Freedom of Association and Assembly / Protests, National Security, Political Expression
Maseko v. The Prime Minister of Swaziland
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The Egyptian Supreme Administrative Court overturned the decision of the first instance administrative court which had levied a EGP 540 million fine against former President Mubarak and both his Prime Minister and Interior Minister for imposing a complete suspension of mobile services on the 28th of January 2011 and a blanket shutdown of internet services on the same day and until the 2nd of February. The Court held that the shutdown order was consistent with the law and had the legitimate basis of maintaining national security and territorial integrity. The case was brought against former President Mohamed Hosni Mubarak, former Prime Minister Ahmed Nazif, former Minister of Interior Habib Al-Adly, and others for ordering the telecommunication operators to shutdown the entirety of mobile services and internet access, without notice, in violation of the Constitution and the law.
Under Mubarak’s regime, Egypt lived through an era of political corruption, human rights infringements, and social injustice. Police enforced a state of surveillance and repression throughout the country to silence voices opposing the regime and prisons became filled with political detainees. Media disinformation was prevalent, and the regime had full control over the parliament for years. Even the numerous judicial decisions related to election manipulation were not successful in preventing fraud in the 2010 parliamentary elections, which undermined the rule of law principle and the authority of the judiciary.
Thus, in light of these circumstances, Egyptians found this to be unendurable anymore and decided to break the silence by calling on social media for demonstrations on the 25th of January 2011 (National Police Day) in Tahrir Square and other sites in other governorates to express their aspirations for change, freedom, democracy and social justice in a peaceful and civilized manner, astonishing the whole world. The demonstrations continued over the days from January 25, 2011, until February 11, 2011, when Mubarak stepped down as president, leaving the Supreme Council of the Armed Forces in control.
On Friday, the 28th of January 2011, one of the significant days of the revolution, also known as the “Day of Anger”, Egyptians experienced a complete shutdown of all mobile services, including internet access, by the three telecommunication operators, namely Vodafone, Mobinil, and Etisalat, with no prior notice, in an effort to limit the extent of demonstrations. On that day, demonstrators were met by unprecedented violence from the police, hundreds died, and thousands of citizens were injured as a result of police violence, but eventually, the police withdrew in front of the public persistence, and the armed forces were called down to the street.
Although the suspension of mobile services lasted for one day, the internet shutdown extended beyond that until the 2nd of February. Later on, the telecommunication companies explained that the sudden shutdown was undertaken in compliance with the orders of the competent authorities rendered in accordance with the contracts between the companies and the government, which empowers the latter to issue such orders in case of national security threats.
The case was filed by Mohamed Abd Elal (Lawyer), Manal Tiby (Director of the Egyptian Center for Housing Rights), Alaa Mamdouh, and Mohamed Al-Etr against former President Mohamed Hosni Mubarak, former Prime Minister Ahmed Nazif, former Minister of Interior Habib Al-Adly, former Minister of Communications and Information Technology Tarek Kamel, Head of the National Communications Authority, Heads of the three telecommunication companies and Others.
The plaintiffs claimed that the shutdown iniquitously violated their constitutional rights, resulting in them suffering grave physical and moral damages. They stressed that mobile services have become a key technological means in facilitating the daily life of Egyptian citizens, especially considering the number of Egyptians who have mobile phones reached nearly sixty million people, and thus mobile phones have a great impact on the economic and social aspects of their life. Accordingly, and for the damage suffered by the citizens of Egypt, a number of the plaintiffs demanded that the defendants pay compensation which should be allocated to the establishment of a civil institution, to be managed by the plaintiffs, for the purpose of developing education, scientific and technological research in Egypt, while others demanded that the defendants pay compensation to the State Treasury.
The first instance court dismissed the defendants’ claim that the former lacked jurisdiction and imposed a fine only on the former regime figures totalling EGP 540 million, which was equivalent to nearly USD 90 million, divided as follows: former President Mubarak (EGP 200 million), former Minister of Interior Al-Adly (EGP 300 million), and former Prime Minister Nazif (EGP 40 million). The court in its decision emphasised the fact that “telecommunication and internet services are closely related to a set of fundamental rights and freedoms, such as “freedom of expression”, “the right to communicate”, “the right to privacy”, “the right to internet access”, “the right to know” and the related “right to information” and the interconnected rights: the “right to development” and the “right to life”. Therefore, restricting these services by cutting, banning, preventing, or throttling them is a violation of these rights and freedoms that adversely affects the legitimacy of the shutdown order.
The court noted further that although the government invoked national security as a reason for the shutdown order, it concealed the true motive behind such order which was the protection of the regime, not the State. The court eventually ruled that the shutdown order lacked legitimate legal basis, representing an abuse of power and a deviation from the public good, hence was in violation of the constitution and the law and constituted an infringement on freedom of expression, freedom of the press, the right to communication, the right to internet access, the right to privacy, the right to knowledge and the flow and circulation of information.
The defendants appealed the decision before the Supreme Administrative Court.
Presided by Judge Ahmed Abdelaziz Ibrahim Aboelazm, head of the Egyptian Council of State, the Supreme Administrative Court delivered a per curiam ruling.
The central issue before the Court was whether the government’s order to suspend all mobile services on the 28th of January 2011 and shutdown internet access all over the country between the same day and the 2nd of February was legitimate and consistent with the law.
