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Constitutional Coup Against the Principles of the Revolution

The Egyptian Center for Economic and Social Rights expresses deep concern over the recent Constitutional Declaration. The Declaration is not a simple procedure that can be prepared in this manner, since it is a basic foundation for planning the roadmap to transition and for controlling its outcomes. It will either produce a safe path [for transition] or lead to catastrophe. It is not merely a question of the timetable contained in the Declaration, but of the rules to be applied on society and the path the transition will take.

Therefore, it should have been discussed with all revolutionary, political, and rights groups before being announced, to reach consensus on the basic tenets of this period and guarantee the protection of individual rights and freedoms, on one hand, and ensure a balance of power, on the other. However, the announcement of the Constitutional declaration came all of a sudden and was published in the Official Gazette, Issue 27bis.(a) on 8/7/2013, without any discussion with revolutionary forces or political parties.

ECESR believes the majority of the text conveys a inclination towards a constitutional coup against the principles of the January 25 Revolution and consider that there is no substitute to amending the Declaration with texts leading to setting the ground for the achievement of the principles of the revolution and not as a coup against it. In this context, ECESR provides its own reading and recommendations for the Constitutional Declaration, which are as follows:

1. It is politically unacceptable for the Constitutional Declaration to be prepared in the same manner in which Mohammed Morsi announced his own Declaration in November 2012, which was rejected by all political forces. Both times, the Presidency prepared the declarations without consultation with other forces. Moreover, they carry the same spirit and rules giving the President absolute powers. It is also strange that the same justifications are repeated in reply to opponents, by saying that these rules are only temporary and until the declaration of the constitution and the referendum thereof.

2. It is unacceptable morally and politically for the rules contained within the Declaration to be regressive in their protection of the rights and freedoms of individuals compared to 2013 Constitution. At least, the Declaration’s drafting committee should have respected the stipulations of the 2013 constitution, as a bare minimum that cannot be lowered. This setback will be explained in several points below.

3. The Declaration accommodates unjustified sectarian bias. The content of Article 219 of the 2013 Constitution–which was rejected by the revolutionary forces–was incorporated into Article 1 of the Declaration, which considers “…the principles of Islamic sharia, which includes the jurisprudence, basic tenets, and authoritative sources in the doctrines of the people of Ahl al-Sunnah wal-Jamaa, are the main source of legislation.”

The Declaration did not state that the principles of the doctrines of Christian or Jewish Egyptians would be the main sources for legislation concerning their personal status, religious affairs, and the selection of their spiritual leaders.

It should have remained satisfied with the text of the 1971 constitution, which stated that “the principles of Islamic sharia are the main source of legislation.”

4. The Declaration marginalizes economic and social rights and only contained three related issues. First, it stated that the economic system is based on social justice. Second, it affirmed the right to work as a duty and honor, guaranteed on the principles of equality and justice. Third, it stated that the President of the Republic is charged with protecting social justice.

The Declaration repeated the mistakes of previous constitutions, re-constitutionalizing indentured labor through clearing the way for forced labor through Law.

The Declaration ignored the remaining economic and social rights, such as the right to housing, health, medical treatment, food, drink, clothes, insurances, pensions, social security, the minimum and maximum wage, linking wages with prices, and the right to worker representation on corporate boards and in profit sharing, etc.

This disregard cannot be ignored by claiming that this is merely a transitional Constitutional Declaration and cannot include additional texts. This is for two reasons. The first is that economic and social rights are basic rights, like public freedoms, which cannot be disregarded in any constitutional document, since this would indicate a bias against such rights and would make it easier for authorities to retreat from them during the Declaration’s entry into force. Second, the Declaration contains 33 articles. However, only a single article deals with the right to work, while the remaining are on public freedoms and the path for transition.

Needless to say, relative and constitutional balance required that the Declaration sets several articles on economic and social rights. However, the current draft could only mean the absence of political will to achieve social justice and the failure to commit authorities to this goal through constitutional rules, merely using the phrase “social justice” twice as legislative ornament.

