Egypt: Don’t Enshrine Emergency Rule in Constitution

Proposed constitutional amendments approved by the Egyptian parliament on March 21 effectively remove basic protections against violations of Egyptians’ rights to privacy, individual freedom, security of person and home and due process, Human Rights Watch said today. Parliament overwhelmingly approved amendments to 34 articles of the constitution on Tuesday in a vote that closely followed party lines. Egyptian President Hosni Mubarak scheduled a referendum on the amendments for today, weeks ahead of the expected date. Opposition parties and the Muslim Brotherhood said they would boycott the referendum.

Last night, security forces arrested at least 13 activists on their way to a protest against the proposed amendments. Eyewitnesses and victims told Human Rights Watch that plainclothes officers supported by riot police surrounded two groups of activists and bloggers in downtown Cairo at around 7 p.m. The plainclothes officers kicked and punched activists, assaulted a number of female protesters, and confiscated memory cards from three foreign photojournalists’ digital cameras. Two of the 13 were subsequently released, but the authorities have not provided any information on where the remaining activists are being detained. A spokesman for the opposition al-Ghad (Tomorrow) Party today told Human Rights Watch that security forces surrounded their offices in Cairo, Alexandria, Kafr al-Shaikh, Buhaira and Port Said last night, and that authorities had detained six Ghad Party members.

Activists were protesting proposed changes to article 179 of the constitution that would have the effect of removing constitutional safeguards requiring the government to obtain judicial warrants before searching a citizen’s home, correspondence, telephone calls, and other communications, when the government deems activity being investigated is terrorist-related. In such cases the president would also be allowed to send cases to special “exceptional” courts or military tribunals, whose decisions may not be appealed, instead of the regular courts, thereby jeopardizing individuals’ fair trial rights. The amendments would also mean security forces would be authorized to exercise powers of arrest that could lead to arbitrary, and potentially indefinite, detentions.

“No referendum can legitimize these constitutional amendments, or bring them in compliance with Egypt’s international obligations,” said Sarah Leah Whitson, Middle East director at Human Rights Watch. “The right of Egyptians to be protected from arbitrary searches and seizures and the right to appeal judgments are basic human rights that the government can’t legislate away.”

While Egypt has a right and a responsibility to protect its citizens from violence and to prevent terrorist attacks, the Egyptian government has a decades-long record of abusing human rights in the name of combating terrorism, and of referring politically sensitive trials to exceptional courts. Human Rights Watch said the amendments to article 179 were particularly troubling in light of the overly broad definitions of terrorism in Egyptian law. For example, article 86(bis) of the Penal Code, part of antiterrorism legislation adopted in 1992, makes it an offence for any person to belong to, or possess and distribute publications of any group that calls for suspension of the constitution or laws or is considered to be “impairing the national unity or social peace.”

Egypt’s Emergency Law, in place without interruption since 1981, already suspends important constitutional protections of fundamental rights, but President Mubarak has repeatedly pledged to abolish the Emergency Law and to replace certain provisions with antiterrorism legislation. The proposed amendments to article 179 would allow this antiterrorism legislation to bypass constitutional guarantees of the rights to privacy and to due process.

“Shifting the exceptional powers that the Emergency Law grants the Executive into the constitution won’t make them more legitimate under international law,” said Whitson. “The proposed amendments to article 179 of Egypt’s constitution would eviscerate President Mubarak’s promises to repeal the Emergency Law.”

Several provisions of the constitution guarantee the right to freedom from arbitrary search and seizure and the privacy of the home and private communications. Article 41 of the constitution affirms:

flagrante delicto

Article 44 of the Egyptian constitution states that, “homes shall have their sanctity and they may not be entered or inspected except by a causal judicial warrant as prescribed by the law.” Article 45 states:

The law shall protect the inviolability of the private life of citizens. Correspondence, wires, telephone calls and other means of communication shall have their own sanctity and their secrecy shall be guaranteed. They may not be confiscated or monitored except by a causal judicial warrant and for a definite period and according to the provisions of the law.

Proposed amendments to article 179 of the constitution would effectively waive these guarantees in cases the government designates as terrorism-related, and could grant security forces unfettered authority to detain persons, search homes and monitor communications without a judicial warrant. They would further allow the president to refer any suspect to any court of his choosing, including exceptional or military courts.

As a state party to the International Covenant on Civil and Political Rights (ICCPR), which Egypt ratified in 1982, Egypt is obligated to ensure that everyone has the right to liberty and security of person. Article 9 states that, “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” As a party to the ICCPR, Egypt also has a legal obligation to ensure that, “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence” (article 17). The changes proposed by the amendments to article 179 of the Egyptian constitution violate both these obligations.

“Egyptian law enforcement officials have all the tools they need to combat the threat of terrorism without altering the constitution to undermine Egyptians’ basic rights to protection of their home, privacy, liberty, security and a fair trial,” Whitson said. “President Mubarak should propose new amendments that explicitly safeguard Egyptians’ fundamental rights.”

According to lawyers from the Hisham Mubarak Center, the Arabic Network for Human Rights Information, and the Nadim Center for Victims of Violence, among those detained on March 25 in Cairo were: