or legal text stipulating this right. The court said: \u201cThe right to communication, as a basic human need and the basis for every social citizen, proves the right to it for individuals and the societies they make up. It is a right that can only be established by the tools that achieve it. It means the right to benefit and participation for all individuals, groups and organizations, regardless of their social, economic or cultural level, and regardless of gender, language, religion or geographical location, to benefit from the means and services of communication and information resources in a balanced manner, and to achieve the greatest level of public participation in the communication process, so that the role of individuals and different social groups is not limited to merely receiving media or communication services and the internet, but rather extends to positive participation, in addition to the subsequent right of individuals to access information and know the experiences of others, the right to express and convey the truth to others, to communicate with them and hold discussions with them, and to influence social and political leaders in a way that serves individuals and group. Thus, whenever the dispute is related to this right, citizenship should be the basis of character and interest.\u201d<\/span><\/p>\n

    (Appeal No. 21855 of Judicial Year 65 dated 28 May 2011)<\/strong><\/p>\n

    The Administrative Judiciary Court issued another ruling, No. 1430 of Judicial Year 56, which is related to appealing against the National Telecom Regulatory Authority\u2019s decision that obligated companies that provide written messaging service via mobile phones to obtain a permit from the competent authorities. The appellant noted that the decision had violated freedom of opinion and expression, and freedom of information, and also violated Articles 45, 47, 48, 207, and 210 of the constitution, as well as international covenants related to freedom of information. In its ruling, the court said:<\/span><\/p>\n

      \n
    • \u201cThe right to communication is closely related to the Declaration of the Rights of Man and of the Citizen announced by the French Revolution in 1789, as Article 11 of the declaration states that \u201cthe free communication of ideas and of opinions is one of the most precious rights of man, and any citizen may therefore speak, write and publish freely\u201d. Also, the Universal Declaration of Human Rights endorsed by the General Assembly of the United Nations affirmed this right, as Article 19 thereof stated that \u201ceveryone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers\u201d. Moreover, the UN Resolution No. 59 issued on 14 November 1946 stipulated that \u201cfreedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated; freedom of information requires as an indispensable element the willingness and capacity to employ its privileges without abuse\u201d.\u201d<\/span><\/li>\n<\/ul>\n

      It is clear that the aforementioned ruling was based on international standards for the right to access information, although this right was not stipulated in the constitution. Therefore, the absence of legislation on the right to access information had an impact on judicial rulings in the period that followed the provision of that right in the constitution.<\/span><\/p>\n

       <\/p>\n

      Third: Judicial rulings after the constitutional text on freedom of information<\/b><\/span><\/h3>\n

      \"\"<\/p>\n

      After freedom of information was stipulated in the 2012 constitution, which was amended in 2014 and 2019, some judicial rulings were based on the constitutional text. However, the absence of a law regulating this right continues to affect judicial rulings, as the existence of a constitutional text alone is not sufficient to establish the right to access to information. Some judicial rulings acknowledged the right to access information based on the constitutional text. These include the following:\u00a0<\/span><\/p>\n

      A lawsuit was filed before the Administrative Judiciary Court demanding that Facebook and Twitter be blocked. The court turned the lawsuit down due to the lack of an administrative decision. However, in its judgment it established several important principles as follows:<\/span><\/p>\n

        \n
      • \u201cThe right to know is not a luxury right established only to seek knowledge without the adoption of a positive attitude that expresses the purpose of determining that right. Rather, it is closely related to another right, which is the right to information flow and circulation.\u201d<\/span><\/li>\n
      • \u201cFreedom of information includes the right to receive information and ideas and transfer them to others with no regard to borders, through all means of expression and media or any other means of transfer, dissemination and circulation of information, including telecommunication and internet services. Without the ability to receive information and enjoying the right to circulate it and share it with the public, freedom of opinion would be of no real meaning for society.\u201d<\/span><\/li>\n
      • The state is obliged to disseminate broadly information related to public interest in order to ensure transparency and oversight on the performance of public authorities, and to respond to the just popular demands to change society for the better, something which the constitution was keen to guarantee in Article 68, which stipulated that information, data, statistics and official documents are owned by the people, and that the state is obliged to disclose them from its various sources and to make them available to citizens in accordance with the law regulating that. The constitution also stipulated that withholding information or giving false information is a punishable crime.<\/span><\/li>\n
      • The right to information flow and circulation is of a dual nature. In its first aspect, it imposes a negative obligation on the administrative authority to refrain from taking any legislative or administrative measures that would lead to preventing the free flow of news and information, both at home and abroad. Thus, the state shall refrain from imposing obstacles to the flow of information or permitting monopoly of information and preventing the dissemination of information except within the limits of maintaining public order.<\/span><\/li>\n<\/ul>\n

