egypt constitution

7/30/2019 Egypt Constitution

1/6

Egypt: Post-Revolution Constitution - Universal Human Rights Standards Set Aside

On Saturday 15th 2012, Egyptians are invited to vote in a nationwide referendum on the draft

Constitution adopted by the Constituent Assembly on 29th of November 2012, and approved by theEgyptian President, Mohamed Morsy on the 1st of December 2012. The draft constitution has been

widely rejected by human rights organizations as well as political opponents who called for the

referendum to be postponed, as there was no time for consultation or public dialogue.

This referendum comes at a time where the country witnessed deadly violence on Wednesday 5th of

December 2012, where at least 8 people have died as a result of clashes between opponents andsupporters of the President1. According to Article 225 of the draft constitution, only a simple majority

of the valid votes is required for the constitution to enter into force. There is a risk of violence in the

aftermath of the announcement of the results of the referendum, given the small margin stipulated forthe constitution to pass, in an already highly polarized situation.

Protesters have been taking to the streets in several cities rejecting the constitution and demanding that

the constitution referendum be postponed, and the constituent assembly be reformed so as to berepresentative of all sectors of Egyptian society. At the same time, the Muslim Brotherhood, and its

political arm, the Freedom and Justice Party (FJP) alongside the Salafi party Al-Nour, amongst other

Islamists forces have been protesting in support of President Morsy's decisions and the constitution,advocating for a yes vote.

The constitution itself fails to address the main aspirations of the Egyptian people and the 25 JanuaryRevolution as it falls short of providing guarantees for citizenship, equality, freedom, social justice and

human rights. In addition to the lack of provisions protecting human rights , there are no sufficient

guarantees for the independence of the judiciary, the separation of powers, and transparency. The draft

has also been criticized for maintaining too much power in the hands of the executive, and tailor-fittingthe legislative branches according the self-interest of the Muslim Brotherhood.

On December 9th, President Morsy issued a new constitutional declaration in which he canceled the 21November declaration. The new declaration provided that only the constitutional declarations are

immune from judicial oversight and that if the results of the upcoming referendum is No, then within

three months, the President will call for direct elections of the 100-member constituent assembly thatwill draft a new constitution within six months.

President Morsy also issued a new law granting powers of judicial arrest for the Egyptian military untilthe results of the referendum are announced. Article 3 of Law no. 107 states that military officers

should hand over those arrested to prosecution, without contravening the jurisdiction of the military

justice system. The International Federation for Human Rights (FIDH) recalls that at least 12,000

civilians were tried before military courts under the rule of the Supreme Council of the Armed Forces(SCAF).

This position paper stresses the highly problematic drafting process of the constitution in theConstituent Assembly and the main issues in the draft constitution on women's rights, civil, political,

economic and social rights, as well as the role of the judiciary. FIDH reminds of and commands

1 FIDH, Transition in the turmoil- Risk of civil conflict amid constitutional crisis, 6 December 2012,

http://www.fidh.org/Transition-in-the-turmoil-Risk-of-12557
http://www.fidh.org/Transition-in-the-turmoil-Risk-of-12557http://www.fidh.org/Transition-in-the-turmoil-Risk-of-12557


2/6

actions, including court actions, by its members and partners (The Egyptian Organization for Human

Rights, the Cairo Institute for Human Rights Studies, the Egyptian Initiative for Personal Rights and

the Human Rights Association for the Assistance of Prisoners) for the rule of law and human rights to

prevail in a highly volatile and dangerous context.

On the Constituent Assembly

Egypt's first Constituent Assembly, formed in March 2012 by the Islamist-led parliament has created

major controversy across the country due to the preponderance of Islamist members (66 out of 100) .

The first Constituent Assembly was then dissolved by the Supreme Administrative Court in April 2012because it included members of parliament. The court said that according to the March 2011

Constitutional Decree, MPs were responsible for electing the Constituent Assembly, but could not elect

themselves. An agreement to form a more balanced assembly was reached on 7 June 2012. The secondAssembly, which also includes parliamentarians, has been given a second chance after the Supreme

Administrative Court postponed a decision on dissolving it to September 4 but then referred the lawsuit

to the High Constitutional Court.

