October 8, 2012

Dear Members of the Constituent Assembly,

Human Rights Watch, an independent nongovernmental organization, is writing to urge you to amend those articles of the draft constitution made public that conflict with Egypt’s obligations under international human rights treaties, including those that protect freedom of expression, women’s rights, the principle of non-discrimination, and freedom of thought and conscience. Human Rights Watch reviewed the September 27 draft and has closely followed public announcements from assembly members and subsequent changes to individual provisions made public on the official assembly website.

The draft constitution upholds many key civil, political, social, economic, and cultural rights. These include articles on the right not to be detained arbitrarily; the right to bodily integrity; freedom to create political parties; freedom of movement; freedom to assemble and associate; the right to citizenship; the rights of persons who have been detained; and the right to work, health, and education.

Other positive measures for human rights protection include the absence of a statutory limitation for attacks on rights and freedoms protected in the constitution ; the state’s commitment to providing reparation to victims of violations ( article 42); and the guarantee of independence of the judiciary (article 44). Particularly noteworthy is article 47 of the draft which stipulates that: “no act or administrative decision shall be protected from judicial oversight. No one shall be tried except before a natural judge; the creation of exceptional courts is prohibited and no civilian shall be tried before the military justice system.” This provision could put an end to the abusive Mubarak era’s unfair trials and reflects the position under international human rights law. To further protect civilians from trial before military courts, the military justice system should not be included in the chapter on judicial authority but should remain part of the executive branch.

None of the sections that have been made public so far address the issue of whether or not international human rights treaties that have been duly ratified by Egypt (including UN and African treaties and protocols) apply directly as law in Egypt or if they have supremacy over domestic law. Such treaties should have clear supremacy over domestic law since the Vienna Convention on the Law of Treaties, ratified by Egypt, sets out in article 27 that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”This clause strengthens the basis for amending many domestic laws that restrict rights, such as those that give wide discretion to authorities to prohibit public gatherings and restrict travel by individuals, as well as laws that criminalize peaceful speech on vague grounds that include disturbing the “public order” or offending “public morals.”

Accordingly, Human Rights Watch recommends including a general clause in the constitution directly incorporating into Egyptian law international treaties ratified by Egypt, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW ) and the African Charter on Human and People’s Rights.

The draft constitution also contains several articles that are incompatible with Egypt’s obligations under international human rights treaties. In order to safeguard human rights in the constitution and eliminate the threats to those rights in the draft currently before the Constituent Assembly, Human Rights Watch urges the assembly to review the following provisions in light of international human rights law.

  • Torture

Article 5 of the draft Constitution states that “anyone who is arrested or imprisoned or deprived of liberty in any way, shall be treated in a manner to protect human dignity, and shall not be intimidated or coerced or harmed physically or psychologically, detention or imprisonment can only take place in places that are humane and healthy and subject to judicial oversight. Those responsible for breach of the previous shall be punished according to law. Any speech proven to have been extracted under the influence of any of the preceding or under threat thereof shall be disregarded and not relied upon.”

Both Egyptian and international law clearly prohibit torture, although the definition in Article 126 of the Egyptian penal code falls short of the international definition by limiting torture to physical torture and to situations where victims have been charged. Article 5 of the draft constitution fails to even meet this limited standard under Egyptian law. “Physical or psychological harm” is a lower factual standard than torture.

Accordingly, Human Rights Watch strongly urges members of the Constituent Assembly to fully criminalize torture and cruel, inhuman, and degrading treatment in line with the Convention Against Torture and other international law.

  • Freedom of Religion

Article 8 of the draft states that “freedom of religion is absolute, and practices shall be conducted in accordance with public order. The state shall ensure freedom to establish places of worship for adherents of Abrahamic religions in accordance with the law.”

This provision is discriminatory and inconsistent with international law because it would exclude the rights of members of non-Abrahamic religions, such as the Bahai in Egypt, from the right to construct places of worship. Article 18 of the ICCPR provides that the right to freedom of religion, thought, and conscience encompasses the freedom to change religion or belief and to practice in public and in private any religion through worship, observance, and customs or to practice no religion.

