Article 78: Egypt's Institutionalized Attack on the Right to Access Foreign Funding

INTRODUCTIONIn January 2011, millions of Egyptians of all social, religious, and economic backgrounds converged on Tahrir Square, demanding the overthrow of former President Hosni Mubarak.1 Following weeks of protest, including violent clashes between revolutionaries and the police, Mubarak dissolved the government, ending his thirty years of repressive authoritarian rule in Egypt.2 Inspired by this wave of pro-democratic protests, many observers across the globe envisioned a new Egypt-one built upon democratic ideals such as freedom of the press and freedom of association.3 Instead, the new Egypt is replete with remnants of its authoritarian past. In particular, Egypt has cracked down significantly on the freedom of association and the right of individuals and associations to receive foreign funding.4In March 2014, more than five hundred supporters of President Morsi were sentenced to death in a three-day trial for their alleged involvement with violent activities during the protests.5 A few months later, several al-Jazeera journalists were sentenced to seven years in prison on charges of aiding terrorists and threatening national security.6 The attack on freedom of association and the right to receive foreign funding has also been codified by the Egyptian government.7 In September 2014, Egypt amended Article 78 of its criminal code through Presidential Decree, dramatically heightening the penalties for the receipt of foreign funding and expanding the scope of illegal activity.8 The right to receive foreign funding remains under attack in Egypt, where the government recently released a report entitled, "The Most Dangerous 6 International Organizations Operating in Egypt and the Names of Collaborators. "9 The report identifies non-governmental organizations (NGOs) that have received foreign funding and, as a result, threaten Egyptian national security.10 In July 2015, reports revealed that a judicial committee had started an investigation into the Hisham Mubarak Law Center, a prominent Egyptian human rights organization, regarding its receipt of foreign funds.11The attack on foreign funding is not limited to Egypt or the Middle East, but represents a great challenge throughout the international community. Hungary similarly initiated a crack down on the receipt of foreign funding, primarily by NGOs.12 Hungary's Prime Minister has stated, "We're not dealing with civil society members but paid political activists who are trying to help foreign interests here. "13 In September 2014, soon after the Prime Minister made tyranny-mubarak-only-dreamed-of-washington-should-stop-playing-the-fool-by-praisingcairos-commitment-to-democracy/. this statement, Hungarian police raided two NGOs responsible for distributing grants from the Norwegian government.14 Azerbaijan, Mexico, Pakistan, Russia, and Venezuela have similarly targeted NGOs by passing legislation restricting the flow of foreign funds into NGOs.15 This global trend, however, does not legitimize these attacks on the freedom of association and the ability to access foreign sources of contributions in Egypt.The amended provisions in Article 78 conflict with domestic and international protections governing the freedom of association and the right to receive foreign funding. First, Article 78 is inconsistent with Article 75 of the Egyptian Constitution, which confers the right to associate freely.16 Second, the amended Article 78 conflicts with several international treaties and conventions to which Egypt is a party, including the International Covenant on Civil and Political Rights (ICCPR). 17 Third, the provisions of Article 78 are problematic in light of the analysis undertaken by international courts examining to what extent the right to receive foreign funding and freedom of association may be restricted in the name of national security.18This Note argues that, in order to secure the rights that Egyptians demanded in Tahrir Square, NGOs operating within Egypt should pressure the government to decriminalize the receipt of foreign funds or, in the alternative, pursue judgments from international courts. …