Human rights organizations have raised their concerns over the composition of the Constituent

Assembly as its members do not represent all sectors of the Egyptian population, including women,

despite President Mohamed Morsy's pledge to re-appoint a more representative Constituent Assembly.Furthermore, the decision-making process has been lacking transparency and proper participation from

the civil society and the wider Egyptian population. In July 2012, upon the request of the Constituent

Assembly, several local human rights organizations, including FIDH member organizations in Egypt,took part in a hearing. They subsequently released a statement exposing the lack of serious social

debate and the continuation of the same flawed political dialogue2.

The Constituent Assembly has faced harsh criticism lately as many of its members have resigned toprotest against the process of the constitution-writing and debate. The resigned members have claimed

that there is a lack of political will among the Islamists in the Assembly to reach any consensus, and a

lack of transparency in the decision making process. 21 members out of the 100 have withdrawn fromthe Constituent Assembly, including the representatives of the Church. They claim that the reasons

behind their withdrawal is that their recommendations and suggestions were not taken into account by

the head of the Assembly, Hossam El Ghariani, and that the majority Islamist members have dominatedthe discussions, and dismissed any attempt of dialogue with the secular members.

The Constitutional Declaration issued by President Morsy on November 21st 2012 had extended thedeadline for the Constituent Assembly to finish its work by two months; however, after the major

uproar the Declaration created amongst the opposition, Egyptians were shocked to see the Constituent

Assembly rush into voting on the constitution in one session until the early hours of the following

morning, despite the lack of consensus and ongoing discussions.

85 members, mostly from the Freedom and Justice Party (34 members), and the Salafi Al-Nour Party

(19members), voted on the constitution on Thursday 29th November 2012. The voting sessions werecriticized for being too hastily, as El-Ghariani insisted in several instances to pass articles without

2 Cairo Institute for Human Rights Studies (CIHRS), After hearing held by Constituent Assembly, rights groups in Egypt

express fears about the lack of genuine inclusive debate on the post-revolutionary constitution, 24 July 2012,

http://www.cihrs.org/?p=3594&lang=en #
http://www.cihrs.org/?p=3594&lang=enhttp://www.cihrs.org/?p=3594&lang=en


3/6

taking into account the objections, or suggestions, so as to finish voting on the constitution by the end

of the session.

The Constituent Assembly was protected by President Morsy's November 21st decree as he gave thebody immunity from any judicial order to dissolve it, in anticipation that the Supreme Constitutional

Court would dissolve it in its December 2nd hearing. President Morsy withdrew the decree on 9th of

December 2012, by issuing a new one, which no longer stipulates that the assembly is immune; theSupreme Constitutional Court has suspended its work until further notice as a result of the sit-in

organized by protesters outside the Court on December 2nd (see further below).

On The Draft Constitution

While the draft constitution represents a considerable improvement from the 1971 constitution when itstates in Article 81 that no law that regulates the practice of the rights and freedoms shall include what

would constrain their essence, the following paragraph of the article provides for an all-catching

restriction by stating that such rights and freedoms shall be practiced in a manner not conflicting with

the principles pertaining to State and society included in Part I of this Constitution. This provision isindicative of the major loopholes in the draft constitution that open the door to yet another dictatorship

for Egypt.

On Women

The final draft constitution fails to ensure equality between men and women, and does not prohibit

discrimination based on gender. Women's rights organizations have lobbied extensively to includegender as a basis of discrimination in the constitution, and indeed their demands were met briefly as

the draft circulated on November 10 included gender, origin, or ethnicity, language, religion, belief,

opinion, social status and/or disability; however the final draft dismissed all these categories.

Secondly, the final draft constitution has regressed in enforcing equality between men and women vis-

a-vis the 1971 Constitution. Article 11 of the 1971 Constitution ensured women's equal status with

man in the fields of political, social, cultural, and economic life, while the final draft constitution iscompletely silent on equality between men and women, and resorts to mention women only in the

context of the family, and vaguely provides that the State will enable the reconciliation between the

duties of a woman toward her family and her work.

On Social Justice

One of the most essential demands of the revolution was social justice as Egyptians chanted across thestreets bread, freedom, and social justice. The final draft constitution fails to meet the aspirations of

these demands on several accounts.

