While there are some similarities between Egypt’s recent protest law (sometimes called the demonstrations law) (see text in English translation and Arabic original) and laws of the United States, England, France, and Switzerland (cited by some Egyptian officials as having been studied as models), there are also fundamental differences, much like several vehicles that all look like automobiles, but the Egypt model lacks brakes.
While the laws of the other countries surveyed all contain limiting language regarding the degree of threat to public safety or order required to trigger police authorization to disperse or restrict political assemblies, such limiting language is omitted in Egypt’s statute. Its defect is that it goes too far with too little restraint, such as in authorizing the use of force up to and including firing birdshot (with sometimes lethal effect) to disperse non-violent sit-in demonstrators for no other reason than that they refuse to leave when ordered to do so.
Because virtually every substantial gathering of people in a public setting presents at least some degree of security risk, and virtually every parade or protest march on a public street interferes with the flow of traffic to some extent, authorization in the protest law for police to disperse any public assembly if it presents any degree of security risk or potential to interfere with traffic amounts to authorization to prohibit virtually all public protest demonstrations or political gatherings, making exercise of the freedom of assembly a matter of police discretion. Even the content of political speech is subject to police scrutiny in Egypt’s law, which requires advance notification of slogans to be used in protest demonstrations.
Potentially most troubling in the context of election campaigns is the express application of Egypt’s freedom of assembly law to even small groups of as few as 10 voters who gather in a public location (even a community room in a public library) for the purpose of discussing the selection of or listening to candidates for public office. Under Egypt’s law, the failure of organizers of such a political gathering to notify the police 24 hours in advance regarding the meeting and its purpose and slogans to be used would constitute a crime punishable by a minimum fine equivalent to over $1400.
Ultimately, however, it is not the law itself that is most telling, but the manner of its application. Even if authorized by the protest law to do so, the police are not required to suppress public protest activity posing no substantial threat to public safety or order. In both substance and political context, however, Egypt’s protest law appears to have been drafted instrumentally to authorize police suppression of virtually all public protest and political activity by opposition groups.
Surface Imitation Covers Internal Contrasts
Some Egyptian officials have claimed that the laws of the United States and countries such as England, France, and Switzerland were studied as models during the drafting of Egypt’s new demonstrations law. This analysis compares and contrasts those countries’ laws with that of Egypt, and concludes that while similarities do exist between Egypt’s law and those cited by Egyptian officials, in some fundamental respects the similarity is only superficial.
The “First Amendment Assemblies” law of the District of Columbia serves as one of the best models regarding the U.S. approach to regulating political and other public assemblies. Appended is a chart comparing that law and its implementing regulations with Egypt’s new demonstrations law. When compared side-by-side, the contrast is striking. The thrust of the District of Columbia law is to promote cooperation and pre-planning between event organizers and the police in order to strike a balance of interests maximizing the exercise of freedoms of assembly and speech by demonstrators while also avoiding an unreasonable degree of interference with other interests of the general public. The balance is weighted toward the free exercise of the right of assembly. Egypt’s law, in contrast, takes a more thumbs-up or thumbs-down approach, seemingly assuming an adversarial relationship between protesters and police, and allowing public assembly for protest activity only to the extent allowed by the police. The balance in authorizing police intervention is weighted more toward suppression than expression.
Comparing Egypt’s Law with Purported Models
The laws of England, France, the Canton of Geneva, and the District of Columbia all require advance notice to the police of planned protest assemblies and marches. The Geneva law even goes so far as to require prior authorization. But, even the controversial and highly restrictive Geneva law allows police authorities to require changes to demonstration plans only if the planned activity poses “disproportionate risks” to people or property. Egypt’s law lacks such qualifying language, found in one form or another in all of the other laws surveyed, regarding the degree of security threat or public disruption required to trigger police authority to prohibit or restrict political protest demonstrations or marches.
Geneva, Switzerland. In March 2012, reportedly as a response to riots that took place in 2009 against the World Trade Organization, voters in the Swiss Canton of Geneva approved a law imposing severe restrictions on political protest demonstrations and similar activity, including a requirement of prior police authorization.
Maina Kiai, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association, warned before the vote that a number of provisions in the proposed law went too far. He said, for example, that if the law were enacted it would subject anyone who failed to request prior authorization to demonstrate or who disobeyed police prohibitions or restrictions would be liable to pay a fine of up to the equivalent of $100,000. He said, “Such an amount is disproportionate, and would have a chilling effect on the enjoyment of the rights to freedom of peaceful assembly and of expression.” Furthermore, the requirement of prior authorization would prevent people from holding spontaneous peaceful assemblies (such as in immediate response to a government action to which those assembled wish to protest).