In addition, members of the assembly are still negotiating a provision which could amount to a serious regression in the protection of freedom of religion and freedom of expression. Article 9 of the September 17 draft states that “the divine being is protected and any criticism thereof is prohibited, as are the prophets of God and all of his messengers, the mothers of the faithful and the rightly guided caliphs.” This provision clearly conflicts with Egypt’s obligation to protect free speech since it does not meet the criteria of a legitimate limitation. This provision, which does not define what constitutes criticism, opens the door to laws that criminalize speech beyond the permissible limitations.

While international norms of freedom of expression allow governments to restrict speech that advocates religious or racial hatred and thereby directly incites violence, hostility or discrimination, they do not allow restrictions on the sole basis that members of one or more social, national, or confessional group deems the speech to be offensive to their beliefs. To create a constitutional principle that criticism of the divine is prohibited would likely pave the way to punishing peaceful expression of dissenting or nonconformist views on religion.

In addition, this provision would also clearly discriminate against groups who hold different beliefs or interpretations regarding certain key figures in Islam, including the Shia of Egypt who are practicing Muslims who hold different interpretations regarding the “rightly guided caliphs”.

Human Rights Watch strongly urges members of the Constituent Assembly not to include this provision in the final draft.

  • Freedom of Expression

Article 9 of the draft stipulates that “freedom of thought and opinion are guaranteed, and everyone has the right to freedom of expression of ideas and opinions through speech or writing or photographing or other means of publications and expression.” Article 10 goes on to say that freedom of the press is guaranteed and censorship is prohibited, but then adds that media “cannot be warned or shut down except by court order. In times of war limited censorship can be applied as an exception.”

While Article 9 provides strong protection of freedom of expression, it does not include the right to receive and impart information. Article 19 of the ICCPR sets out the content of the right to freedom of expression and the permissible limitations to that right, i.e. for the protection of national security or public order, public health, or morals when provided by law and necessary and proportionate. The current draft does not spell out, define, or limit specific and exhaustive reasons when the media can be ‘shut down’. In 2006, Mubarak amended the Press Law to protect the media from closure via court order. This provision therefore amounts to a regression in the law.

Previous drafts had included article 12 which stipulated “there shall be no punishment of imprisonment in [publication] crimes.” Earlier version of the provision had included “except for what is related to the reputation of individuals or insulting them or defaming them or inciting to violence and discrimination.” Criminal defamation in Egypt’s penal codes is one of the biggest impediments to freedom of expression in Egypt and Human Rights Watch has frequently urged reform of these provisions used under Mubarak to stifle speech by decriminalizing expression.

Human Rights Watch recommends that the Constituent Assembly include a commitment to eliminate criminal penalties for speech that does not amount to incitement to violence.

  • Women’s Rights

Article 36 of the draft states that “the state shall take all measures to establish the equality of women and men in the areas of political, cultural, economic, and social life, as well as all other areas, insofar as this does not conflict with the rulings of Islamic Sharia. The state shall provide free motherhood and childhood services, shall provide women with healthcare, social and economic care and the right to inheritance, and with reconciling between her duties towards the family and her work in society. ”

As it stands, this article is not consistent with international human rights law and contradicts the provision in the draft constitution providing that “all citizens are equal before the law, equal in their rights and public duties, there shall be no discrimination between them on grounds of sex, origin, ethnicity, language, religion, belief, social status or disability.”

The choice of the term “rulings of Sharia” is particularly problematic. It is not clear why it should remain since there was a similar push by some members of the assembly for the inclusion of the identical phrase in article 2 and it was only after negotiations that agreement was reached to retain the term “principles of Sharia.” It even goes beyond the reservations Egypt entered to CEDAW upon ratification (articles 2, 9(2), 16 and 29).

Human Rights Watch recommends the Constituent Assembly delete the term “rulings of Sharia” to ensure a clear commitment by the state to gender equality in draft article 36.

  • Children’s Rights

Article 35 sets out the right of children to a name, basic nutrition, housing, and health service. The provision, however, fails to set out the definition of a child—that is anyone under the age of 18—as reflected in Egypt’s 2008 child law and international law. It also fails to protect children’s right to registration at birth and the right to acquire a nationality. These rights are enshrined in the Universal Declaration of Human Rights and the ICCPR, and remain gateways to the exercise of other rights.