First, one of the demands that have been raised by activists for years is to enforce a minimum andmaximum wage to address the major social injustices that have gripped the country over the last

decades. Article 14 of the draft constitution fails to provide a standard relation between the minimum

and maximum wage, and provides exemptions from maximum wages for civil servants.

Secondly, doctors and medical workers have been protesting and striking over the past two years, in

demand of a better health care system for Egyptians. They demanded that the state budget allocates atleast 15% for health care, as well as guarantees for the free treatment in all public hospitals. Yet, their


4/6

demands fell short as the constitution failed to set a percentage and instead the state would allocate a

sufficient percentage of the national revenue, and will only provide free health care to those who are

not able to afford it.

Thirdly, the rights to adequate housing, clean water and healthy food, are not fully guaranteed or

enshrined in the constitution. This comes as a great disappointment to millions of Egyptians living in

slums with no access to clean water or adequate housing. Article 68 is extremely vague leaving thestate without an obligation to address one of the most serious problems facing Egyptian citizens today.

On Child and Forced Labor

Despite Egypt's ratification of the 1957 Abolition of Forced Labour Convention and the 1930 Forced

Labour Convention, Article 64 states that there shall be no forced labor except in accordance with

law. While Article 2 of the 1930 Forced Labour Convention defines what the term forced orcompulsory labor shall not include, the constitution leaves the matter to the law.

Furthermore, Article 70 prohibits child labor only before passing the age of compulsory education, in

jobs that are not fit for a childs age; without defining which standards are not fit and for which age.This article comes in violation of Egypt's international obligations under the Convention of the Rights

of the Child.

On Freedom of Expression

Criminal prosecution for acts of expression has been a major repressive tool under the Mubarak regime,

and unfortunately these policies have continued under Morsy's office. Several political opponents have

been recently charged with insulting the president and insulting the judiciary; a tactic that wasexcessively used by the Mubarak regime. The draft constitution fails to protect citizens against these

tactics as insulting or showing contempt toward any human being shall be prohibited in Article 31.

Yet, this is not the only provision limiting freedom of expression, as article 44 prohibits any Insult orabuse of all religious messengers and prophets. There have been a number of reported cases of arrest

and trials of Egyptians who have been accused of defaming religion. The vague language of thisarticle sends worrisome signals as it could pave the way for a series of misuse of the law in order to

curtail freedom of expression. FIDH recalls that Alber Saber was sentenced to three yearsimprisonment on December 12th for insulting religion.

On Forced Eviction

The draft constitution fails to specifically prohibit forced eviction in Article 42..Recently, the military

has attempted to forcibly evict residents of the island Karasya on the basis of the military's claim thatthe land belongs to the military forces.

On Freedom of Religion

The final draft constitution fails to protect Egyptians of non-Abrahamic religions as Article 43

guarantees the establishment of places of worship for only three religions. Egyptian Baha'is have been

widely discriminated against during the Mubarak era due to their beliefs; yet the constitution fails toprotect and guarantee their rights.

On Freedom of Information


5/6

While article 47 guarantees the right to information, it leaves another exception to matters of national

security. The exemption of national security appears in numerous other articles, however none of the

provisions provide a standard or definition of national security, leaving the door open for abuse by the

state to curtail rights and freedoms. During Mubarak's era, the term national security was excessivelyused to crackdown on political opposition and human rights activists.

On Freedom of the Press

On December 4, in an unprecedented move, 12 newspapers went on strike in protest of a constitution

that terminates rights and restrains freedoms...No to dictatorship. Article 48 allows for the closure orconfiscation of media outlets by a court order. It also limits freedom of the press in matters of the

sanctity of the private lives of citizens and the requirements of national security.

Article 215 establishes a National Media Council mandated to regulate the affairs of radio, television,

and printed and digital press, among others.This was a demand by the media community since therevolution, and a draft was presented to the Constituent Assembly that provides detailed provisions

guaranteeing the independence of the council, and prohibition of its appointment by the executive

branch. However, these recommendations were dismissed by the Constituent Assembly, and instead,

the provision in the final draft remained silent of the procedures for appointing members of the council,

and its independence. There are rising fears amongst independent media towards the establishment ofyet another institution that curtails the freedoms of the press.