Nevertheless, even Geneva’s highly restrictive law, police officials were given authority to suppress or prohibit proposed or ongoing protest activity only if deemed to pose “disproportionate risks” to people or property.
France. In France, where police in Paris have reported an average of eight protest assemblies per day, regulation of freedom of public protest or other political assemblies is based on an executive order promulgated in 1935, codified in 2012 in the Homeland Security Code, requiring notice to the police at least 3 and up to 15 days in advance (mirrored in Egypt’s law). The notice should specify the event’s purpose, place (including route, if applicable), date, time, and identity of event organizers. Police are authorized to prohibit a public assembly for which no notice has been given, but participation in a non-notification assembly is not in itself a crime.
Following notice, the police and protest demonstration organizers sign an agreement describing plans and conditions of the event, thereby establishing a responsibility on the organizers to comply with the terms of the agreement and on the police to protect the demonstration and demonstrators. In formulating that agreed plan, police or other authorities may prohibit or restrict protest activity only if the circumstances justify a fear of a “likely” and “serious” disturbance of public order, and in any event the nature and scope of restrictions must be “proportionate” and “necessary” to mitigate the threat. During an event, if agreed security measures prove to be insufficient, government officials are to confer with event organizers to attempt to agree on additional security measures or relocation of the event.
If those efforts fail, and if the unplanned circumstances are deemed to constitute a threat to public order, then the police are authorized to disperse the assembly. After two clear warnings by the police to disperse, failure to comply constitutes a crime carrying substantial potential penalties. Police use of force is authorized for self-defense during dispersal or other crowd control operations.
Reports state that in practice, few protest marches or public assemblies are prohibited. Some reports provide accounts of selective application and in some instances abuse of police authority. But, overall, public protest marches are a common feature of life in France, illustrating that the working relationship between police officials and protest organizers is more important in practice than the text of the law itself.
England and Wales. In England and Wales, the governing law is found in Public Order Act of 1986, which distinguishes between public processions and meetings. Written notice, usually at least 6 working days in advance, is to be given to the police of “any proposal to hold a public procession intended (a) to demonstrate support for or opposition to the views or actions of any person or body of persons, (b) to publicise a cause or campaign, or (c) to mark or commemorate an event, unless it is not reasonably practicable to give any advance notice of the procession.” “The notice must specify the date when it is intended to hold the procession, the time when it is intended to start it, its proposed route, and the name and address of the person (or of one of the persons) proposing to organise it.”
Restrictions may be imposed regarding the procession if the senior police officer reviewing the notice reasonably believes that (a) it may result in “serious” public disorder, “serious” damage to property or “serious” disruption to the life of the community, or (b) the purpose of the persons organizing it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do. In such cases the police may give directions imposing “such conditions as appear … necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.” Organizers who willfully disobey such a police order are subject to a fine and incarceration for up to three months.
If the top police official of a district (or City of London) believes that, because of particular circumstances existing in his or her district or the city at the time, no restrictions will be sufficient to prevent public processions from resulting in “serious” public disorder, he or she may apply to the district’s governing council for an order prohibiting the holding of all public processions or any class of public processions in the affected area for up to three months.
There is no corresponding obligation to provide advance notice to the police of any public assembly, but under the same triggering circumstances as applicable to processions the senior police officer in the jurisdiction has essentially the same authority to order restrictions on assemblies as on public processions, with the same potential penalties for willful violation by organizers and participants.
District of Columbia, United States. One of the best examples of a statute expressly recognizing and protecting the right of the people to peacefully assemble for political purposes, while also balancing and protecting the sometimes competing interests of the general public, is found in the District of Columbia Code subchapter governing “First Amendment Assemblies” (D.C. Code § 5-331.01, et seq.).
Because generalities liberated from text fail to capture the degree of contrast between the DC law and Egypt’s law, the relevant text of the two laws is compared with comments in the appended chart (link here) with respect to the following topics:
- Overall policy
- Applicability of Egypt’s law to public meetings held to discuss or listen to candidates for political office
- Egypt law’s prohibition of political gatherings at or near religious institutions
- Notice requirements
- Police permission
- Consequences of failure to notify police or obtain approval of assembly plan
- Content of notice/application for plan approval
- Time limits for approval/disapproval
- Grounds for disapproval or restriction
- Standards for on-scene enforcement/dispersal operations
- Documentation of arrests
- Public accountability: visible identification of individual police personnel
- Public accountability: official reporting
- Public accountability: news media access