The ACIJLP emphasizes the need to draft a new constitution for the country Away from conflicts and political adjustments

 Cairo, August 29, 2013

The ACIJLP emphasizes the need to draft a new constitution for the country

Away from conflicts and political adjustments

The Arab Center for Independence of the Judiciary and the Legal Profession (ACIJLP) expresses its deep concern on the amendments to the inactivated Constitution of 2012, which introduced by the Committee of Experts provided for in article 28 of the Constitutional Declaration issued on 8^th July 2013.

The ACIJLP gives some of the observations reached to be put into consideration by the formed Committee in accordance with article 29 of the Constitutional Declaration.

First, some general observations on the amendments to the inactivated Constitution of 2012:

·        The preamble to the Constitution after the amendments is completely emptied of any reference to the 25^th January revolution and its last part of June 30, 2013, without paying attention to the fact that the January Revolution is the revolutionary pillar of toppling the constitution of 1971 and the Revolutionary basis for drafting a new constitution.

·        the preamble also avoided any reference to the desire of the sincere Egyptian, in turning the page on the past and the scourge of violations, and avoided the desire to take actions and measures of national reconciliation that adopt measures to reveal the truth   based on equity and bringing those involved in the violations to accountability, compensating the victims, immortalizing memory and pledging to prevent the repetition of past crimes.

·        There amendments are emptied of clear provision stating that any constitutional or legislative provision should not be understood in contravention of the provisions of the Rome Convention of 1998, which does not invoke any immunity for those involved in the most serious crimes and violations of human rights.

·        the texts and provisions, which refers to the criminalization of crimes against humanity and obsolescence are not developed.  In addition, the constitution ignored the respect to the conventions and commitments related to the protection of human rights, and ignored their place in the internal legislative pyramid. The constitutional amendments also kept a negative constitutional vision regarding the international covenants and commitments related to human rights, under the claim they contravene the provisions of the Constitution, as contained in article ( 126 ) of the draft amendment to the Constitution, which provides that " ...... in all cases no treaty may be concluded that contravene the provisions of the Constitution ... "

·        Perhaps it would be acceptable to agree on such a text in the event that the constitutional document contains explicit provision that shows respect for the State covenants and commitments related to human rights. The provision of article "151" of the Constitution of the 1971 was much better, to a degree, regarding signing the international treaties and covenants. The amendments did not identify the place of the international and regional instruments on human rights for national legislation.

·        The amendments did not put into account to adjust and develop, the formulations related to freedom of religion and belief and worship.

·        The amendments did not tackle the guarantees for a fair and equitable trial, in accordance with international standards, as well as the independence of the judiciary, in the light of the amendments remains incomplete.

Second: Observations of the ACIJLP on some of the provisions of the amendments to the inactivated Constitution of 2012:-

·        Amendments to the provisions of the constitution kept the provisions which are characterized by redundancy non-specific explanation such as Article (10) related to the desire to maintain the original character of the Egyptian family.

·        Amendments have created a state of confusion among many of the rights and freedoms provided for in the article ( 14 ) " Peaceful strike is a right organized by the law," while the strike is a negative reaction to temporary and collective refrain from work, and is a peaceful reaction, unlike demonstrations and gatherings, and on the other the amendment enable the legislature to violate this right and restrain it. Therefore, the amendments should state that "the strike is a right guaranteed by the Constitution and the law".

·        the amendments left the provisions which did not deserve to be a constitutional texts, and even ordinary legislation, although, its drafting and provisions are very similar to executive regulations of regular laws and legislation in terms of tackling many of the details that are not commensurate with technical drafting of the constitutional texts, and addresses problematic progress faced by the Government, such as eradication of illiteracy as mentioned in article ( 21 ) of the draft amendment to the Constitution although it is not the subject of  a constitutional provision and in this case there is need to address all the problems of security, traffic infrastructure, housing, etc.

·        relevant articles of personal freedom and right to a fair and equitable trial, such as article ( 39 ) reduce the legal guarantees of persons arrested and restrict their freedom as the article provided for "informing the arrested in writing of the reasons for the restriction of his freedom, and to be delivered to the authorities of the investigation within 24 hours, and the corresponding provision in  article 71 contained in the Constitution of 1971 is much better as it provided for the necessity of presenting the arrested person immediately to the investigation authorities and enable him to contact who desire to inform them. This is last the guarantee which is not contained in the Constitution in order to enhance the legal protection of detainee such as forced disappearance and torture. This article did not develop constitutional safeguards to prevent abuse of preventive detention.

·        article (40) of the amendments relevant to appropriate treatment, and the prohibition of torturing the arrested or detained persons waived voluntarily the criminalization of any person who violates the provisions of this article, by deleting the paragraph which stated " any violation of this kind is a crime punishable by whomsoever committed in accordance with the law," although providing for it in the corresponding article in the Constitution of 2012, article (36).

