Source: Amnesty International
A draft constitution approved by Egypt’s Constituent Assembly falls well short of protecting human rights and, in particular, ignores the rights of women, restricts freedom of expression in the name of protecting religion, and allows for the military trial of civilians, Amnesty International said.

“This document, and the manner in which it has been adopted, will come as an enormous disappointment to many of the Egyptians who took to the streets to oust Hosni Mubarak and demand their rights,” said Hassiba Hadj Sahraoui, Deputy Director for the Middle East and North Africa at Amnesty International.

Freedom of religion is limited to Islam, Christianity and Judaism, potentially excluding the right to worship to other religious minorities such as Baha’is and Shi’a Muslims.

The constitution fails to provide for the supremacy of international law over national law, raising concerns about Egypt’s commitment to human rights treaties to which it is a state party.

Furthermore, the document fails to fully guarantee economic, social and cultural rights, such as protection against forced evictions - it also tolerates child labour.

Paradoxically demands for dignity and social justice were at the heart of the “25 January Revolution”.

“The process of drafting the constitution was flawed from the outset, and has become increasingly unrepresentative. We urge President Morsi to put the drafting and referendum process back on the right path, one that includes all sectors of society, which respects the rule of law – including the vital role of an independent judiciary – and results in a constitution that enshrines human rights, equality and dignity for all,” said Hadj Sahraoui.

Amnesty International has expressed concern that the assembly - widely boycotted by opposition political parties and Christian churches - is not truly representative of Egyptian society. The body is dominated by Freedom and Justice Party and the Nour Party. At the outset, the assembly only included seven women and their numbers have since dwindled.

Opposition political parties have withdrawn their members from the assembly, as have Christian churches, in protest at the assembly’s make-up and decisions.

They have voiced a number of concerns, including the lack of representation of young people, of a variety political parties, and the role of Shari’a law has played – including in respect of women’s rights.

The assembly also faced criticism for not doing enough to enshrine the right to adequate housing – a key concern for the estimated 12 million Egyptians living in slums.

A decree issued last week by President Morsi gave the Constituent Assembly an additional two months to complete its work. However on Wednesday the body announced that it would finalize the text in a day. Yesterday, the draft was rushed through a plenary session of the assembly, with no time for real debate or objections from the members.

“The new constitution will guide all Egyptian institutions and it should set out the vision for the new Egypt – one based on human rights and the rule of law: a document which is the ultimate guarantor against abuse. The constitution must guarantee the rights of all Egyptians, not just the majority.” said Hadj Sahraoui.

“But the approved draft comes nowhere near this. Provisions that purport to protect rights mask new restrictions, including on criticism of religion. Women, who were barely represented in the assembly, have the most to lose from a constitution which ignores their aspirations, and blocks the path to equality between men and women. It is appalling that virtually the only references to women relate to the home and family.”

When asked about the lack of women’s rights in the draft constitution yesterday in a state television interview, President Morsi said women were citizens like all others. The President’s position mirrors the approach of the Constituent Assembly in ignoring the rights of women.

The vote to approve the constitution came ahead of a 2 December ruling on the assembly’s legitimacy by the Supreme Constitutional Court, which was widely expected to order the body’s dissolution.

President Morsi’s decree, which was announced on 22 November, prevents any judicial body from dissolving the assembly.

The decree, which also removed the Public Prosecutor, granted the president sweeping powers and stopped the courts from challenging his decisions, has sparked widespread anger and protests in Egypt.

Opposition groups plan to march to the presidential palace today (Friday), while the Muslim Brotherhood has called for a protest to support the President on Saturday.

The draft constitution now passes to a national referendum which must take place within 15 days. Any such referendum would require supervision by judges but Egypt’s Judges Club, an independent network of judges numbering some 9,500 members, has announced that its members will not take part.

Judges throughout the country are striking in protest at President Morsi’s decree, which they see as a threat to their independence.

“Instead of marking a return to order and the rule of law, the adopted text of the constitution has plunged Egypt into even greater chaos and deadlock,” said Hadj Sahraoui.