The provision also fails to provide protection for children against discrimination and against all forms of physical, psychological, and sexual violence in all places, including at school and during situations of armed conflict.

Furthermore, the provision states that “child labor is prohibited until the age of mandatory education and in employment that does not suit their age.”This provision is not consistent with Egypt’s obligations under the Convention on the Rights of the Child, which requires state parties to protect children from economic exploitation, or with the Convention concerning Minimum Age for Admission to Employment, which requires ratifying states to set a minimum age for child labor in their domestic laws and states that the minimum age should be no younger than 15.

Human Rights Watch recommends that members of the Constituent Assembly include language prohibiting child labor below age 15, prohibiting labor that may be hazardous to a child’s health or safety below age 18, and protecting children from exploitative labor. Human Rights Watch further recommends that members of the Constituent Assembly include language that provides protection and guarantees equality for children of unknown parentage or born out of wedlock, since these children have been proven to be among the most at-risk populations, and to state that the “best interests of the child” will be paramount in all decisions pertaining to his or her welfare, since this standard remains a key element in guarantee in child rights under international law.

  • Forced Labour, Trafficking, and Slavery

Article 29 of the draft states that “slavery and forced labor are prohibited, the violation of women and children’s rights and sex trade are prohibited and the law criminalizes this.” An earlier draft from August 11 provided that “Forced labor, enslavement, the trafficking of women, children and organs, the sex trade are prohibited and the law criminalizes this.”

The replacement of the August 11 wording “the trafficking of women and children,” which is already fully criminalized under Egypt’s 2010 Law 64 on the Combat of Human Trafficking, with the vague term “violations” is of serious concern since it suggests an intention on the part of committee members to legalize certain forms of trafficking. Human trafficking is an international crime and should be fully defined as such in this provision on trafficking.

Human Rights Watch urges members of the Constituent Assembly to reinstate the language of the August 11 provision.

  • Privacy

In addition, the new constitution should contain a specific mention of the right to privacy, which encompasses protection against unwarranted social and state intrusion through the protection of the person, the family, the home, personal data and personal communication, as enshrined under article 17 of the International Covenant for Civil and Political Rights.

  • Freedom of Association

Article 18 provides that “citizens have the right to establish associations and political parties by notification, as long as they respect national sovereignty.” A previous draft had limited the right by stating “as long as the goals are legitimate.” Adding overly broad terms such as “the respect of national sovereignty” will allow for abuse of the content of the right itself. Under Mubarak, human rights organizations documenting and exposing torture were accused of violating national sovereignty. Any crime against sovereignty can be regulated through Egypt’s penal code and other specialized laws. The constitution should protect the right itself.

Human Rights Watch recommends that members of the Constituent Assembly ensure that any limitations placed upon the exercise of the rights of association and assembly must not have the effect of negating the essence of that right and must be “prescribed by law and … necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others” (articles 21 and 22 of the ICPPR).

  • Fair Trial

Article 46 sets out due process guarantees including the presumption of innocence but then goes on to say that while “every accused in a criminal case must have a lawyer to defend him”, “the law shall determine in which cases of misdemeanors the accused must have a lawyer.” Article 14 of the ICCPR sets out the right of the accused “to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing” for any crime.

Human Rights Watch recommends that the Constituent Assembly members extend the requirement that the accused have a lawyer to represent him to all trials.

  • Sources of Legislation

Article 2 of the draft mirrors article 2 in the 1971 constitution and states that “principles of Sharia are the main source of legislation.” Salafi members of the Constituent Assembly have pushed for the replacement of the term principles with “rulings” of Sharia, which refers to a more specific set of laws, including the hudud They instead proposed an additional provision, article 4, which would establish Al Azhar as the sole body authorized to interpret “all issues related to Sharia.” Article 4 would give a legislative vetting role to an unelected, unaccountable body with no recourse to judicial review.

Human Rights Watch recommends that the Constituent Assembly members exclude the proposed Article 4 from the final draft and instead append an explanatory note to define the terms of Article 2 on the sources of legislation.

 

We thank you for your time and attention.