Furthermore, article 49 makes a distinction between print and visual media as it guarantees the right to

establish newspapers by notification, while the establishing of radio stations, television broadcastingand digital media is regulated by law.

On the Judiciary

While it comes as an improvement from the 1971 constitution which did not mention the independence

of the judiciary, article 74 states that the independence and immunity of the judiciary are two basicguarantees to safeguard rights and freedoms. However, the article fails to provide details on the

guarantees of the independence of the judiciary.

Recently, the judiciary has come under severe scrutiny by the executive branch with President Morsy's

latest Constitutional Declaration issued on November 21st which directly infringes on the independenceof the judiciary as Article 2 of the declaration puts all previous constitutional declarations, laws, and

decrees made by the president since he took office on 30 June 2012 immune as all lawsuits related to

them and brought before any judicial body against these decisions are annulled. The declaration even

went further to state that no judicial body can dissolve the Shura Council [upper house of parliament]or the Constituent Assembly. This decision came as the Presidency anticipated a decision by the

Supreme Constitutional Court (SCC) on the dissolution of the Constituent Assembly. On December 3 rd,

protesters encircled the SCC, preventing the judges from entering and hence postponing the hearing onthe Constituent Assembly. As a response, the judges of the SCC released a statement announcing the

suspension of their work until they could resume work without "psychological and physical pressures."

The constitutional declaration of November 21st was canceled and replaced by another constitutionaldeclaration released on 9th of December 2012 which provides that instead only the President's

constitutional declarations cannot be challenged before any court.

The SCC was not spared by the final draft constitution. While the constitution did not change the

number of judges of any other judicial institution, it decreased the number of judges for the SCC to 10instead of 16. Many have claimed that this decision comes to dismiss judges who have been vocally


6/6

attacking the Muslim Brotherhood. Regardless of the reasons for this change in numbers, Article 176

has again failed to set out guarantees for the selection of judges, and has left the matter to the law.

Furthermore, Article 173 fails to explicitly indicate the guarantees for the independence of the Public

Prosecutor as well as the criteria for his appointment. The Constitutional Declaration issued onNovember 21st, includes the substance of this article, however, it failed to include the consultation of

the Supreme Judicial Council, as required by the current constitution. While demands for the removal

of the Public Prosecutor have been made since the beginning of the revolution, activists raised theirconcern over the way the former Prosecutor was removed, and questioned the independence of the newPublic Prosecutor. The new constitution missed the golden opportunity to settle the critical ongoing

debate over the independence, and the process of selection of the prosecutor.

On the Status of International Law

Article 145 identities international law as having the force of law, hence failing to uphold internationallaw at a higher standard than national legislations. Unlike the 1970 constitution, international treaties

now need to be approved by both legislative councils, before ratification. At the same time, there is no

mention of Egypt's international legal obligations in any of the provisions. Universal human rights

standards are clearly set aside of the proposed constitution.

On Military Trials for Civilians

Article 198 comes in contradiction with Article 75 where it states that No person shall be tried except

before their natural judge; exceptional courts are prohibited. The demand to put an end to military

trials for civilians has been at the front of human rights movements and organizations in Egypt asmilitary trials have been used excessively to target political opposition during Mubarak's era, and have

been used by SCAF during the transitional period, leading to the trial of at least 12,000 civilians as of

August 2011. Military trials have no guarantees for the rights to fair trial, as echoed by the reports of

injustices faced by people tried before military courts. It is important to note that the draft of November11 stated that No civilian shall be tried before the military justice system, however this was removed

as per the request of the military representatives in the Constituent Assembly. The article's vague

languages of crimes that harm the Armed Forces gives the military the opportunity to define thecrimes exclusively, under the code of Military Justice.

It is also important to note that the provision refers to the military judiciary as independent, however,the code of military justice leaves this body with little independence.

On the Police

One of the main reasons behind the demonstrations of January 25th 2011 which sparked the beginningof the popular uprising, was the protest against the systematic use of torture and brutality by the police.

However, the constitution fails to address another major demand of the revolution, which is to include

guarantees to ensure that the police do not violate the law and human rights. Article 199 fails to provide

mechanisms to prevent such abuses; and it fails to state that police stations should be subjected tojudicial supervision.

egypt constitution

Documents