In depth

Amnesty International's concerns about the draft include:

• The constitution makes no reference to international law obligations, and does not provide for the supremacy of international law over Egyptian legislation. Though Egypt is a state party to a number of international human rights treaties, including the International Covenants on Civil and Political Rights (ICCPR), and Economic, Social and Cultural Rights (ICESCR), and the Convention on the Elimination of All forms of Discrimination against Women (CEDAW), the constitution does not explicitly set out Egypt’s obligations under each provision of those treaties, or make them directly enforceable to all individuals under Egyptian law.

• Article 33 states that citizens “are equal in public rights and duties and they shall not be discriminated against”. However, this article only protects Egyptian citizens, and not others such as refugees, asylum-seekers and migrants. Furthermore, a list of specific prohibited grounds, which included sex, religion and origin, was removed in the last draft, failing to mirror the non-exhaustive formulation contained in the International Covenants, as interpreted by the Human Rights Committee and Committee on Economic, Social and Cultural Rights.

• Amnesty International is particularly concerned that the constitution does not explicitly prohibit discrimination on the grounds of gender. Article 10 says that the state will work to strike a balance between the family duties of women and their work in society. The organization is further concerned that Article 219, which defines the principles of Shari’a law as being the “fundamental rules of jurisprudence,” may impact on the rights of women, and may be used as a justification to uphold legislation which currently discriminates against women in respect of marriage, divorce and family life. Article 2 establishes Shari’a law as the primary source of legislation.

• Article 36 prohibits torture and other ill-treatment, including the use of “confessions” extracted under torture in criminal proceedings; however, Article 219 may allow for the imposition of corporal punishments that violate the prohibition of cruel, inhuman and degrading punishment.

• Article 198 explicitly allows for the unfair trial of civilians before military courts – a provision apparently added at the insistence of the army representative in the assembly. Under the 17-month rule of the army from February 2011-June 2012, over 12,000 civilians were tried unfairly by military courts. The end of such trials had been a key rallying cry for protesters. Amnesty International opposes the trials of civilians by military courts, which are fundamentally unfair and breach a number of fair trial safeguards, including the right to a fair and public hearing before a competent, independent and impartial tribunal established by law; the right to have adequate time to prepare a defence; the right to be defended by a lawyer of one’s choosing; and the right to appeal against conviction and sentence to a higher tribunal.

• Article 43 restricts freedom of worship to “heavenly religions”, to adherents of Islam, Judaism and Christianity, and therefore leaves other religions and religious groups such as Baha’is felt without protection of freedom of worship. Article 3 ties personal status laws to religious law; and, as regards religious minorities, only provides for Christians and Jews the right to regulate their religious affairs and spiritual leadership. It is also unclear the extent to which religious minorities such as Shi’a and others will be protected by the provision; in the past they have faced discrimination in their right to worship.

• Article 44 prohibits “undermining or subjecting to prejudice all messengers and prophets.” Similar provisions have been used in Egyptian law to restrict freedom of expression, and under President Morsi, charges have been brought against a number of individuals for “defaming religion”. Article 31 prohibits insulting and defaming any person, a provision which violates the right to freedom of expression and similarly provides for defamation to remain a criminal offence. The two provisions seem to undermine Article 45, which guarantees freedom of expression and opinion, and violate Egypt’s obligation to uphold freedom of expression under Article 19 of the ICCPR.

• The constitution does little to enshrine economic, social and cultural rights although demands for dignity and social justice featured prominently in the demands of protesters who toppled Hosni Mubarak.  Amnesty International is particularly concerned that Article 67, while it mentions the right to adequate housing, does not explicitly prohibit forced evictions. The organization has long documented such evictions in informal settlements, which are illegal under international human rights law.

•  The constitution has also failed to protect the rights of children. It does not define a child as any person under 18 years of age, as provided for in the Convention on the Rights of the Child (CRC), and does not protect children from early marriage. Furthermore, Article 70 permits children who are still in primary education to work, as long as the work is “adequate for their age”. The article does not ensure children are protected from economic exploitation and from performing any work that is likely to be hazardous, as required by the CRC. The constitutional provisions also fail to comply with other treaties on children’s rights ratified by Egypt, including the Minimum Age Convention, and the Worst Forms of Child Labour Convention.
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    President Morsi's decree overriding judicial authority has sparked widespread protest

    © Matic Zorman / Demotix

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