        The ruling imposed some legislative restrictions on freedom of information. These include propaganda for war, armed conflicts, hatred, racism, nationalism or religion, in accordance with the constitution and Article 20 of the International Covenant on Civil and Political Rights.<\/span><\/p>\n

        (The Administrative Judiciary Court – Judgment No. 55337 of Judicial Year 68 dated 31\/8\/2016)<\/strong><\/p>\n

        Supporting the right to freedom of information in light of the explicit provision of that right in the constitution, the Administrative Judiciary Court issued another ruling obligating the executive and legislative authorities to make information available. The court said in its ruling:<\/span><\/p>\n

          \n
        • \u201cThe constitution adopted the democratic system that is based on citizenship and the rule of law. It allowed the people \u2013 in their capacity as the source of power \u2013 to exercise and protect sovereignty. It guaranteed freedom of opinion and thought, freedom of expression, and freedom of the press, printing and publication, and prohibited censorship on newspapers and media in times other than the time of war or the declaration of general mobilization. It also obliged the state to guarantee the independence of press institutions and the media in a way that guarantees their impartiality and expression of all political and intellectual views, trends and social interests, and in a way that also guarantees equality and equal opportunities in addressing public opinion – all in the manner stipulated in Articles 1, 4, 65, 70, 71 and 72 of the constitution, which stipulates in Article 68 that: \u201cInformation, data, statistics and official documents are owned by the people. Disclosure thereof from various sources is a right guaranteed by the state to all citizens. The state shall provide and make them available to citizens with transparency. The law shall organize rules for obtaining such, rules of availability and confidentiality, rules for depositing and preserving such, and lodging complaints against refusals to grant access thereto. The law shall specify penalties for withholding information or deliberately providing false information.\u201d<\/span><\/li>\n
        • The constitution did not limit the principle of making information available to the executive authority, as it is a general principle to which all state authorities are subject. The constitution made publicity the basis for the work of the legislative and judicial authorities in order to involve citizens who have sovereignty in public affairs. It stipulates in Article 120 that the sessions of the House of Representatives shall be held in public and it permits \u2013 as an exception and in accordance with specific rules \u2013 the House to hold closed sessions. Article 187 of the constitution also stipulates that court sessions are public, unless, for reasons of public order or morals, the court deems them confidential, and in all cases the verdict shall be given in an open session. So, publicity is the basis while secrecy is the exception in the work of the three authorities.<\/span><\/li>\n<\/ul>\n

          These important judicial precedents acknowledged the right to freedom of information based on the constitution. Although this is sufficient to establish the availability of information in any judicial dispute, since the constitution is superior to other laws and is the source and reference for laws, the absence of legislation regulating the circulation of information and its availability hinders this right.<\/span><\/p>\n

          This is evident in appeal No. 16534 of Judicial Year 70 which was filed against the decision banning the broadcast of the sessions of the House of Representatives\u2019 first legislative term. The appellant argued that the ban violates the constitution, which stipulates in Article 68 the right to freedom of information and that making the sessions of the House of Representatives available allows citizens to know all the data and information discussed during the parliament sessions.<\/span><\/p>\n

          However, the Administrative Judiciary Court rejected the appeal and stated the following with regard to the right to access information:<\/span><\/p>\n

            \n
          • \u201cThe data, information, and statistics contained in the minutes of the parliament\u2019s sessions are owned by the people in accordance with Article 68 of the constitution, which guarantees the availability of information and official documents to citizens and entrusts the legislator with regulating the rules for obtaining them and making them available. However, no law has yet been issued to implement the provisions contained in that article.\u201d<\/span><\/li>\n<\/ul>\n

            This ruling makes it necessary to urgently issue a law to regulate access to information.<\/span><\/p>\n

             <\/p>\n

            Conclusion and recommendations<\/b><\/span><\/h3>\n

            So, it is important to issue a comprehensive law to regulate freedom of information, given the insufficiency of the constitutional text or the provision of a clear legal formula for it in some laws, such as the press law and the money market law. The scope of the application of this right is limited to the cases subject to those laws. If a comprehensive law is issued to allow everyone to access information, it will have a significant positive impact on relevant cases examined by courts.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

              Content Methodology Introduction First: The Egyptian constitution and the right to freedom of information Second: Judicial rulings before the constitutional text on freedom of information Third: Judicial rulings after the constitutional text on freedom of information Conclusion and recommendations   Methodology This paper relies on the legal analysis of judicial rulings related to the […]<\/p>\n","protected":false},"author":84,"featured_media":33149,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_lmt_disableupdate":"no","_lmt_disable":"","_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[972,970],"tags":[],"class_list":["post-33148","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legislative-analysis-en","category-research-papers-en"],"acf":[],"yoast_head":"\nEgyptian judicial rulings and freedom of information - 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