GENEVA (7 December 2012) -- The UN High Commissioner for Human Rights, Navi Pillay, expressed alarm Friday at the rising tension and recent deaths and injuries during protests related to Egypt’s draft Constitution, while also drawing attention to a number of major problems with the text which is due to be put to referendum on 15 December.
Pillay welcomed President Morsi’s call for dialogue on Thursday but regretted there was no significant progress on the core issues relating to the Constitution.
The High Commissioner raised serious concerns about the process leading up to the referendum, and said her Office had been carefully analysing the contents of the draft Constitution, as well as monitoring the Constitution-drafting process.
“The lack of inclusive participation of various actors in Egypt in the constitution-drafting process is a matter of major concern, and one of the main reasons for the disastrous situation that has been developing in Egypt over the past couple of weeks,” Pillay said. “This is the last thing Egypt needs during such a difficult period of transition, but I believe people are right to be very concerned -- not just about the way the process has been short-circuited, but also about some of the elements included in, or missing from, the draft text.”
The High Commissioner noted that the draft Constitution contained some important positive elements, including for example the limitation of the presidency to two four-year terms and the inclusion of the right to establish associations and civil institutions.
“The draft constitution provides guarantees to some human rights,” Pillay said. “However, there are also some very worrying omissions and ambiguities, and in some areas the protections in it are even weaker than the 1971 Constitution it is supposed to replace. I am highly concerned, for example, by the absence in the current draft of any reference to the international human rights treaties which Egypt has ratified, and is bound to uphold. The 1971 Constitution, by contrast, stipulated the legal standing of these treaties.” *
“I also regret that the draft constitution, in many of its provisions, refers to legislation currently in force in the country which may already be at odds with international human rights norms. I believe that the applicability of international law over national law should be clearly stated in the national Constitution, in order to prevent subsequent or existing national laws undermining or conflicting with international law,” Pillay said.
While noting that the draft constitution guarantees equality before the law in rights and duties with no discrimination, the High Commissioner noted that "it does not explicitly prohibit discrimination on the grounds of gender, sex, religion and origin," while maintaining the language in the 1971 Constitution concerning Sharia Law as the primary source of legislation and jurisprudence.
“The draft constitution guarantees the freedom of faith, but only mentions the three monotheistic religions, raising concern for all other religious groups including resident minorities such as the Baha'i community,” Pillay said. “This makes it less inclusive than the 1971 Constitution, and opens the door to breaches of Egypt’s obligation under international law to honour everyone’s right to freedom of thought, conscience and religion.”
While the freedom of press is guaranteed to an extent, limitations include respect of private life and national security. Censorship of the press is forbidden, except in times of war and when armed forces are mobilized. However, the role of the National Council of the Media in regulating the profession could be very problematic, the High Commissioner said.
“I am also preoccupied by Article 198, which prohibits the trial of civilians before military courts, but provides for an exception in relation to crimes committed against armed forces as defined by law. This Article appears to be in contradiction with international standards due to the wide interpretation of crimes under which civilians could be tried by military courts in existing legislation,” Pillay said.
“Article 232 of the draft text purports to constitutionalise a law that was declared unconstitutional by the Supreme Constitutional Court, which is extremely unfortunate,” she added. “This article, which calls for leaders of the defunct National Democratic Party to be banned for 10 years, leads to the exclusion of far too broad a range of people from their political rights. A process of transitional justice, including the vetting of past senior officials, is needed to ensure they have not been involved in human rights violations. However, a ban without any such a process could lead to Egypt being deprived of the services of some very experienced politicians and administrators who are not suspected of any serious crime or misdemeanour that would warrant their exclusion from participating in public life,” she added.
Pillay also expressed concern about the absence of any explicit guarantee of the independence and mandate of the National Human Rights Institution in Egypt in line with the international set of standards known as the Paris Principles.
“For human rights to have meaning in any society, they must be guaranteed by law and enforced by independent courts,” the High Commissioner said, pointing to concerns regarding article 176 of the draft constitution. “This provision also marks a serious step backwards from the 1971 constitution, which stated that judges of the Supreme Constitutional Court cannot be removed from their positions,” she said. “The draft constitution provides for the direct appointment of judges to the Supreme Constitutional Court by the President, which risks giving the Executive excessive power over the judiciary. This concentration of power in the hands of the President -- like the provisions of the President’s Constitutional Declaration -- undermines the independence of the judiciary.”
“The haste with which the Constituent Assembly adopted the final text for Presidential action, and many of the surrounding circumstances, have put into question the credibility of the process, and contributed to the chaos in Cairo and other cities,” Pillay said. “Urgent steps are needed to restore confidence in the process, and in the country’s all-important new Constitution, on which so much depends.”
* Egypt is a State Party to the following international human rights treaties: The International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention Against Torture; the Convention on the Elimination of Discrimination Against Women; the Convention on the Elimination of Racial Discrimination; the Convention on Migrant Workers; and the Convention on the Rights of the Child.
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