The Court noted that the responsibility of administrative bodies arises if a fault occurred on the part of the administration when issuing an administrative decision, resulting in damage to third parties. Thus, a three-criterion accumulative test of fault, harm, and causality has to be fulfilled for the Court to recognise the responsibility of the administrative authorities.
The Court referred to Article 67 of Egypt Telecommunication Regulation Law No. 10 of 2003 as the legal basis on which the Egyptian Government issued the mobile services suspension and internet shutdown order. The Article empowers the competent authorities to “subject to their administration all Telecommunication Services and networks of any Operator or Service Provider and call operation and maintenance employees of such services and networks in case of natural or environmental disasters or during declared periods of general mobilization in accordance with the provisions of Law No. 87 of 1960 or any other cases concerning National Security”.
The Court did not recall or refer to the relevant Human Rights Articles of the Egyptian Constitution at any point in its reasoning. Nevertheless, the Court relied heavily on the decision of the Egyptian Court of Cassation number 655/85 in case number 1227/2011 in which the Cassation Court upheld the acquittal of Habib Al Adly, the former Interior Minister, who was accused of ordering telecommunication operators to cut off all means of communication on the 28th of January 2011. The Court stressed that the ruling of the Court of Cassation (Cass Court) proved beyond reasonable doubt that the reason based on which Mubarak’s regime decided to suspend all mobile services and internet shutdown had material and legal bases and was righteously driven by maintaining the public interest and national security.
The Court noted that the Cassation Court Decision underlined that the concept of national security is defined as “the comprehensive capacity of the state to protect its values and interests from internal and external threats, meaning that national security has political, economic, social, military, ideological and geographical dimensions, and each dimension has its own characteristics. Thus, the legality of the decision to cut off mobile services and internet access is only realised if one of these dimensions is involved”. And that the Cass Court considered in its decision several testimonies of public officials who confirmed that the suspension and shutdown order was justified and was imposed only due to threats posed to national security and sought to prevent riots and coordinated acts of sabotage and stop any organised movements. The testimonies provided different examples of these national security threats, such as “the breaking into prisons which was accompanied by the use of force, and with the participation of foreign terrorist elements and some criminally active Bedouin groups as well as the attacks on police stations”. They also attested that “a number of foreign elements were present in Tahrir Square among the demonstrators and that a Jewish American spy working for Mossad was arrested there and was eventually exchanged for 35 Egyptian prisoners in Israeli prisons. This is in addition to the smuggling of weapons from the Gaza Strip to Egypt with the aim of creating unrest within the country”.
Consequently, the Cass Court held that the national security ideological aspect was realized which required confronting these internal and external security threats. Therefore, a ministerial committee was formed to investigate and deal with these threats, and that the Committee did not object to the suspension and shutdown order which clearly proves that the order was intended to prevent a threat to national security. The Cass Court also relied on the testimony of the head of the Egyptian National Telecommunications Regulatory Authority who confirmed the legality of the suspension and shutdown order based on Article 67 of the Telecommunication Law, stating that “the world witnessed similar suspension and shutdown orders, and no one was prosecuted for this”.
The Supreme Administrative Court agreed with the Cass Court and reiterated that the disturbing events surrounding the January revolution represented internal and external forces seeking to “compromise public order, national unity, and social peace” and thus constituted a legitimate basis for this order. The Court also noted that these forces aimed at “achieving the ambitions of some regional powers, undermining the State authority, spreading chaos, and hindering the State’s military strategic balance, which would adversely affect the capacity of the State to maintain its sovereignty and territorial integrity”. And accordingly, it was imperative to prioritise the public interest over individual and private interests.
The Court concluded that taking everything into account, it is evident that the “fault” criterion of the three-criterion accumulative test was not fulfilled, hence the suspension and shutdown order had a legitimate basis and was in accordance with the law.
Having considered all this, the Court annulled the 1st instance court decision, cancelling the fine imposed on Mubarak, Al Adly, and Nazif.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the Court in this case held that the suspension and shutdown decision had the legitimate aim of protecting national security, it disregarded the conclusion the 1st instance court reached that the true motive behind this decision was to “strategically 1) paralyse and disperse the demonstrations, 2) prevent them from communicating and expressing their peaceful demands, 3) cut off all means of rescue and access to ambulances to transfer those who were wounded or killed to the hospitals, and 4) enable the thugs to attack the demonstrators”. This conclusion was supported by various reports from human rights organisations and national commissions of inquiry.
Also, the Court erred by agreeing with the defendants’ argument that the suspension and shutdown order preserved national security as the facts proved otherwise since the alleged internal and external forces successfully managed to break into prisons and release their members and police stations were attacked and some were destroyed or set on fire which left no room but for the Egyptian armed forces to take over the protection of internal security. On the other hand, the peaceful demonstrators and even those who did not even leave their homes were the ones that suffered from that Order when such a full suspension and a blanket shutdown was coupled with the police withdrawal from the streets, surrendering its main obligation to maintain public order and safety.
The Egyptian economy suffered severe losses due to the suspension and shutdown order which was estimated by the Organisation for Economic Co-operation and Development to be nearly $90 million.
In all respects, this decision is a clear shift away not only from the internationally recognised human rights standards and the justifiable limitations laid out by the different international human rights instruments but also from the fundamental human rights norms stipulated in the Egyptian Constitution.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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