5. Article 7 of the Constitutional Declaration on the freedom of opinion and belief is a setback to these rights, compared with their status in Articles 43 and 44 of the 2013 Constitution.

a. The text settled for the freedom of opinion without stipulating the freedom of thought, contrary to the 2013 Constitution, which included them jointly. We recommend the following amendment: “freedom of thought and opinion are guaranteed…”

b. The 2013 Constitution had stated, “Each human being is entitled to expressing and publishing opinion, whether spoken, written, in pictures, or any other medium for expression.” The current Declaration kept the same principle, but added the phrase “within the limits of the Law,” which we suggest to remove.

c. The Declaration upholds the freedom of religion and practicing religious rituals for Abrahamic religions, however it disregarded their freedom to establish places of worship, as was stipulated in Article 43 of the 2013 Constitution.

6.Article 8 of the Constitutional Declaration deals with the freedom of the press, publication, and all other media. Paragraph 2 of the article expanded restrictions on this freedom. It stated, “Exceptionally, in the case of the declaration of a state of emergency or in time of war, the press, publications, and the media could be subjected to limited censorship in matters related to national security, all in accordance with the law.”

The 2013 Constitution, in Article 48, did not stipulate such restrictions, except in time of war or general mobilization. The state of emergency was not included in the exceptions, which indicated a setback in the Declaration, which should at least abide with rules of the 2013.

7. Article 10 of the Declaration, withdrew the right to establish parties, associations, and foundations through notification, relegating back to the Law, despite the 2013 Constitution allowing for their establishment through notification and that the law only regulates the notification.

The Declaration also allowed the dissolution of associations, foundations, unions, syndicates, or their executive boards through administrative decisions. The 2013 Constitution had stipulated that their dissolution or that of their administrative boards could only be through a court decision. This issue was ignored by the Constitutional Declaration and was only stipulated in the case of political parties, meaning that the constitutional legislator decided to only prohibit the dissolution of parties through a court decision. However, associations, foundations, unions, and syndicates or their administrative boards could be dissolved without a court order.

8. Article 11 of the Constitutional Declaration repeated the same old mistakes. It allowed the expropriation of property for public good through administrative decision. We suggest that the appropriation of private property should only be through a court order, which will allow the judiciary to monitor the reasons of expropriation, its legitimacy, relation to public good, or other issues.

9. Article 12 of the Declaration, on personal freedoms and sanctity of private life, states that crimes against them do not have a statute of limitations. However, the Declaration lacked the guarantee included in the 2013 Constitution, which allowed the injured party to take criminal action directly without waiting for the Prosecution. It also removed the right of the National Council for Human Rights to report on them. Therefore, we suggest the following two additional paragraphs to the articles:

“The plaintiff may take criminal action directly thereof.

The National Council for Human Rights may report to the Prosecution any violation of those rights, jointly intervene in the civil action with the plaintiff, and appeal rulings of his behalf.”

10. Article 17 of the Declaration stipulated that the State Council is an independent judiciary body specialized in adjudicating administrative disputes and disciplinary measures and that the Law would set its remaining terms of reference. This is a setback from Article 174 of the 2013 Constitution, which had been conclusive in its terminology that it was the only judicial authority adjudicating in all administrative disputes. The 2013 Constitution had also been conclusive concerning its authority to look into all disputes related to the implementation of its decisions, which closed the door on execution complaints by the state or individuals to the regular courts to reverse the rulings of the State Council. The previous constitution also maintained the Council’s power of interpretation in legal matters for sides set by the law, in addition to reviewing contracts where the state is party. All the previous matters were ignored by the Constitutional Declaration.

Therefore, we suggest the amendment of Article 17 of the Declaration by including a text similar to Article 174 of the 2013 Constitution.