·        The ACIJLP also refers to the continued presence of many of the contradiction between the articles of the Constitution and the contradiction of the provisions of the same article such as in article 57, for example, which provides for the freedom of establishing Trade Unions, and then comes the deficiency of this article that provides for the establishment of one trade union for each profession.

·        Amendments to the Constitution of 2012, summoned the provisions of the provisions of the 1971 Constitution, for example, Article 71 of the amendments represented a severe decline from the corresponding Article of the Constitution of 2012, Article (77) because it retrieved the provisions of Article (67) of the 1971 Constitution, while stipulates that " A defendant is innocent until proved guilty in legal trial, "and replaced the term" legal trial "in the amendments by the term" fair trial "in the Constitution of 2012, note that the controls of the legal trial is drafted by the legislator. These controls could be subject to review and constitutional control in terms of their agreement or disagreement with the constitutional concepts and values in its entirety. The amendments also ignored the difference between a fair and equitable trial, and legal trial. The latter added constitutional guarantees to many of the special trials which drafted by the legislator, such as the state security courts and the security of the state of emergency, for example.

·        Article 74 of the amendments represented a decline that has two sides. first, it has deleted some of the provisions of Article (80) of the Constitution of 2012 related to the right of the injured from any attack who has the rights and freedoms guaranteed by the Constitution to file criminal proceedings directly before the criminal courts, second it has reduced the role of the National Council for human Rights, which was in accordance with Article (80) of the Constitution of 2012 is entitled to inform the public prosecution for any violation or an assault on constitutional rights and freedoms to join the injured in the civil suit, and the appeal in favor of the injured in the verdicts. It also limited its role in the amendments by giving the council just the right to inform the public prosecution. Hence, the provisions of this article appear as if not opposing the culture of impunity.

·        Article (162) of the amendments represented a decline regarding the selection and appointment of the public prosecutor, and reduced the role of the Supreme Judicial Council in this regard, while Article (173) corresponding to the Constitution of 2012 "The Public Prosecution is conducted by a Prosecutor General appointed by the President of the Republic, based on the selection of the Supreme Judicial Council" however, article (162) of the amendments make the appointment of the Public Prosecution by a decision of the President of the Republic, after the approval of the Supreme Judicial Council, bringing down the role of the Supreme Judicial Council in the appointment of the Public Prosecutor and instead of the selection of the Public Prosecutor by the council, they take the council's opinion only.

The ACIJLP points out that the Constitution of 2012 and its deficiencies, whether related to the process of the formation of the Constituent Assembly entrusted with drafting the constitution or through its provisions and articles make it logical to start drafting a new constitution for the country, without considering conflicts and political adjustments.

The ACIJLP asserts that the Constitution or amending its articles is not an end in itself, or abstract rules which are drafted and not applied, but it performs its role when it is applied among people professing values, and takes positions expressed by the existing legislation. Ignoring these values makes the Constitution separate from the group and leads them not to obey it.

The ACIJLP points out that the fruitful amendments of the constitution or developing a new constitution, requires the interaction of parties and political and social forces and civil society organizations make these amendments the result of the interaction of these parties in a way, where opinion of certain parties may win over others but they all remain in the circle of positive impact.

The ACIJLP believes that there is an urgent need in Egypt at this time that requires the Constitution, its values, concepts and provisions to pay attention to relations that govern the system of people's lives as a whole, and to deal with a set common goals targeted by the people as a whole and the methods taken to reach those goals taking into account the purposes of the constitutions, as in the democratic systems and good governance including the development of a free and vital civil society, strong and independent political system, the rule of law and the independence of the judiciary to secure the freedoms of citizens, capable and responsible bureaucracy in addition to institutional economic community.

These issues require the need to develop a new constitution for the country in accordance with the regulations and standards in force in the development of constitutions, as the Constitution of 2012 and its amendments by the Committee of Experts referred to, reveals clearly the apparent contradiction between the Constitution and the economic, political and social development experienced by Egypt at this time, including reinforcing the call to a new constitution for the country. Moreover, the amendments to the inactivated Constitution of 2012 reveal the absence of constitutional integrated vision while came scattered and uncorrelated, keeping the provisions of the constitutional protection of rights and freedoms that lacks any legislative or judicial or administrative measures to protect and ensure its exercise through the use of expressions like "preserved - guaranteed" as a substitute for expressions related to the protection of the rights, which contrasts with the concept of the constitutional document, which means the obligation of each state authorities.

Most of the amendments took place in the orbit of the Constitution of 1971, falling by the January revolution, and did not get rid from the idea of inactivated Constitution.