Draft Adopted Without Consensus Amid Political Crisis
(New York) – The final draft of a constitution approved on November 29, 2012, by Egypt’s 100-member constituent assembly protects some rights but undermines others. The constitution, approved in the midst of a political standoff between the president and the judiciary, provides for basic protections against arbitrary detention and torture and for some economic rights but fails to end military trials of civilians or to protect freedom of expression and religion.
The constitution drafting process has been extremely contentious, and a number of assembly members resigned in protest over what they said was the failure of the dominant Islamist factions to compromise on key issues, including the place of religion in affairs of state. The decision comes on the heels of President Mohamed Morsy’s controversial November 22 Constitutional Declaration immunizing his decrees from judicial review.
“The decision of constituent assembly leaders to move a flawed and contradictory draft to a vote is not the right way to guarantee fundamental rights or to promote respect for the rule of law,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “Rushing through a draft while serious concerns about key rights protections remain unaddressed will create huge problems down the road that won’t be easy to fix.”
Article 60 of the March 30 Constitutional Declaration issued by Egypt’s military rulers in March 2011 states that a referendum on the constitution shall take place 15 days after the constituent assembly approves a draft. Judges in numerous circuits around the country have gone on strike to protest Morsy’s Constitutional Declaration. It is not clear whether they will agree to supervise the referendum, as required by law.
Human Rights Watch wrote to the constituent assembly on October 8 outlining key concerns about various rights provisions based on a review of a September 27 draft of the constitution. There have been some improvements in the final draft, such as in the prohibition against torture and the deletion of other provisions incompatible with human rights law that would have unduly restricted free expression or the practice of religion, Human Rights Watch said.
Human Rights Watch has reviewed Chapter II of the final draft, entitled Rights and Freedoms, and followed the televised session in which the constituent assembly voted on each of these provisions. The rights chapter provides for strong protection against arbitrary detention in article 35 and torture and inhumane treatment in article 36, and for freedom of movement in article 42, privacy of communication in article 38, freedom of assembly in article 50, and freedom of association in article 51. But the latest draft, unlike the earlier version, defers to objections from the country’s military leadership and removes the clear prohibition on trials of civilians before military courts.
Key concerns include the following:
Protection of Rights
Article 81 states that no law may limit the essence of the rights and freedoms set out in the constitution, but goes on to say that, “These rights and freedoms shall be exercised insofar as they do not contradict the principles set out in the Chapter on State and Society in this constitution.” The provisions in that chapter include article 10, which states that, “The state and society shall commit to preserving the true nature of the Egyptian family,” and article 11, which states that, “The state shall protect ethics and morals and public order.” The language in both these provisions is overly broad, open to interpretation, and available to justify wide-ranging limitations on key rights, Human Rights Watch said. It appears to place the “true nature of the family” and morals and public orders above fundamental rights.
Freedom of Expression
Article 45 protects freedom of expression without stating what legitimate limitations are permissible and how to balance this right against article 31, which states that, “The individual person may not be insulted,” and article 44 prohibiting “the insulting of prophets.” Articles 31 and 44 are not legitimate limitations on freedom of expression under human rights law, and they would appear to make difficult, if not impossible, any meaningful reform to existing penal code provisions that criminalize “insult” and defamation, provisions frequently used in the past to prosecute critics of the government. Criminal prosecutions on charges of “insulting the president” or “insulting the judiciary” have increased since Morsy took office.
Freedom of Religion
Article 43 on freedom of religion limits the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. Previous drafts had provided for a general right to practice religion but limited the establishment of places of worship to adherents of these three Abrahamic religions. Article 43 discriminates against and excludes followers of other religions, including Egyptian Bahais. Under former President Hosni Mubarak, security forces would frequently arrest religious minorities including Shia, Ahmadis, Bahais, and Quranists because of their beliefs.
Military Trials of Civilians
The final draft fails to limit military trials of civilians, backtracking on language in the rights chapter in drafts as recently as November 11, article 75 of which stated that, “No civilian shall be tried before the military justice system.” Assembly members deleted this language after military justice officials formally objected. Article 198 of the final draft now provides that, “Civilians may not be tried before the military justice system except for crimes that harm the armed forces, and this shall be defined by law.” This leaves intact the military’s discretion to try civilians under the Code of Military Justice.
One positive development is that the final draft no longer includes what had been article 68 in earlier drafts on women’s rights, which stipulated that equality for women would be subject to conformity with rulings of Islamic law, a provision strongly promoted by Salafi members of the assembly. However, the draft no longer lists “sex” as one of the grounds for prohibiting discrimination, as no grounds are named. Article 30 now states that, “Citizens are equal before the law and equal in rights and obligations without discrimination,” without specifying whom this provision covers. Read together with article 10, the failure to specify discrimination on the grounds of gender becomes problematic, Human Rights Watch said. Article 10 says:
The state shall provide free motherhood and childhood services and shall balance between a woman’s obligations toward the family and public work. The state shall provide for special care and protection for single mothers, divorced women and widows.
The state’s role should be confined to ensuring equality and non-discrimination, without interfering with a woman’s choices about her life, family, and profession or to justify discrimination on that basis, Human Rights Watch said. In addition, language prohibiting trafficking of women in a previous draft has been excluded from the final draft.
Status of International Obligations
Article 145 states that the president shall sign treaties and that they must be ratified by the upper and lower houses of parliament, and goes on to say that, “No international treaty that contradicts the provisions of this constitution shall be signed.” Human Rights Watch had urged members of the Assembly to include a provision directly incorporating human rights as defined by international treaties ratified by Egypt into Egyptian law to strengthen the basis for amending many domestic laws that restrict rights. In January, Human Rights Watch published a report urging parliament to amend many repressive laws, saying that reforming these laws should be a legislative priority.