11. Article 18 of the Declaration, concerning the Constitutional Court, described it as “an independent and autonomous judicial body,” while the text on the State Council in Article 17 of the same Declaration said it was “an independent judicial body” and the word “autonomous” was not used. This is clear discrimination in favor of the Constitutional Court, compared to other judicial bodies. In this context, we propose either the addition of the term “autonomous” in Article 17 or removing it in Article 18. We believe this discrimination is a reflection of the imbalance in the components of the committee that prepared the Declaration, which consisted of a representative of the army and two representatives who had previously worked in the Constitutional Court, in addition to the head of the Constitutional Court being appointed as President of the Republic. This issue should have led them to be more precise and not discriminate in favor of the Higher Constitutional Court against other judicial bodies, even it was the highest of such bodies.

12. Article 19 of the Constitutional Declaration, concerning military courts opened the way for the constitutionalization of military trials for civilians, ignoring the stipulation of prohibiting military trials for civilians. We suggest the article becomes as follows:

“The Military Court is an independent judicial body, specializing in crimes related to the armed forces, its officers, and members. Other specializations shall be set by Law.”

“In all cases, civilians shall not be tried in military courts.”

“Members of the Military Court shall be independent, cannot be dismissed, and benefit from all the guarantees, rights, and duties of members of judicial bodies.”

13. Article 24 of the Declaration allows the President to combine both executive and legislative powers, which represents an imminent threat that had always been criticized by ECESR, due to being a fertile ground for creating a state of tyranny, which we are in desperate need to avoid. In this context, we propose that the General Assembly of the Fatwa and Legislation departments of the State Council be accorded legislative power until the creation of the parliament. This is for several reasons:

a. Achieving balance to separate between legislative and executive powers.

b. The Assembly is composed according to the text of the law and there is no personal or political bias in its formation, guaranteeing the necessary neutrality for such a mission.

c. The Assembly has legislative, legal, and constitutional competencies and authorities, making it well suited for this role.

d. The Assembly is composed of several judges and not just one person, even if it were the President of the Republic, allowing it to perform this role and providing a space for discussion and intellectual diversity.

14. Article 27 of the Constitutional Declaration deals with rules for declaring states of emergency, stipulation their declaration from the President of the Republic after the approval of the Council of Ministers. In this regard, we suggest the addition of the condition of approval by the General Assembly in the Fatwa and Legislation Department of the State Council or the Directorate of Unity Principles at the Higher Administrative Court. This is so that the declaration of such a state would not be only in the hands of the executive power. Such an exceptional case represents an attack on the rights and freedoms of individuals, which necessitates the necessary guarantees to avoid the arbitrariness in announcement by the Executive.

15. Article 28 stipulated the formation of a committee of ten experts to propose amendments to the suspended constitution, with two members from the Constitutional Courts, two from the regular courts, two from the State Council, and four professors of constitutional law chosen by their councils and the Higher Council for Universities. It should be noted that the committee attempted at being representatives of all those in the legal profession. However, it neglected the Lawyers Union and rights organizations, which we propose to be represented by one person each.

16. Article 29 of the Declaration calls for the formation of a social committee for drafting the constitution, composed of 50 members, including at least 10 women and 10 youth representatives at least. We propose the number is raised to 100 members, where at least one quarter is women and one quarter is youth. We also propose setting criteria for selecting all members of the social committee.

17. The declaration ignores standards and guarantees for the integrity of the electoral process and referenda. It merely mentioned a higher committee for elections, but did not state clearly that it would be completely supervised by the judiciary. It also failed to specify rules for local and international monitoring [of elections] or set rules for Egyptians voting or running for elections abroad.

18. The Declaration ignored the rights of the martyrs and wounded of the revolution.

19. The Constitutional Declaration neglected to add several items to organize essential issues, such as: the police, manner of selection and authorities of the Vice-President, authorities of Deputy Prime Ministers, and ensuring the right to knowledge and the freedom of information.